If A Defendant Is Not Served With A Complaint Until After The Expiration Of The Statute Of Limitations, Plaintiff’s Claim Can Be Barred
If A Defendant Is Not Served With A Complaint Until After The Expiration Of The Statute Of Limitations, Plaintiff’s Claim Can Be Barred Unless They Demonstrate They Exercised Due Diligence In Perfecting Service Of Process On The Defendant.
Plaintiffs are notorious for waiting until the very end of the applicable statute of limitations period to file their suit. This means that the defendant is often not properly served with plaintiff’s complaint until after the expiration of the statute of limitations. However, plaintiff’s suit is not automatically barred by the statute of limitations simply because the defendant was served after its expiration. Instead, the statute of limitations is tolled and plaintiff’s suit automatically relates back to the time of the filing of the complaint if the defendant is served within five days as prescribed under O.C.G.A. §9-11-4(c). In other words, even though the defendant was not served until after the expiration of the statute of limitations, the suit is still valid so long as the defendant is properly served within five days from the filing of the complaint.
The plaintiff is gambling if he waits until near the end of the statute of limitations to file his complaint. If service of the complaint is not perfected on the defendant within five days, the plaintiff can be guilty of laches. The effect of laches is that plaintiff’s suit is barred because the service of the complaint does not relate back to the time of its filing for the purposes of tolling the statute of limitations.
A plaintiff can still avoid being guilty of laches, but to do so, he has to pass a few legal hurdles. To avoid being guilty of laches, the plaintiff must establish that he exercised due diligence, i.e. acted in a reasonable and diligent manner, in attempting to ensure that proper service was effected on the defendant as quickly as possible. It is also within the sound discretion of the trial court to determine whether the plaintiff acted in a diligent manner. If plaintiff establishes that he acted in a diligent manner in perfecting service, then the plaintiff is not guilty of laches. As a result, service of the complaint relates back to the time of its filing and therefore the complaint is not barred by the expiration of the statute of limitations.
In Walker v. Culpepper, A13A0210, Ga. App. (April 23, 2013), the Georgia Court of Appeals recently reminded plaintiffs that they have the burden of establishing their due diligence. The Court held that mere conclusory allegations that plaintiff acted in a reasonable and diligent manner in attempting to perfect service on a defendant is not proper evidence of their due diligence. Instead, the plaintiff must present the trial court withspecific detailed evidence if they wish to establish their attempts at perfecting service on the defendant were reasonable and diligent. Unless they present this evidence, then it is not error for a trial court hold the plaintiff guilty of laches and bar his suit.
In Walker, the Georgia Court of Appeals affirmed a trial court’s grant of summary judgment to the defendant based upon the trial court’s finding that the plaintiff (Walker) was guilty of laches. The trial court held that Walker was guilty of laches because he did not serve the defendant (Culpepper) until ten months after the statute of limitations expired. On appeal, Walker contended that the trial abused its discretion because there was evidence that he exercised due diligence in accomplishing service. However, the Court of Appeals held that Walker had not provided any actual evidence of his alleged due diligence. Instead, it held that Walker had merely provided conclusory statements. These conclusory statements were not enough for the Court of Appeals to find an abuse of discretion by the trial court.
The accident that was the basis of the suit occurred on April 7, 2009. Accordingly, the applicable statute of limitations expired prior to April 8, 2011. However, Walker waited until March 30, 2011 to file his complaint. Walker then unsuccessfully attempted to serve Culpepper with the Complaint on April 2, 2011, and again on May 2 and 4, 2011. Walker brought motions for service by publication in May 2011, September, 2011, and December, 2011. All applications were denied on December 27, 2011 even though his motions contained identical affidavits of diligent search stating his unsuccessful attempts to serve Culpepper and that a search of two internet websites failed to provide a known address for Culpepper. The trial court’s denial held that Walker failed to demonstrate that he exercised due diligence in attempting to perfect service on Culpepper.
Walker was finally successful in serving Culpepper in February of 2012. However, Culpepper’s March, 2012 answer raised the defenses of expiration of the statute of limitations, insufficiency of service of process, and laches. Culpepper subsequently filed a motion for summary judgment on these same grounds, which the trial court granted. On appeal, Walker contended that the trial court erred in granting summary judgment to Culpepper because the evidence demonstrated s that he diligently attempted to serve Culpepper, but that service was delayed because Culpepper deliberately evaded service. However, the Court of Appeals found that Walker had not presented any actual evidence to support his contentions of due diligence.
The problem with Walker’s affidavits were that they lacked specific details. Although Walker’s affidavits of diligent search demonstrate that he attempted to serve Culpepper prior to the expiration of the statute of limitations at what he believed to be her last known address, he did not provide an explanation as to how he determined it was Culpepper’s last known address. Furthermore, although Walker averred that he made substantial efforts to determine Culpepper’s correct address, he did not explain what specific efforts were undertaken.
Compounding Walker’s problem was that it was not until a month after his initial attempt to serve Culpepper, and almost a month after the expiration of the statute of limitations, that Walker attempted to serve Culpepper at her true residence. The Court also found that Walker had other unsupported claims regarding his alleged diligence. For example, although he claimed that Culpepper’s evasive actions prevented him from effecting service in May 2011, and that he tried to locate her through internet websites, but he did not provide details or dates to show continued diligence after May 2011. The Court held that because Walker did not provide specific dates or details to demonstrate his diligence, his affidavits amounted to mere conclusory statements, not evidence. These conclusory statements were not enough to establish that he acted in a reasonable and diligent manner in perfecting service of process on Culpepper. Accordingly, Walker was guilty of laches and his suit was barred by the expiration of the statute of limitations.
To be clear, Walker v. Culpepper does not establish as a matter of law that a plaintiff is guilty of laches anytime he serves a complaint after the expiration of the statute of limitations. However, it does serve notice to plaintiffs that they must exercise due diligence when perfecting service of process on a defendant after the expiration of the applicable statute of limitations. It also reminds plaintiffs that they must provide specific detailed evidence of their alleged diligence. If not, plaintiffs’ complaints can be barred by the expiration of the statute of limitations and Walker v. Culpepper can be a useful tool for the savvy defendant.