How and When to File an Action: Service of Process and SOL

Question 1

How do you commence a civil action in GA?

Answer 1

by filing a complaint with the court

Question 2

Who may serve?

Answer 2

a. Process must be served within Georgia by:
(1) The sheriff of the county where the action is brought or where the defendant is found, or such sheriff’s deputy.

(2) Any citizen of the United States specially appointed by the court for that purpose.
(3) Someone who is not a party and is at least 18 years of age and has been appointed as a permanent process server by the court in which the action is brought.

Question 3

Time of making service in GA

Answer 3

a. When service is to be made within Georgia, the person making such service must do it within 5 days from the time of receiving the summons and complaint.
(1) Failure to make service within the 5-day period will not invalidate a later service but statute of limitations issues may arise.

Question 4

Manner of service generally

Answer 4

a. Personal Service
(1) Leaving copies at defendant’s “abode” with someone of suitable age and discretion.
(2) Delivering a copy to defendant’s registered agent.

b. Sum Less than $200
(1) If the principal sum involved is less than $200 and if reasonable efforts have been made to obtain personal service by attempting to find some person residing at the most well-known place of abode of the defendant,
then service may be made by:
(a) Securely attaching the service copy of the complaint in a conspicuously marked and waterproof packet to
the upper part of the door of the abode; and
(b) On the same day, mailing by certified or registered mail or statutory overnight delivery an additional copy to the defendant at his or her last known address, if any.

Question 5

Service outside of GA

Answer 5

a. Manner of Service
(1) Persons subject to jurisdiction under the long-arm statute may be served with a summons outside the state in the same manner as service is made within Georgia by any person authorized to make service by the laws of the state where service is made.

b. Who is Authorized to Serve?
(1) Look to the laws of the state in which the person to be served is located.

c. Nonresident Motorist Act
(1) Plaintiff serves a copy of the summons and pleading on the Secretary of State, and sends a copy by registered or certified mail or statutory overnight delivery to the nonresident defendant, along with notice of the service.

Question 6

Personal Service on Particular Defendants

Answer 6

a. Service on Minors and Incompetents
(1) If against a minor: service must be on the minor, personally, and also on the minor’s father, mother, guardian, or duly appointed guardian ad litem.
(2) If against an incompetent: service must be on the person, and the person’s guardian.

b. Service on Corporations
(1) Service must be delivered to the president or other officer of the corporation, secretary, cashier, managing
agent, or other agent thereof.
(2) When for any reason service cannot be had in such manner: the Secretary of State will be treated as an agent of the corporation upon whom any process, notice, or demand may be served.

c. Service on Government Bodies
(1) Service must be on the chairman of the board of commissioners, president of the council of trustees, mayor or city manager of the city or to an agent authorized by appointment to receive service of process.

Question 7

Ante Litem notice- Service on the State

Answer 7

a. No person, firm, or corporation having a tort claim against the state may bring the action against the state without first giving the required notice.
b. The ante litem notice must be given in writing, within one year of the date the loss was discovered or should have been discovered.
c. A court will have no jurisdiction over such an action against the state unless and until the written notice has been timely presented to the state.

d. 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.

e. Ante Litem Notice must be mailed and served on both the Department of Administrative Services and the agency which committed the wrongful act.

Question 8

Waiver of Personal Service

Answer 8

a. To avoid costs, the plaintiff may notify certain defendants of the commencement of the action and request in writing that the defendant waive service of a summons.
(1) If the defendant agrees to waive service: they have 60 days to answer rather than 30.
(2) If the defendant chooses not to waive service: plaintiff must serve in another way, defendant must pay all costs and only has 30 days to respond.

Question 9

Service by Publication

Answer 9

a. When the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the
summons, and he or she is a necessary or proper party to the action, the judge or clerk may grant an order that service be made by the publication of summons.

b. When the court orders service by publication, the clerk must cause publication to be made: in the paper in which sheriff’s advertisements are printed, 4 times within the
ensuring 60 days, each time at least 7 days apart.

Question 10

When does an action in tort/contract accrue?

Answer 10

a. Generally, a cause of action in tort accrues: when the injury is inflicted.
b. Actions on contract accrue: when the offer is accepted and the contract is formed.

Question 11

Statutory Period of 1 year

Answer 11

• defamation or other injuries to reputation

- medical malpractice for foreign objects left in the patient’s body

Question 12

Statutory Period of 2 years

Answer 12

• breach of restrictive covenant
• *personal injury
• medical malpractice generally (with a 5 year statute of repose)
  
  • an action for med mal, other than the one resulting from a foreign object left in a patient’s body, must be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred

Question 13

Statutory Period of 4 years

Answer 13

• *all actions upon open account, or for the breach of any k not under the hand of the party sought to be charged, or upon any implied promise or undertaking
• *all other action upon k, express or implied, not otherwise provided for
• *k for the sale of goods
• trespass upon or damage to realty
• injuries to personal property, and actions for recovery or personalty

Question 14

Statutory Period of 5 years

Answer 14

• a civil action for recovery of damages suffered as a result of childhood sexual abuse must be commenced within 5 years of the date the P attains the age of majority

Question 15

Statutory Period of 6 years

Answer 15

-*actions on simple written k (not under UCC 2)

Question 16

Statutory Period of 7 years

Answer 16

-*Possession of real property under written evidence of title

Question 17

Statutory Period of 8 years

Answer 17

deficiency in survey, plat, planning, design, specifications, supervision, or observation of construction (including personal or property injury and wrongful death arising from the deficiency); for injury occurring in the 7th or 8th year, action may be brought within 2 years of injury
-statute of repose: no action be brought more than 10 years after substantial completion

Question 18

Statutory Period of 10 years

Answer 18

• *actions against fiduciaries

- *products liability (from the date of the first sale for use or consumption causing the injury)

Question 19

Statutory Period of 20 years

Answer 19

-*adverse possession of real property

Question 20

SOL and Med Mal Cases

Answer 20

a. Foreign object left in the body: One-year S/L.
b. Otherwise: 2-year S/L from the date of the injury or death that results from the negligence or wrongful act.
c. There is a five-year statute of repose which will extinguish the cause of action even if the action has not yet accrued or been discovered.

d. Further complications arise if the plaintiff is a minor.
(1) A minor under age five: has two years from the date of his 5th birthday within which to bring a medical malpractice action if the cause of action arose before the minor turned five. (so, by 7)
(2) If a minor was under age five when the negligence occurred: the minor may not sue after his 10th birthday.
(3) If a minor was age five or older when the negligence occurred: the minor may not sue more than five years after the date of the negligence.

Question 21

Tolling the Statute

Answer 21

a. During Minority
(1) The statute of limitations does not begin to run against an unemancipated minor until she reaches the age of 18.

b. Discovery Rule
(1) The discovery rule, which applies only in certain cases, meaning that the time does not begin to run until the plaintiff has actual knowledge of the harm or until a person of reasonable diligence should have had
knowledge, whichever is sooner.
(2) Generally, the discovery rule is applicable only in cases of bodily injury that develop over an extended period of time, not in property damage cases.

c. Fraud by Defendant
(1) If the defendant is guilty of a 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.

Question 22

How can you beat the SOL?

Answer 22

a. If a case is filed near the expiration of the statute of
limitations and the plaintiff manages to get the summons and complaint served before the expiration: a statute of
limitations defense will not work.

b. If a case if filed shortly before the expiration of the statute of limitations but the summons and complaint are served
after:
(1) If the summons and complaint are served within the 5- day period: there is no statute of limitations defense.
(2) If the summons and complaint are served after the 5- day period: the statute of limitations defense will work
unless the plaintiff can show that he was not at fault.