2. Service Of Process And SOL COPY Flashcards
Who may serve process within Georgia?
- The county sheriff or deputy where the action is filed or the defendant is located;
2 . certified process server; or - a non-party at least 18 years old appointed to serve process.
What is the time of making service in Georgia?
Plaintiff must serve the defendant within 5 days after the complaint is filed, but failure to do so does not automatically dismiss the case.
Reasonable diligence must be shown if service is delayed.
How is process served on individuals in Georgia?
Process is served by:
- personal service;
- leaving a copy at the defendant’s abode with someone of suitable age and discretion; or
- delivering a copy to the defendant’s registered agent.
How are minors served in Georgia?
Serve the parent or guardian.
How are incompetents served in Georgia?
Serve the individual’s legal guardian or conservator.
How are corporations served in Georgia?
Deliver to the Registered Agent
-Serving the corporation’s registered agent.
If No Registered Agent Exists
-Service on the Secretary of State, who then forwards it to the company’s last known address.
Service on Officers or Managers
-If no agent is available, serve a corporate officer, managing agent, or general agent at the principal place of business.
How are government bodies served in Georgia?
Suing the State
-Serve the Attorney General and deliver copies to the head of the relevant agency.
Suing a County or Municipality
-Serve the chairperson of the county commissioners or the mayor/city manager of a municipality.
Service on Non-Residents (Georgia Long-Arm Statute - O.C.G.A. § 9-10-91)
Out-of-state defendants may be served under the long-arm statute if they have sufficient contacts with Georgia.
Methods include:
Personal service in another state.
Certified mail with return receipt requested.
Service through an agent in Georgia.
Waiver of Service
A defendant may waive formal service by signing an acknowledgment.
If waived, the defendant gets 60 days to answer the complaint instead of 30 days.
A plaintiff may request a waiver, but if the defendant refuses, they may be liable for service costs.
Motion to Dismiss for Insufficient Service of Process
A motion to dismiss for insufficient service of process challenges whether the plaintiff failed to serve the defendant at all or did not attempt to serve the defendant properly within the required timeframe.
Motion to Dismiss for Insufficient Service of Process
Key Arguments:
-The plaintiff never served the defendant.
-Service was attempted, but not completed (e.g., the process
server could not locate the defendant).
-Service was not made within a reasonable time after filing the complaint.
-The wrong individual or entity was served (e.g., serving an unauthorized employee of a business).
Motion to Dismiss for Insufficient Service of Process
Effect if Granted:
Dismissal without prejudice, meaning the plaintiff may refile and attempt proper service if the statute of limitations allows.
If the statute of limitations has expired, the case may be permanently barred.
Motion to Dismiss for Improper Service
A motion to dismiss for improper service argues that, although service was attempted, it was not performed correctly under Georgia law. This means the defendant received defective or legally insufficient service.
Motion to Dismiss for Improper Service
Key Arguments:
-Service was not made by an authorized person (e.g., an unauthorized private process server).
-Substituted service was defective (e.g., leaving the summons with a minor instead of an adult at the residence).
-Service on a corporation was defective (e.g., serving an employee who is not an officer, managing agent, or registered agent).
-Service by publication was improper (e.g., no due diligence was made to locate the defendant before publication).
-Failure to serve in accordance with the Georgia Long-Arm Statute (e.g., failure to use certified mail for an out-of-state defendant)
Motion to Dismiss for Improper Service
Effect if Granted:
-The court may dismiss the case without prejudice, allowing the plaintiff to attempt proper service again.
-If the plaintiff fails to correct service within the statute of limitations, the case may be permanently dismissed.
What is the rule for an Ante Litem Notice in Georgia?
The claimant must provide written notice within one year of discovering or should have discovered the loss to sue the state for a tort claim.
How are Ante Litem Notices served in Georgia?
The ante litem notice must be:
- Sent by certified mail, overnight delivery, or delivered personally to the Risk Management Division of the Department of Administrative Services(with a receipt retained).
- Personally delivered or mailed by first-class mail to the state government entity involved.
What happens when the required notice for Ante-Litem has been presented?
Once the required notice has been presented, no action may be brought until either:
1. the Department of Administrative Services has denied the claim; or
2. 90 days have passed.
What must be included in the ante litem notice in Georgia?
Ante litem notice MUST state:
- the name of the state entity involved;
- time, place, and nature of the incident;
- amount of loss claimed;
- acts or omissions causing the loss.
What is the general rule for a plaintiff filing a cause of action within the statutory period in Georgia?
The plaintiff must file within the statutory time period, starting when the cause of action accrues, or the claim will be barred.
What two causes of action have a one-year statutory period in Georgia?
- Defamation or other injuries to reputation
- Medical malpractice for foreign objects left in the patient’s body
What four causes of action have a two-year statutory period in Georgia?
- Breach of restrictive covenant
- Personal injury
- Medical malpractice: generally within two years of the injury or death
- Products liability: within 10 years of the first sale causing the injury
What five causes of action have a four-year statutory period in Georgia?
- Actions on open accounts, breach of unsigned contracts, or implied promises
- Other contract actions, express or implied
- Contracts for sale of goods
- Trespass or damage to real property
- Injuries to or recovery of personal property
What cause of action has a five-year statutory period in Georgia?
A civil action for recovery of damages suffered as a result of childhood sexual abuse must be commenced within five years of the date the plaintiff attains the age of majority.
What cause of action has a six-year statutory period in Georgia?
Actions on simple written contracts not governed by UCC Article 2.
What cause of action has a seven-year statutory period in Georgia?
Possession of real property under written evidence of title.
What cause of action has an eight-year statutory period in Georgia?
Deficiency in survey, plat, planning, design, specifications, supervision, or observation of construction(including personal or property injury and wrongful death arising from the deficiency).
What cause of action has a ten-year statutory period in Georgia?
Actions against fiduciaries.
What cause of action has a twenty-year statutory period in Georgia?
Adverse possession of real property.
What is the general rule for a plaintiff to toll the statute of limitations in Georgia?
To toll the statute of limitations in Georgia, The plaintiff must:
- file the lawsuit before the time limit expires; and
- make a good-faith effort to serve process on the defendant within the statutory period.
What happens if the complaint is filed before the expiration of the statutory limitations period but service occurs after?
If the complaint is filed within the statutory period but service occurs later, the statute of limitations is tolled, and service relates back to the filing date if done within the allowed five days.
What if there is a problem perfecting service within that period?
If service is delayed, the plaintiff must show they were not at fault and acted promptly to perfect service.
How is the statute of limitations tolled during minority in Georgia?
The statute does not begin to run against an unemancipated minor until they reach the age of 18.
How is the statute of limitations tolled during incapacity in Georgia?
Persons who are legally incompetent can bring an action after their disability is removed, as prescribed for other persons.
How is the statute of limitations tolled for fraud by defendant in Georgia?
If the defendant is guilty of fraud by which the plaintiff has been deterred from bringing an action, the period of limitation runs only from the time of the plaintiff’s discovery of the fraud.
What is the Discovery Rule to toll the statute of limitations in Georgia?
The discovery rule delays the start of the time limit until the plaintiff knows or reasonably should have known about the harm, whichever occurs first.
What is the statutory period for a plaintiff who is a minor under age five in Georgia?
A minor under age five has two years from the date of their 5th birthday to bring a medical malpractice action if the cause of action arose before the minor turned five.
What is the statutory period for a plaintiff who is a minor under age five when the negligence occurred but was not discovered in Georgia?
If a minor was under age five when the negligence occurred but was not discovered, they may not sue after their 10th birthday.
What is the statutory period for a plaintiff who is a minor age five or older when the negligence occurred but was not discovered in Georgia?
If a minor was age five or older when the negligence occurred but was not discovered, they may not sue more than five years after the date of the negligence.
What do statutes of repose do?
Statutes of repose extinguish causes of action after the stated period, even those that have not yet accrued or been discovered.
This is particularly relevant in medical malpractice claims, which are extinguished five years from the date of the act.
