As an initial phase in any case, plaintiffs must notify defendants that they are being sued in court. This is done by serving them with a copy of the complaint, through what is known as service of process. If service of process is not done properly, a defendant may not even know that litigation is ongoing and may miss opportunities to defend himself, which would prevent a fair litigation process from occurring. To keep this from happening, Georgia rules allow a court to dismiss a lawsuit when service of process has not been correctly followed. In a recent case before the Georgia Court of Appeals, the Court evaluated whether to uphold a dismissal in a case of questionable service.
In this case, R.R. was a passenger in a vehicle that collided with a Muscogee County School District (MCSD) school bus. R.R. sued the driver of the bus, R.S., alleging that he was negligent in driving the bus. He also sued the school district for vicarious liability based on R.S.’ actions. R.R. alleged that he suffered significant injuries as a result of the accident. R.R. filed the lawsuit on November 3, 2014. On March 10, 2015, a court-appointed process server filed an affidavit of service, stating that MCSD had been properly served with the complaint and a summons because they were left with the assistant for the school district’s human resources department. No affidavit for service of R.S. was filed. Neither R.S. nor MCSD filed an answer to the complaint, and R.R. moved for a default judgment.
On January 28, 2016, both R.S. and MCSD entered appearances and moved to dismiss R.R.’s complaint based on R.R.’s failure to properly serve them. R.R. did not respond to the motion, and the court granted it, dismissing the complaint. R.R. then appealed. In support of his arguments, R.R. filed an affidavit from the court-appointed process server that explained the process for serving MCSD and attested to the fact that he was repeatedly told that it would be proper to serve the assistant to the HR department. R.R. also filed a supplemental brief, noting that in a companion case, MCSD had admitted that service to the assistant to the HR department was proper.
The Court of Appeals noted that the defendant bore the burden to show that the complaint was improperly served, and it requires a showing by clear and convincing evidence that proper service did not occur. Turning first to R.S., the Court held that there was absolutely no evidence that R.S. was properly served. Throughout the process, R.S. continued to maintain that he had never received a copy of the complaint, and R.R. did not dispute this.
Turning next to MCSD, Georgia law requires that when serving an entity like MCSD, the complaint and summons must be given to either the chief executive officer or a clerk thereof. MCSD argued that service to the assistant of the HR department was insufficient because the assistant clearly was not a chief executive officer nor a clerk. MCSD made no effort, however, to show that the assistant to the HR department was not a “clerk” within the meaning of the statute. Since MCSD did not show that R.R.’s service violated Georgia law by failing to serve a clerk, the Court of Appeals held that it had not met its burden to show insufficient service of process. Accordingly, the Court of Appeals determined that the trial court had improperly granted MCSD’s motion to dismiss R.R.’s complaint and reversed for further proceedings.
When bringing a civil lawsuit, it is of the utmost importance that you make sure to properly serve the defendant that you are suing. While this can seem like a simple step, failing to do so correctly can lead to the dismissal of your case. Stephen M. Ozcomert has over 20 years of experience handling car accident cases, including representing individuals who have been injured by the negligent driving and bad decisions of others in Atlanta and throughout Georgia, and he can assist you in making sure you meet all service of process requirements. Call us today at (404) 370-1000 to schedule your free initial consultation, or you can reach us through our website.
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