Meeting is at 2:30pm on 1/31/10!
Sandy Springs Branch
395 Mount Vernon Hwy NE
Atlanta, GA 30328
404-303-6130
!! Don’t be out of the Loop!! At this meeting we will be voting for new officers,you will also have the opportunity to pay your annual dues/contribute to the Legislative fund and you don’t want to miss out on the important Legislative Info we will be discussing!!!
Meeting is at 2:30pm on 1/31/10!
Hope to see you there!
Adrienne Lewis
GAPPS ADMINISTRATOR
The Georgia Court of Appeals further refined the standards to establish due diligence when perfecting service outside the statute of limitations. In a case in which the complaint was served 19 days after filing, and just 13 days outside the statute of limitations, the Court held the plaintiff did not establish due diligence, and affirmed the trial court’s dismissal of the complaint. Akuoko v. Martin, Case No. AO9A0311; 09 FCDR (07/10/09). The case arose out of a vehicle accident that occurred March 6, 2006. Complaint was filed February 29, 2008 and served by the sheriff March 19, 2008. Defendant moved for dismissal. Plaintiff submitted an affidavit reflecting plaintiff’s due diligence. It consisted of submitting the papers to the sheriff for service at a correct address and the plaintiff and plaintiff’s attorney contacting the sheriff’s department “repeatedly” to inquire on the status of service. On at least three occasions they were told the deputy had been unable to find the defendant at home, but attempts would continue.The Court affirmed the trial court’s conclusion that the affidavit did not establish due diligence “because [the plaintiff] failed to specify when she first became aware of the sheriff’s initial unsuccessful attempt to serve [the defendant], or when or how many times [the plaintiff] contacted the sheriff’s department thereafter.” The Court further stated, “As the burden rests on [a plaintiff] to ensure diligent service, [the plaintiff] must provide specific dates or details to show diligence and cannot rely on conclusory statements.” The case is most interesting in the manner in which the Court responds to plaintiff’s citation of Lee v. Kim, 275 Ga. App. at 554-555. There, the plaintiff provided the sheriff with the papers for service just one day before the statute expired and the sheriff did not serve the papers until 11 days after the running of the statute. In Lee, the plaintiff was unaware the sheriff was having any problem serving the papers and simply allowed the sheriff to make service without question. The trial court found the plaintiff did not engage in due diligence. However, the Court of Appeals reversed, stating the plaintiff was justified in waiting for the sheriff to perfect service. The difference between the two cases, according to the Court of Appeals, is that in Lee, the plaintiff did not know there was any problem with service, and in the present case, the plaintiff, only because she checked with the sheriff’s department, knew the papers had not been served.It seems to this writer that the Court of Appeals is clearly off base in differentiating the two cases in this manner. Clearly, the plaintiff in the instant case acted more diligently than in Lee because she at least kept checking on the status of service. In Lee the plaintiff did nothing. The Court seems to penalize the plaintiff in this case for actually checking on status.Although a poorly decided case, we must live with it. It is important that in circumstances where the papers are not served within 5 days after the statute expires, we document every attempt, every conversation with neighbors (including names, dates, etc.), and every act we take in furtherance of perfecting service. It seems this Court of Appeals has redefined due diligence to mean extraordinary diligence.
“Attached is the legislation that will be placed in the hopper tomorrow. It still has a few minor errors that will be taken care of in committee; i.e., lines 57-58 will be modified as discussed at yesterday’s annual meeting, lines 113-115 will be changed to completely exclude deputy sheriffs, and the date on line 166 will be changed to January 1, 2010.”
Paul
bill-1.doc
The annual meeting is scheduled for Sunday, February 22, 2009 at 2:30 p.m. at the Sandy Springs Library, 395 Mount Vernon Highway, Atlanta, GA 30328.
The agenda will include elections for officers/directors. Members must have paid their 2009 dues to be eligible to vote.
A very important business item on the agenda will be our 2009 efforts to enact legislation providing for permanent appointments to serve state-wide. There will be a discussion on the state of negotiations with the various interest groups, the wording of the legislation and its effects, and the likely outcome in this year’s legislative session.
If you have not yet renewed your membership, please do so immediately. Additionally, please be generous and make a donation to our legislative fund. Lobbying is expensive. However, our lobbyists this year have thus far proved to be most effective and with financial help from all members, this should be an extremely good legislative year.
Paul K. Tamaroff, President
The Georgia Department of Labor, Office of State Administrative Hearings, has issued its decision in Martinelli Investigations Inc v. Department of Labor, Docket No. OSAH-DOL-UITL-0910040-67-Kennedy.
Martinelli Decision
The decision is of momentous importance in dealing with the issue of when one is an employee or independent contractor. In this case the Department was convinced that, contrary to the earlier decision of one of the department’s agents, a registered agent who had performed services for Martinelli Investigations and who had filed for unemployment benefits was not an employee under Georgia law, but an independent contractor. We owe a great deal of thanks to Robin for fighting this matter in the face of substantial legal costs. The full decision follows. We apologize for the quality of the print.
Due Diligence Cannot be Supported by a Non-specific Affidavit
Montague v. Godfrey, Case No. A07A2392 (02/08/08)
In this case the Court of Appeals dismissed a personal injury suit against one defendant for insufficiency of service of process pursuant to O.C.G.A.§9-11-12(b)(5). The Court held the plaintiff failed to show he acted with due diligence in attempting to serve process subsequent to the passage of the statute of limitations.
Plaintiff, using the services of the sheriff, had been unable to serve this defendant. The sheriff informed plaintiff that the defendant was not at the address provided by plaintiff. In support of his claim that he had engaged in due diligence, plaintiff relied solely on the affidavit of an investigator who stated he had been asked to determine the defendant’s address and that “on several occasions” he visited the address on the police report but was told the defendant did not reside there. The investigator also stated he attempted to locate the defendant at the last known place of employment; conducted a search of court records, utility records, vehicle registration, drivers license, public records and postal records in Georgia; and he checked for defendant’s name on several data bases “over the last 45 days.” The investigator stated that none of those efforts were successful.
The Court concluded the plaintiff had not met his burden of showing due diligence in attempting to locate the defendant. Specifically, the Court stated that, “[a]n affidavit submitted in an effort to show diligence must provide specific dates and details, not simply generalized, summary statements.” (emphasis added). Without the specific dates, or a chronology of the plaintiff’s efforts to effect service, the Court held that the trial court is placed in the position of being unable to determine due diligence.
This case shows the importance of keeping meticulous notes regarding all attempts to locate and serve a defendant. The court is not going to accept a generalized statement that we attempted to locate and serve a defendant.
All members are invited to attend our annual meeting on February 24, 2008.
Location: MLQ Attorney Service
2000 Riveredge Parkway
Suite 885
Atlanta, GA 30328
Time: 2:00 p.m.
We will elect officers for the coming year and discuss issues affecting service of process in Georgia.
Please RSVP with our administrator, Deb Duchon, at deborah.duchon@gmail.com
Hope to see you there!