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Cummings v. Douberly

United States District Court, S.D. Georgia

July 21, 2015



LISA GODBEY WOOD, Chief District Judge.

Plaintiff Katrina Cummings seeks to renew her dismissed complaint, which alleges violations of her constitutional rights under 42 U.S.C. § 1983, against Defendant James Richard Douberly. See Dkt. no. 1 ("Renewed Complaint"). This Court dismissed Plaintiff's original complaint without prejudice in a prior action because Plaintiff failed to show proof that she had effectuated timely service on Defendant. She now comes before the Court with proof of untimely service on Defendant, and Defendant has moved to dismiss the Renewed Complaint as time-barred. Dkt. no. 5. This Court converted the Motion to Dismiss into a Motion for Summary Judgment. Dkt. no. 12. Because the prior complaint was dismissed by a judicial determination that dismissal was authorized, the prior action was void and thus is not renewable under Georgia's renewal statute. Therefore, Defendant's Motion for Summary Judgment (Dkt. no. 5) is GRANTED.


Plaintiff alleges that on April 27, 2011, she returned from the store to find several police officers around her home. Dkt. no. 1, 9191 5-9. A man had fled police and entered her home, and the police wanted to search inside for him. Id . Plaintiff says that when she asked the police why they wanted her consent to search her home, the "officers became upset." Id . ¶ 10. Plaintiff ultimately consented to the search on the condition that the police first allow her to remove her children from the home. Id . ¶ 11. Plaintiff says that after police searched her home and arrested the fugitive, Defendant Douberly had her arrested, without probable cause and for malicious purposes, for obstructing or hindering law enforcement officers. Id . ¶ 12. Plaintiff claims the arrest violated her constitutional rights, "including but not limited to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution." Id . ¶ 13.

Plaintiff, who is represented by counsel, filed her first complaint against Defendant on April 22, 2013, just a few days before Georgia's two-year statute of limitations for personal injury claims would expire. See Complaint (Dkt. no. 1), Cummings v. Douberly et al., 2:13-CV-59 (S.D. Ga. Apr. 22, 2013)[1]; Ga. Code Ann. § 9-3-33. On October 11, 2013, Defendant moved to dismiss the complaint for failure to make timely service. See Def.'s Not. to Dismiss (Dkt. no. 7), Cummings v. Douberly et al., 2:13-CV-59 (S.D. Ga. Oct. 11, 2013). This Court granted Defendant's motion to dismiss the first complaint on April 7, 2014, because Plaintiff failed to show proof that she had effectuated service on Defendant even after being given extra time to do so. See Order Granting Def.'s Mot. to Dismiss (Dkt. no. 14), Cummings v. Douberly et al., 2:13-CV-59 (S.D. Ga. Apr. 7, 2014) ("Cummings I Order")

Plaintiff filed her Renewed Complaint against Defendant in the present action on October 6, 2014, one day within Georgia's six-month window for recommencing discontinued or dismissed cases, but more than three years after the right of action accrued. See Dkt. no. 1; Ga. Code Ann. § 9-2-61(a); § 9-3-33. Plaintiff has provided a copy of the Summons on Defendant, which indicates service on December 5, 2013-some two years, seven months, and eight days after the alleged constitutional violations were committed and 106 days after Plaintiff was afforded a 30-day extension by the Magistrate Judge to effectuate service on Defendant. See Dkt. no. 8-1. Thus, the copy of the Summons shows that Plaintiff served Defendant in the prior action after Defendant filed his motion to dismiss for untimely service in October 2013, but before the Court granted that motion in April 2014. For some unexplained reason, Plaintiff never presented this Court the summons in the prior action, even when faced with a motion to dismiss due to lack of service.

Defendant has filed a Motion to Dismiss the Renewed Complaint, arguing that this suit is barred by the statute of limitations and cannot be saved by Georgia's tolling provision for renewal actions. Dkt. no. 5. Because Plaintiff, as the nonmovant, filed an extraneous document in her opposition to Defendant's Motion to Dismiss purporting to show that Defendant was eventually served, the Court converted Defendant's Motion to Dismiss into a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 12(d). See Dkt. no. 12. The Court allowed the parties ten days to supplement the record. Id . Defendant promptly responded with additional argument. Dkt. no. 13. Plaintiff filed a late response, but did not otherwise attempt to introduce new evidence for the Court's consideration. Dkt. no. 14. Defendant's Motion to Dismiss is thus ripe for adjudication as a Motion for Summary Judgment.


When considering a motion for summary judgment the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The dispute in this case turns solely on the interpretation of Georgia's renewal statute and its resultant case law.


Under Georgia's renewal statute,

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later

Ga. Code Ann. § 9-2-61(a). "The privilege of dismissal and renewal does not apply to cases decided on their merits or to void cases." Tate v. Coastal Utils., Inc., 545 S.E.2d 124, 126 (Ga.Ct.App. 2001). An action is "void" under one of two circumstances: (1) if service is never perfected, and (2) if there has been a judicial determination that dismissal is authorized and such an order has been entered. See id. "However, unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void." Id . (quoting Hobbs v. Arthur, 444 S.E.2d 322, 323 (Ga. 1994)).

The central issue in this case is whether Plaintiff's prior action against Defendant was void. Plaintiff argues that even though her prior action was dismissed for failure to perfect service, Defendant was nevertheless served. According to Plaintiff, "[a]y delay in service in the prior action is essentially irrelevant in ...

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