Service of Process in Georgia:  Items Every Trucking & Accident Injury Lawyer Should Know

photo 1.JPG

By:  John A. Houghton

After settlement negotiations have reached an impasse and the complaint has been filed, the Plaintiff's lawyer must check one last box before the discovery battle begins:  service of process on the defendant.  Georgia's law requiring personal service of a lawsuit may seem antiquated in the post-digital world, but nonetheless must be followed.  Often, the defense lawyer will be able to acknowledge service if his or her client consents.  However, many times traditional service must be perfected using a sheriff's deputy, county marshal, or court-approved private process server.  Failure to do so can create a host of problems moving forward with your case.

Under Georgia law, an individual may be served by delivering a copy of the summons and complaint to him personally "or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein." O.C.G.A. § 9-11-4(e)(7). An individual who is at least 15 years old is of a "suitable age" under this Code section. Trammel v. Nat. Bank of Ga., 159 Ga. App. 850, 852(1), 285 S.E.2d 590 (1981). "When weighing a defendant's affidavit against a return of service, which was the situation in the present case, a trial court is authorized to find the affidavit insufficient to overcome the presumption of correctness of the return of service." Shields v. Gish, 280 Ga. 556, 559(3), 629 S.E.2d 244 (2006). [Emphasis supplied]

Under Georgia law, “when a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” See Jacobson v. Garland, 227 Ga. App. 81, 84 (1997) citing Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 667-668, 476 S.E.2d 43 (1996). The process server’s “return of service can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” Id. [Emphasis supplied]

“Where a defendant claims there was a failure of service, the trial court has the authority to decide as a factual matter whether service has occurred. O.C.G.A. § 9-11-12(d). This finding will not be disturbed as long as there is 'some evidence to support' it.” Jacobson, 227 Ga. App. at 83.

Under Georgia law, “it is the duty of a defendant to accept and submit to the service of process when he is aware of the process server's purpose.” Winstar Development, Inc. v. Suntrust Bank, 308 Ga. App. 655, 660 (2011).  “It is generally held that if the process server and the defendant are within speaking distance of each other, and such action is taken as to convince a reasonable person that personal service is being attempted, service cannot be avoided by physically refusing to accept the summons.” Id. [Emphasis supplied].

The Georgia Court of Appeals has found service was proper where process server left papers outside of door after he spoke with the wife of the defendant, informed her that he was serving papers on her husband, and she knowingly attempted to evade service by closing the door and refusing to accept the papers. Jacobson v. Garland, 227 Ga. App. 81, 83(1), 487 S.E.2d 640 (1997).  Service was also found to be sufficient where papers left outside door after defendant was seen through the window and talked to through the door but refused to open the door. Hickey v. Merrit, 128 Ga. App. 764, 765, 197 S.E.2d 833 (1973).

Some defendants will assert a 'laches' or 'unclean hands' defense arguing that the Plaintiff is guilty of not diligently pursuing service.  However, service is not invalidated merely if it was effected outside of the 5 day period. See O.C.G.A. 9-11-4(h); see also Newsome v. Johnson, 305 Ga. App. 579 (2010).  Laches is an equitable doctrine that is not a proper claim or defense to this matter, as a court of equity, not law, is the correct forum to determine the validity of such an allegation.[1] See Boyd v. Robinson, 299 Ga. App. 795, 797 (2009) citing Vatacs Group, Inc. v. Homeside Lending, Inc., 281 Ga. 50, (2006)

[1] In Boyd v. Robinson, Court of Appeals dealt with a motion to dismiss on a similar service issue, and found: “It is well established that courts of equity "may interpose an equitable bar whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights. However, the equitable doctrine of laches does not apply to legal actions.”

The Georgia Court of Appeals has outlined the requirements for exercising diligence in perfecting service:

When a complaint is filed within the statute of limitation, but service is not made within five days or within the period of limitation, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service is made as quickly as possible Once the plaintiff becomes aware of a problem with service, however, his duty is elevated to an even higher duty of the greatest possible diligence to ensure proper and timely service.  The plaintiff must provide specific dates or details to show diligence. Whether the plaintiff met that burden was a question of fact for the trial court’s determination that will not be overturned absent an abuse of discretion. Scanlan v. Tate Supply Inc. A10A0432 (Ga.App, 2010) citing Akuoko v. Martin, 298 Ga.App. 364, 364-365.

Plaintiff's practitioners need to be mindful to keep a record of all of the diligent efforts pursued in obtaining service on the defendant.  Creating a timeline for the Court and illuminating all of the defense's obstructive actions are helpful in defeating service defenses in these cases.  Most of all, alert your client to the time-constraints involved in filing the lawsuit.  Until the Georgia legislature modifies these service requirements under the Georgia Civil Practice Act, these diligent efforts at perfecting service must continue.