Due Diligence Cannot be Supported by a Non-specific Affidavit
Montague v. Godfrey, Case No. A07A2392 (02/08/08)
In this case the Court of Appeals dismissed a personal injury suit against one defendant for insufficiency of service of process pursuant to O.C.G.A.§9-11-12(b)(5). The Court held the plaintiff failed to show he acted with due diligence in attempting to serve process subsequent to the passage of the statute of limitations.
Plaintiff, using the services of the sheriff, had been unable to serve this defendant. The sheriff informed plaintiff that the defendant was not at the address provided by plaintiff. In support of his claim that he had engaged in due diligence, plaintiff relied solely on the affidavit of an investigator who stated he had been asked to determine the defendant’s address and that “on several occasions” he visited the address on the police report but was told the defendant did not reside there. The investigator also stated he attempted to locate the defendant at the last known place of employment; conducted a search of court records, utility records, vehicle registration, drivers license, public records and postal records in Georgia; and he checked for defendant’s name on several data bases “over the last 45 days.” The investigator stated that none of those efforts were successful.
The Court concluded the plaintiff had not met his burden of showing due diligence in attempting to locate the defendant. Specifically, the Court stated that, “[a]n affidavit submitted in an effort to show diligence must provide specific dates and details, not simply generalized, summary statements.” (emphasis added). Without the specific dates, or a chronology of the plaintiff’s efforts to effect service, the Court held that the trial court is placed in the position of being unable to determine due diligence.
This case shows the importance of keeping meticulous notes regarding all attempts to locate and serve a defendant. The court is not going to accept a generalized statement that we attempted to locate and serve a defendant.