Renewal action. Cobb Superior Court. Before Judge Howe, Senior Judge.
David E. Oles, for appellant.
Carlock, Copeland & Stair, John L. Bunyan, Shannon M. Sprinkle, Lewis Brisbois Bisgaard & Smith, Brantley C. Rowlen, Hall Booth Smith, Richard N. Sheinis, Anthony E. Stewart, Kawania B. James, Dennis, Corry, Porter & Smith, Assunta S. Fiorini, for appellees.
Judge. Boggs, J., concurs. Branch, J., concurs fully in Division 1 and
concurs specially in Division 2.
Barnes, Presiding Judge.
After his first lawsuit was dismissed by the United States District Court for the Northern District of Georgia and the dismissal was affirmed by the United States Court of Appeals for the Eleventh Circuit, Dean Mark Gottschalk filed a purported renewal action in the Superior Court of Cobb County. The superior court dismissed all of Gottschalk's claims on the ground that they were time-barred, resulting in this appeal. We conclude that Gottschalk's claims were untimely, whether viewed under Georgia's renewal statute (OCGA § 9-2-61 (a)) or under the tolling provision of the federal supplemental jurisdiction statute (28 U.S.C. § 1367 (d)). As we explain below, under Georgia's renewal statute, Gottschalk was required to file his renewal action within six months of the Eleventh Circuit's decision affirming the district court's dismissal of his first lawsuit, which he failed to do. See OCGA § 9-2-61 (a). Furthermore, the tolling provision of the federal supplemental jurisdiction statute does not apply if state law [329 Ga.App. 731] provides for a longer tolling period, and the federal statute provides only a 30-day grace period for refiling suit. See 28 U.S.C. § 1367 (d). Because Georgia's renewal statute provides for a longer tolling period than the federal supplemental jurisdiction statute, the federal statute is inapplicable in this case. Accordingly, the trial
court committed no error in concluding that Gottschalk's claims were time-barred under state and federal law, and we therefore affirm.
The record reflects that Gottschalk and his ex-wife had two children together before their divorce in March 2005. In April 2006, Gottschalk's ex-wife filed a petition for modification of child visitation rights in the Superior Court of Cobb County, seeking to have Gottschalk's visits with their children supervised (the " Modification Proceeding" ). In December 2008, the superior court entered a final order in the Modification Proceeding that, among other things, granted the requested supervision. This Court subsequently affirmed that order on appeal. See Gottschalk v. Gottschalk, 311 Ga.App. 304 (715 S.E.2d 715) (2011).
In April 2009, Gottschalk filed a pro se complaint in the United States District Court for the Northern District of Georgia against 38 individuals and entities for their alleged misconduct related to the Modification Proceeding (the " Federal Lawsuit" ). Gottschalk's complaint was brought pursuant to 42 U.S.C. § § 1983 and 1985 and alleged numerous additional federal constitutional and statutory claims, as well as a state law claim for intentional infliction of emotional distress. He later amended his complaint to allege state law claims for the unauthorized disclosure of confidential medical information, slander, libel, and invasion of privacy.
On March 30, 2010, the district court dismissed Gottschalk's federal constitutional and statutory claims on several grounds. The district court declined to exercise supplemental jurisdiction over Gottschalk's pendant state law claims and dismissed them without prejudice. Gottschalk appealed the dismissal of his federal constitutional claims to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affirmed the district court in an unpublished opinion on June 16, 2011. The mandate from the Eleventh Circuit was issued on July 19, 2011.
[329 Ga.App. 732] On December 20, 2011, Gottschalk, through counsel, filed the present action in the Superior Court of Cobb County against several of the same defendants who had been named in the Federal Lawsuit (the " State Lawsuit" ). Gottschalk's complaint asserted claims for intentional infliction of emotional distress, slander, libel, unauthorized disclosure of confidential medical information, and invasion of privacy for alleged misconduct arising out of the Modification Proceeding. The complaint further alleged that the misconduct had occurred from April 2006 until April 2009. Additionally, the complaint alleged that the State Lawsuit was a proper renewal action timely brought pursuant to OCGA § 9-2-61 (a) because it was filed within six months from the date the mandate issued from the Eleventh Circuit in the Federal Lawsuit.
The defendants answered and raised several affirmative defenses, including that all of Gottschalk's claims were barred by the applicable statutes of limitation. The defendants subsequently moved to dismiss Gottschalk's complaint and/or for summary judgment on the same ground. The defendants argued that under Georgia's renewal statute, OCGA § 9-2-61 (a), Gottschalk's deadline for filing his State Lawsuit was six months from June 16, 2011, the date that the Eleventh Circuit affirmed the district court's order dismissing his claims in the Federal Lawsuit, rather than from the later date when the Eleventh Circuit's mandate was issued. Because Gottschalk did not file his State Lawsuit until
December 20, 2011, which was outside the six-month window for renewal calculated from June 16, 2011, the defendants contended that the lawsuit was untimely under OCGA § 9-2-61 (a) and that Gottschalk thus could not take advantage of the statute's tolling provision. The defendants also contended that the State Lawsuit was untimely under the separate tolling provision of the federal supplemental jurisdiction statute, 28 U.S.C. § 1367 (d), because it was filed more than 30 days after the dismissal of the Federal Lawsuit and thus fell outside the grace period afforded by that statute.
The superior court entered an order granting the motions to dismiss and for summary judgment that had been filed by the various defendants on the ground that all of Gottschalk's claims in the State Lawsuit were time-barred. The superior court concluded that the [329 Ga.App. 733] applicable statutes of limitation had run on Gottschalk's claims and that his State Lawsuit had not been refiled within the six-month window for renewal authorized by OCGA § 9-2-61 (a). In this regard, the superior court agreed with the defendants that the sixth-month renewal period began to run from the date when the Eleventh Circuit affirmed the district court's dismissal of the Federal Lawsuit, rather than from the later date when the mandate was issued. Consequently, the superior court concluded that Gottschalk's filing of the State Lawsuit on December 20, 2011 was untimely and dismissed all of his claims. In reaching this conclusion, the superior court did not address the tolling provision of the federal supplemental jurisdiction statute, 28 U.S.C. § 1367 (d). Gottschalk now appeals the superior court's dismissal order.
1. Gottschalk contends that the superior court erred in concluding that his complaint was not timely refiled in the State Lawsuit within the six-month window for renewal authorized by OCGA § 9-2-61 (a). According to Gottschalk, the trial court should have measured the six-month renewal period ...