A Tool for the Plaintiff Attorney's Toolbox
| Publication year | 2012 |
| Pages | 0018 |
by Joseph G. Mitchell
This article discusses service issues in connection with filing a lawsuit close to the applicable statute of limitations.
Not Perfecting Timely Service
According to O.G.C.A. § 9-11-4(c), service of a summons and complaint will relate back to the time of filing if the service processor perfects service upon the defendant within five days of the filing of the summons and complaint. This code section also specifically provides that "failure to make service within the five-day period will not invalidate a later service."[1]
When service of a summons and complaint occurs after the five-day period prescribed in O.C.G.A. § 9-11-4(c), the test for determining if service will relate back to the time of filing is whether the plaintiff ""acted reasonably and diligently to ensure that proper service was made as quickly as possible.'"[2] The burden is on the plaintiff to show that he was not at fault in unreasonably delaying service and was not guilty of laches.[3] Lack of reasonable diligence in perfecting service of the summons and complaint ultimately may cause problems for the plaintiff.
What if service of the summons and complaint is unreasonably delayed?
In Hobbs v. Arthur,[4] Hobbs filed his lawsuit two days prior to the expiration of the applicable two year statute of limitations for personal injury cases. Personal service of the summons and complaint on defendant Arthur did not occur within five days of filing. Service of the summons and complaint actually occurred two months after filing the summons and complaint. Hobbs did, however, perfect proper personal service; he just perfected such service without being reasonably diligent, and he did not act as quickly as possible.
Arthur raised this as a defense in his answer and moved to dismiss. Arthur argued that the untimely service of the summons and complaint should not relate back to the time of filing the original summons and complaint since Hobbs was not diligent in perfecting service.[5] In response to such motion, Hobbs filed a dismissal without prejudice pleading pursuant to O.C.G.A. § 9-2-61 (a).[6]
O.C.G.A. § 9-2-61 (a) provides: "When any case has been commenced in either state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, . . . provided, however, if the dismissal . . . occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once." Hobbs is clear, however, that the plaintiff must obtain proper service prior to dismissing his case without prejudice or else the original suit is void.[7] Further, the dismissal must occur in the original suit prior to a judicial determination or else, again, the original suit is said to be void, instead of voidable.[8]
Since Hobbs obtained proper service of the summons and complaint prior to a judicial determination, Hobbs could validly dismiss his original complaint without prejudice. When Hobbs re-filed the suit within six months of the dismissal date and obtained timely and proper service in the re-filed case, the Supreme Court of Georgia held that Arthur could not raise Hobbs' lack of diligence in the first case in his answer in the re-filed case.[9]
Pursuant to Hobbs, to the extent a plaintiff perfects proper service, and a judicial determination has not occurred, the plaintiff need not worry about the timeliness of the service of the summons and complaint upon the defendant in the initial case. If the defendant raises the untimely service or running of the statute of limitation as an affirmative defense in the original matter, the plaintiff can file a dismissal without prejudice and re-file a second suit, timely perfecting service.
In, Robinson v. Boyd,[10] Boyd filed a personal injury lawsuit just prior to the running of the applicable statute of limitation. Boyd made no attempt to serve either defendant for almost five years. Boyd eventually did properly serve the defendants but clearly, Boyd did not act reasonably to serve the defendants as quickly as possible. Prior to the defendants' answering the original complaint, Boyd dismissed his original complaint without prejudice and re-filed his lawsuit under the provisions of O.C.G.A. § 9-2-61 (a).[11]With respect to the re-filed suit, Boyd timely served both defendants.
Both defendants raised in their answer the lack of diligence in Boyd's original lawsuit as an affirmative defense and moved for summary judgment based on that defense.[12]The Supreme Court of Georgia held in Robinson that the lack of diligence in the first lawsuit could not be a defense in the second renewed lawsuit unless it was an "extreme" case which would be so prejudicial that such circumstances would implicate due process.[13]Here, although service occurred almost five years after filing the summons and complaint in the original matter, and about seven years after the incident, this was held not to be an extreme case.[14]
However, very importantly, personal service of the summons and complaint upon the defendant is required for the plaintiff to employ this process. In a very recent case, Brasile v. Beck,[15] Brasile was injured in an automobile accident on Oct. 22, 2006. On Sept. 28, 2008, just prior to the running of the two-year statute of limitations, Brasile filed suit against the defendants. The defendants were served by publication service in the initial lawsuit because Brasile was unable to locate them. Brasile filed a dismissal without prejudice pleading in May 2009.[16]
On Aug. 5, 2009, Brasile re-filed her lawsuit and this time personally served the defendants. The Court of Appeals held that for Brasile to take advantage of the renewal statute, O.C.G.A. § 9-261 (a), she had to have personally served the defendants in the initial lawsuit "”publication service did not constitute a valid action for purposes of the renewal statute.[17]
To employ the dismissal without prejudice process and re-file to protect the plaintiff against the running of...
To continue reading
Request your trial