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Insufficient Service Of Process: More Than A Technical Defense

Volume 19, No. 109 January 2007

Matthew A. Nanninga
mnanninga@deflaw.com

            The commencement of a lawsuit comes as a surprise to many insureds.  For others, it is nearly an everyday occurrence.  Whether an insured is a rookie or a seasoned veteran in their experience accepting process, the plaintiff’s task of serving process correctly remains constant.  The filing of the complaint tolls the statute of limitations from running, but the lawsuit cannot proceed until service of process has properly been made on the defendant. 

            Georgia courts have held that personal jurisdiction is “the very bedrock of due process.”  McRae v. White, 269 Ga. App. 455, 604 S.E.2d 291 (2004).  Personal jurisdiction is obtained through service of process, which is required in every lawsuit.  Without proper service, no valid lawsuit arises.  It is only after a plaintiff obtains proper service upon the defendant that the court obtains jurisdiction over the defendant to impose an enforceable judgment of liability and damages.  If the plaintiff fails to obtain proper service upon the defendant, the lawsuit must be dismissed due to the court’s lack of  jurisdiction.  Additionally, if the applicable statute of limitations has run and the plaintiff fails to obtain proper service in a timely manner, he may be prohibited from correcting this error and barred from recovery based upon this defense. 

            The general rules pertaining to proper service of process in Georgia require that the plaintiff serve both the summons and complaint upon the defendant personally if he is an individual, or upon an officer or managing agent (usually the registered agent designated in its filings with the Secretary of State) if the defendant is a business entity.  There are alternative methods for service of process; however, personal service upon the defendant or its corporate registered agent is the most common and accepted method, and the plaintiff’s failure to obtain service in this manner may provide the defendant with the strongest defense pertaining to insufficient service of process and personal jurisdiction.  It is important to note that a defendant waives the defense of insufficient service of process if it is not raised in the first responsive pleading or filing submitted by the defendant.

            Under Georgia law, if the defense is raised, the plaintiff may correct insufficient service of process as a matter of right at any time prior to the expiration of the statute of limitations.  However, once the limitations period expires, the plaintiff’s case may be subject to dismissal if the defendant preserves the defense in his first responsive pleading.  When service is made outside the limitation period, the plaintiff has the burden of showing that “due diligence” was exercised in serving the defendant.

            On the other hand, once a plaintiff has been made aware of a “problem” with service of process, the plaintiff is under the highest burden of due diligence to serve the defendant from that point forward or risk dismissal of the case. Moody v. Gilliam, 2006 Ga. App. LEXIS 1270, 2006 Fulton County D. Rep. 3208.  Other Georgia courts state that once the statute of limitations has expired and service of process is at issue, the plaintiff must act under the highest burden of due diligence to ensure that the defendant is served “as quickly as possible.”  Georgia courts require the plaintiff to show that he used “the greatest possible due diligence” in ensuring the defendant was timely served with process once he has been made aware of a problem with service. Saxton v. Davis, 262 Ga. App. 72, 584 S.E.2d 683 (2003); Tenet Healthcare v. Gilbert, 277 Ga. App. 895, 627 S.E. 2d 821, 829 (2006). 

            Some plaintiffs may attempt to have defendants “waive” or “acknowledge” service of process.  The rules applicable to service of process in cases filed in both Georgia and Federal Courts impose a duty upon defendants to waive service under certain specific circumstances.  However, it should be noted that the only “sanction” for failing to waive service is payment of costs in obtaining service (typically under $100.00) and a reasonable attorney’s fee for same.  The duty only arises where the plaintiff has provided the defendant notice of the suit in the specific manner set forth in the rule.  Therefore, when an insured is asked to waive service, he should confirm that all procedural prerequisites have been met by the plaintiff and consult an attorney before waiving service, particularly where the limitations period may have run.  The Georgia Court of Appeals has upheld as a matter of law that once the statute of limitations had expired, it is not “diligent” for a plaintiff to send a waiver of service of process form and wait a month before attempting actual service of process on a defendant.

            When insurers are notified that suit has been filed, and where no waiver of service has occurred, insurers should immediately investigate the circumstances surrounding the service, especially if the insured is a corporate business entity.  Service of process must be made on an authorized agent of the corporation in order to constitute valid personal service on a principal.  Service on an administrative assistant, receptionist, secretary, part-time hourly worker, or other employee who is not a registered or authorized agent for receipt of process, may not satisfy the personal service requirement, regardless of whether the defendant received actual notice of the suit.  Further, it is necessary that an employee who receives service have “managerial or supervisory” responsibilities in the corporation and that the employee’s position affords reasonable assurance the he/she would inform the corporation that process has been served.

            Answers to the following checklist will assist counsel in evaluating the viability of the service of process defense:

            1) Were both the summons and complaint included with the process?

            2) Did the summons identify the correct court?

            3) Who was the process served on, what is their job title, and what are their duties?

            4) What was the date on the entry of service?

            5) Where was process served?

            6) Who served process (what were they wearing and what did they say)?

            It is also important to have the insured provide copies of everything received to its insurer and counsel immediately to allow for an investigation and analysis of the facts surrounding service of process.  Despite it’s magnitude, the service of process element of a case can easily be taken for granted.  For a variety of reasons, plaintiffs have a tendency to wait until the eve of the statute of limitations to file the lawsuit.  Consequently, if there is a problem with service of process and the defendant alerts the plaintiff of same, the plaintiff may find himself arguing an uphill battle that he used the “greatest possible due diligence” in order to obtain service.  In certain circumstances, even where liability is indicated, a defendant may be able to avoid personal jurisdiction of the court altogether due to improper service of process.