United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, UNITED STATES DISTRICT COURT JUDGE
Everett Dykes Grassing Company, Inc. (Dykes Grassing) and
Dykes Construction Inc. (Dykes Construction), move to dismiss
Plaintiff Valentine's complaint, asserting that his
claims are barred by the statute of limitations. Doc. 4.
Valentine, who is represented by counsel, failed to respond.
his truck, and his dog were injured in a single-vehicle
accident on March 22, 2012. Doc. 1 ¶¶ 8, 10, 14. On
December 8, 2016, he filed this action asserting that the
Defendants' road construction was defective, incomplete,
not properly marked, and not accompanied by appropriate
safety barriers, causing his injuries. Id.
¶¶ 10, 11, 14. This action is clearly barred by the
statute of limitations unless tolled. See O.C.G.A.
§§ 9-3-31 (“Actions for injuries to
personalty shall be brought within four years after the right
of action accrues.”); 9-3-33 (“[A]ctions for
injuries to the person shall be brought within two years
after the right of action accrues . . . .”).
complaint, Valentine asserts that the complaint “is a
refile under O.C.G.A. 9-11-41.” Doc. 1 ¶ 4. As
explained by the Defendants, Valentine initially filed an
action asserting these claims on March 13, 2014, and
“dismissed the initial action without prejudice on June
15, 2016 after failing to file a response to Defendants'
motion for summary judgment within the time allowed by
law.” Doc. 4 at 1. The Defendants, somewhat generously,
construe this action as a renewal action under O.C.G.A.
§ 9-2-61, which can toll the statute of limitations.
Id. The Defendants argue that the statute of
limitations is not tolled under the renewal statute because:
(1) Valentine never served Dykes Grassing in the initial
action; and (2) Valentine failed to exercise diligence in
serving the Defendants in this action.
clear that O.C.G.A. § 9-2-61 does not permit a plaintiff
to renew a claim against a party never served in the initial
action. See, e.g., Osborne v. Hughes, 200
Ga.App. 558, 559, 409 S.E.2d 58, 59 (1991). The question is
whether Valentine's service of Dykes Grassing was
insufficient. The Sheriff's Entry of Service forms from
the initial action, attached to the Defendants' motion,
show that service was intended to be made separately to
“Everett Dykes Grassing 10 Inc” and “Dykes
Construction Inc.” Docs. 4 at 3-4; 4-2; 4-3. Dykes
Grassing concedes that the address shown on these forms was
its address. Doc. 4 at 10-12. However, both forms, dated
March 18, 2014, show service on a Kailey Taylor on behalf of
only Dykes Construction. Id. Neither form mentions
service on Dykes Grassing. Id. Dykes Grassing raised
the defense of insufficient service of process in the initial
action, and Valentine apparently made no other attempt to
serve Dykes Grassing before dismissing that action.
Id. at 7. These facts are insufficient to show
service on Dykes Grassing in the initial action. Accordingly,
Valentine's claim against Dykes Grassing is not saved by
the renewal statute and is barred by the statute of
Valentine was not diligent in serving the Defendants in this
action. And diligence in service was necessary to toll the
statute of limitations under Georgia law. The Defendants
correctly note that the six-month renewal period expired
about a week after Valentine's refiling. The cases cited
by the Defendants make clear that, under these circumstances,
Valentine has the burden to show at least reasonable
diligence in serving the Defendants. See, e.g.,
Teel v. Wal-Mart Stores E. LP, 2010 WL 5462511, at
*1 (M.D. Ga.); Webster v. W. Express, Inc., 2007 WL
2782457, at *4 (M.D. Ga.). The facts recited by the
Defendants make it equally clear that Valentine has not done
so. It appears that Valentine knew where to serve the
Defendants, but made no attempt to do so until February 22,
2017-76 days after filing the complaint and 69 days after the
expiration of the six-month renewal period. This delay,
unexplained, is sufficient to doom Valentine's claim.
Cf. Fusco v. Tomlin, 285 Ga.App. 819, 648 S.E.2d 137
(2007); Davis v. Bushnell, 245 Ga.App. 221, 537
S.E.2d 477 (2000).
March 29, 2017, over two weeks after the motion to dismiss
was filed, Valentine filed a proof of service stating that a
Lee Perry “served the summons on Stephen Starling, who
is designated by law to accept service of process on behalf
of Dykes Construction on 2-22-17.” Doc. 7 at 1. This is
likely sufficient to show service as to Dykes
Grassing; but still, the Court is astonished at
Valentine's sloppiness. Valentine has been on notice
since April 14, 2014, when Dykes Grassing asserted
insufficient service in the initial action, of the importance
of serving Dykes Grassing (in distinction from Dykes
Construction). Doc. 4-4 at 1, 6. Incredibly, after making
this error in the initial case and receiving the
Defendants' motion to dismiss questioning service in this
case (Doc. 4 at 10-11), Valentine's proof of service does
not mention Dykes Grassing. More incredibly, Valentine has
not tried to explain the delay in service.
lack of diligence in serving the Defendants is patent. The
Defendants' motion (Doc. 4) is GRANTED. Valentine's
claims are barred by the statute of limitations and are
 Valentine's allegation that
“this is a refile under O.C.G.A. 9-11-41” is
insufficient. Valentine fails to allege anything about the
initial action, including the identity of the claims in that
action, whether the defendants here were served in that
action, and whether Valentine has paid the costs in that
 Valentine has not responded. So, of
course, he has not objected to the Court's consideration
of these documents. Cf. Teel v. Wal-Mart Stores E.
LP, No. 4:10-CV-114 CDL, 2010 WL 5462511, at *2 n.4
(M.D. Ga.) (considering evidence outside of pleadings in
addressing similar motion to dismiss).
 A corporations search on the Georgia
Secretary of State website reveals that Dykes Construction
was administratively dissolved September 2, 2012 (less than
sixth months after Valentine's accident, but over a year