Notice and Service Flashcards
Who is authorized to serve process
Process may be served by
1) the sheriff or deputy for the county where the action is brought or where the defendant is found;
2) by a certified process server; or
3) by an adult citizen who is appointed by the court
(differs from federal court)
Time for Service of Process
Service must be made within a reasonable time after filing the complaint or the action will be dismissed without prejudice, unless the plaintiff can show good cause not to dismiss
In-State Process Server (Timing)
An in-state process server must serve the summons and complaint within 5 days of receipt
If this requirement is not met, service may still be upheld if the plaintiff shows due diligence to effect service within a reasonable time. Due diligence is determined from the date when the plaintiff became aware that the process server failed to perfect service, not the date when the complaint was filed
the trial court has discretion to determine whether the plaintiff was diligent (rarely overturned on appeal)
Four Gold Standards of Service in GA
1) personal service
2) abode service
3) service on agent
4) mailing the complaint as part of a request for waiver
Personal Service in GA
personal service means directly handing the process to the party being served
Minor - if the defendant is a minor, the minor’s parent or guardian must be served as well
immunity - a defendant who is in GA to appear as a witness is immune from service
Personal Service Outside GA
personal service outside GA is permitted
1) on defendants who are residents of GA; and
2) in any action affecting specific realty or status (or other in rem or quasi in rem proceedings)
Long Arm Statute - under the statute, service may be made outside the state in any manner allowed by GA law, as long as it is effected but someone who is qualified to serve process in the state in which the defendant is found
Service Under Nonresident Motorist Act
The plaintiff must serves two copies of process on the secretary of state
notice of the service on the secretary of state is then given to the defendant by registered or certified mail
Theory - using GA’s roads impliedly consents to the appointment of the secretary of state as his agent for service of process for cases arising from the operation of the motor vehicle
Abode Service
A defendant may be served with process at the defendant’s normal abode by leaving the process with someone
1) of suitable age and discretion
2) who resides at the defendant’s abode
Service on an Agent
service may be made on a high level officer of the business or agent appointed to accept service (as when an agent is appointed as part of registering to do business in GA)
Waiver of Service
As in federal court, the plaintiff may mail the complaint with a request that the defendant waive formal service
the defendant has a duty to avoid cost of service and receives 60 days from the date the request was sent to respond to the complaint
Backup Methods of Service in GA
if the defendant cannot be served, with due diligence, using the gold standard methods, the following may be used
Mail on Business: If the authorized or registered agent cannot be served, the business may be served either by (1) a mailing that requires proof of service or (2) service on GA’s secretary of state, with the plaintiff mailing a copy to the party’s last known address of corporate official
Publication: publication is available by court order if:
1) the resident party is actively concealing themselves to avoid service;
2) the non-resident party cannot be found; or
3) the case is an in rem or quasi in rem proceeding
NOTE: for publication, each situation requires a court order on the plaintiff’s diligent efforts to serve the defendant
Serving a County, Municipality, or Town
Service is performed by serving the person in charge (mayor, chairman of board of commissioners, CEO of public body)
Georgia Tort Claims Act
an Ante Litem (notice of claim against a government entity) or a tort claim against the state must be made in writing within 12 months of the date the loss was or should have been discovered
NOTICE OF CLAIM– notice of the claim is made by certified mail or delivered personally to the risk management division of the department of administrative services – a copy must be delivered personally or mailed to the state government entity
CONTENTS OF NOTICE – the notice of the claim must state, to the extent the claimant knows or believes: (1) the name of the state agency that caused the loss; (2) the time and place of the transaction or occurrence giving rise to the loss; (3) the nature and amount of the loss; and (4) the alleged acts to omissions that caused the loss
The notice requirement is jurisdictional - case must be dismissed if not provided
Delay in Commencing the Action – A claimant must wait until the Department of Administrative Services denies the claim or 90 days have passed after the notice of claim was presented (whichever occurs first) before commencing the action
Georgia Tort Claims Act Pleadings
A copy of the notice, along with a copy of the receipt of delivery, must be attached to the pleadings
To avoid dismissal (without prejudice) for failure to attach the copies, the plaintiff must cure the defect within 30 days after the state raises the issue by motion
Mailing to Attorney General – A copy of the complaint, showing the date of filing, must be mailed to the attorney general at his office by certified or statutory overnight mail, return receipt requested.
A certificate stating this requirement has been satisfied must be attached to the complaint (may be corrected by amendment if no prejudice to the state is shown)
