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Service Of Process In Georgia: Items Every Trucking And Accident Injury Lawyer Should Know

Trial attorney John Houghton has litigated truck wrecks in Georgia and throughout the country. He is well versed in the federal motor carrier regulations, as well as the tactics routinely used by trucking companies use to avoid liability. Among those defense tactics are resorting to technicalities in the filing of lawsuits and serving of notice to preserve truck crash evidence. The Houghton Law Firm, LLC beats them at their own game by meticulous attention to detail in the legal paperwork.

Truck accident case? Call The Houghton Law Firm, LLC at 404-476-2541 for a free consultation. We also invite referrals from other law firms.

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, it must be followed. Often, the defense lawyer will be able to acknowledge service if their 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 them 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 Court of Appeals of Georgia has found that service was proper when the process server left papers outside of the door after he spoke with the wife of the defendant and 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 when the papers were left outside the door after the 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 five-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, the 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 Court of Appeals of Georgia has outlined the requirements for exercising diligence in perfecting service:

When a complaint is filed within the statute of limitations 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, their 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.

The 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.