United States District Court, M.D. Georgia, Columbus Division
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
originally filed this action against Defendants in the
Superior Court of Muscogee County and requested that they
waive service. Notice of Removal Ex. 1, Superior Court
Pleadings 21-22, ECF No. 1-1. Defendants declined and removed
the case to this Court on June 21, 2017. Notice of Removal,
ECF No. 1. Defendants immediately filed a motion to dismiss
Plaintiff's complaint, arguing, inter alia, that
Plaintiff had failed to perfect service. Defs.' Mot. to
Dismiss 4, ECF No. 2-1. The Court then ordered Plaintiff to
serve Defendants as required by law within 90 days of removal
and informed the Plaintiff that failure to do so would result
in dismissal of his complaint. Order Granting Mot. to Stay,
ECF No. 8. Over 90 days have elapsed since Plaintiff's
case was removed to this Court, and Plaintiff has not yet
filed proof that he served either Defendant. Plaintiff has,
however, filed a return of summons indicating that he served
Defendants' counsel of record and a motion to declare
service perfected on that ground or, in the alternative, to
order service by publication. For the reasons explained
below, the Court denies Plaintiff's motion (ECF No. 14)
and grants Defendants' motion to dismiss (ECF No. 2).
Federal Rules of Civil Procedure prescribe the proper methods
in federal court for perfecting service on a corporation.
They require a plaintiff to “serve process on a
corporation by delivering the summons and complaint to an
officer or authorized agent, or by complying with any means
allowed under state law.” Hunt v. Nationstar
Mortg., LLC, 684 F. App'x 938, 940 (11th Cir. 2017)
(per curiam) (citing Fed.R.Civ.P. 4(h)(1)). “When
service of process is challenged, [the plaintiff] must bear
the burden of establishing its validity.” Reeves v.
Wilbanks, 542 F. App'x 742, 746 (11th Cir. 2013)
(per curiam) (alteration in original) (quoting Aetna Bus.
Credit, Inc. v. Universal Decor & Interior Design,
Inc., 635 F.2d 434, 435 (5th Cir. 1981)). Plaintiff has
failed to establish that he effected valid service on either
Defendant under Georgia or federal law.
only evidence Plaintiff has submitted to the Court to show
that he validly served Defendants is a return of service
indicating that his process server personally served
Defendants' counsel of record. See Return of
Service, ECF No. 12. Under Georgia law, a plaintiff must
personally serve a corporation's “president or
other officer . . ., a managing agent thereof, or a
registered agent thereof, ” if the action is against
“a foreign corporation authorized to transact business
in this state.” O.C.G.A. § 9-11-4(e)(1)(A);
see also Cherokee Warehouses, Inc. v. Babb Lumber
Co., 535 S.E.2d 254, 255 (Ga.Ct.App. 2000) (holding
that, when available, service must be personally delivered to
an individual listed in § 9-11-4(e)(1)(A)). But
“[s]ervice on an attorney is not permitted where
personal service is required.” Estate of Thurman v.
Dodaro, 313 S.E.2d 722, 725 (Ga.Ct.App. 1984). It
follows that Plaintiff has not perfected valid service on
Defendants under Georgia law. Nor will service upon a
party's attorney suffice under federal law. Ransom v.
Brennan, 437 F.2d 513, 519 (5th Cir. 1971)
(“[S]ervice of process is not effectual on an attorney
solely by reason of his capacity as
attorney.”). Further, “[a] defendant's actual
notice is not sufficient to cure defectively executed
service.” Albra v. Advan, Inc., 490 F.3d 826,
829 (11th Cir. 2007) (per curiam). The Court thus finds on
the current record that Plaintiff has failed to effect valid
service on either defendant.
Court also declines the Plaintiff's request for
permission to serve Defendants by publication. “Because
service by publication raises due process concerns and is a
‘notoriously unreliable means of actually informing
interested parties about pending suits, ' it must be
accomplished as provided by the statute and
‘substantial compliance' is insufficient.”
Vasile v. Addo, 800 S.E.2d 1, 4 (Ga.Ct.App.
2017) (first quoting Baxley v. Baldwin, 631 S.E.2d
506, 509 (Ga.Ct.App. 2006); and then quoting Hutcheson v.
Elizabeth Brennan Antiques & Interiors,
Inc., 730 S.E.2d 514, 517 (Ga.Ct.App. 2012)). Under
Georgia law, an order for service by publication may only be
granted if it appears “by affidavit, to the
satisfaction of the judge, ” that “the person on
whom service is to be made . . . cannot, after due diligence,
be found within the state, or conceals himself or herself to
avoid the service of the summons.” O.C.G.A. §
9-11-4(f)(1)(A). “[T]he constitutional prerequisite
for allowing such service . . . is a showing that reasonable
diligence has been exercised in attempting to ascertain their
whereabouts.” Abba Gana v. Abba Gana, 304
S.E.2d 909, 912 (Ga. 1983). The party seeking service by
publication must “exercise due diligence in pursuing
every available channel of information.” Floyd v.
Gore, 555 S.E.2d 170, 174 (Ga.Ct.App. 2001). The Court
finds that Plaintiff has failed to carry this burden.
Plaintiff's motion contains various arguments as
to why he has been unable to serve Defendants within this
state, Plaintiff has not presented the Court with any
evidence, such as an affidavit, showing that he
exercised reasonable diligence to personally serve
Defendants. And all reasonable inferences indicate that
Plaintiff would have been able to personally serve
Defendants' had he tried. Because the Plaintiff has
failed to show that he exercised reasonable diligence in
locating and personally serving the Defendants or their
registered agents, his request for service by publication is
motion (ECF No. 14) is denied in its entirety, and
Defendants' motion to dismiss (ECF No. 2) is granted.
Plaintiff's complaint is dismissed without prejudice.
 In Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
 Georgia law also allows service by
publication if the person on whom service is to be made
resides outside the state or has departed from the state if
“the present address of the party is unknown.”
O.C.G.A. § 9-11-4(f)(1)(A). The simple fact that
Plaintiff originally mailed a copy of the complaint to both