Atlanta Injury Attorney Blog
Do you have that feeling in your gut that your lawyer is lazy? Are they very slow to respond, if they do at all? Everyone goes through busy periods, but if the lazy behavior is frequent, it’s not going to get better and it may destroy your case. As the appeals decision below explains, once the two year statute of limitations on personal injury cases approaches, Courts will scrutinize the diligence that people use to get the defendant served.
A personal injury lawsuit has strict procedural rules regarding how and when the defendant is served the paperwork by the sheriff or process server. Failure to follow the court’s procedural rule will often result in the dismissal of a case.
An attorney can help a victim determine whether a legitimate claim exists and draft and submit the appropriate documents to the court. After submitting the documents, the plaintiff must arrange for “service” on the defendant. This is a critical point in a Georgia personal injury lawsuit, and a plaintiff’s failure to effectuate proper service can lead to the dismissal of an otherwise meritorious claim.
For instance, recently, a Georgia appeals court issued an opinion in a plaintiff’s appeal following the dismissal of her complaint. In 2019 the plaintiff filed a personal injury lawsuit against the defendant for a 2017 car accident. On the same day, the plaintiff filed several discovery requests and a request to produce documents. On the day that the statute of limitations was set to expire, the sheriff attempted to serve the defendant by leaving a copy of the complaint at the defendant’s adult son’s home. In response, the defendant filed several motions, arguing amongst other issues, that the case should be dismissed based on insufficient service of process. Following the motions, the sheriff once again tried to achieve personal service on the defendant. However, the trial court granted the defendant’s motion to dismiss based on the plaintiff’s failure to perfect service. The plaintiff argued that she reasonably believed she rectified the service issue.
Under Georgia law, when a plaintiff files a complaint near the end of the statute of limitations and service occurs after the statute’s expiration and five-day safe harbor provision, the court will look to the plaintiff’s diligence in perfecting service. In these cases, the plaintiff bears the burden of establishing that they exercised due diligence. However, the trial court maintains the discretion to determine whether the plaintiff met their burden. Further, defendants have the burden to show, by clear and convincing evidence, that the proof of service was improper.
In this case, the plaintiff attempted to serve the defendant on the last day of the statute of limitations. In response, the defendant offered proof that her son did not reside at the address and, therefore, the service was improper. The plaintiff argued that she attempted to rectify the issue within days of learning of the improper service. However, the court reasoned that the plaintiff was aware of improper service months earlier and did not take appropriate actions to determine the status until the statute of limitations expired. Therefore, the court affirmed the defendant’s motion to dismiss based on improper service.
Have You Suffered Injuries in a Georgia Car Accident?
If you have been involved in a Georgia car accident involving a negligent driver, Christopher Simon, Attorney at Law, can help you understand your rights and remedies. Our attorneys have a rich tradition of successfully advocating and representing Georgia injury victims in their claims for damages. We handle all types of Georgia accident cases, including motor vehicle accidents, premises liability claims, product liability claims, medical malpractice, and wrongful death. Our experienced attorneys understand the importance of abiding by procedural and substantive rules to ensure our clients effectively pursue the compensation they need and deserve. Contact our law firm at 404-259-7635 to schedule a free initial consultation at our office.