Court Further Refines Due Diligence Standard
The Georgia Court of Appeals further refined the standards to establish due diligence when perfecting service outside the statute of limitations. In a case in which the complaint was served 19 days after filing, and just 13 days outside the statute of limitations, the Court held the plaintiff did not establish due diligence, and affirmed the trial court’s dismissal of the complaint. Akuoko v. Martin, Case No. AO9A0311; 09 FCDR (07/10/09).
The case arose out of a vehicle accident that occurred March 6, 2006. Complaint was filed February 29, 2008 and served by the sheriff March 19, 2008. Defendant moved for dismissal. Plaintiff submitted an affidavit reflecting plaintiff’s due diligence. It consisted of submitting the papers to the sheriff for service at a correct address and the plaintiff and plaintiff’s attorney contacting the sheriff’s department “repeatedly” to inquire on the status of service. On at least three occasions they were told the deputy had been unable to find the defendant at home, but attempts would continue.
The Court affirmed the trial court’s conclusion that the affidavit did not establish due diligence “because [the plaintiff] failed to specify when she first became aware of the sheriff’s initial unsuccessful attempt to serve [the defendant], or when or how many times [the plaintiff] contacted the sheriff’s department thereafter.” The Court further stated, “As the burden rests on [a plaintiff] to ensure diligent service, [the plaintiff] must provide specific dates or details to show diligence and cannot rely on conclusory statements.” The case is most interesting in the manner in which the Court responds to plaintiff’s citation of Lee v. Kim, 275 Ga. App. at 554-555. There, the plaintiff provided the sheriff with the papers for service just one day before the statute expired and the sheriff did not serve the papers until 11 days after the running of the statute. In Lee, the plaintiff was unaware the sheriff was having any problem serving the papers and simply allowed the sheriff to make service without question. The trial court found the plaintiff did not engage in due diligence. However, the Court of Appeals reversed, stating the plaintiff was justified in waiting for the sheriff to perfect service. The difference between the two cases, according to the Court of Appeals, is that in Lee, the plaintiff did not know there was any problem with service, and in the present case, the plaintiff, only because she checked with the sheriff’s department, knew the papers had not been served.
It seems to this writer that the Court of Appeals is clearly off base in differentiating the two cases in this manner. Clearly, the plaintiff in the instant case acted more diligently than in Lee because she at least kept checking on the status of service. In Lee the plaintiff did nothing. The Court seems to penalize the plaintiff in this case for actually checking on status.
Although a poorly decided case, we must live with it. It is important that in circumstances where the papers are not served within 5 days after the statute expires, we document every attempt, every conversation with neighbors (including names, dates, etc.), and every act we take in furtherance of perfecting service. It seems this Court of Appeals has redefined due diligence to mean extraordinary diligence.