United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL, CHIEF JUDGE.
the Court are Defendant Sean Downes' motions to dismiss
Plaintiff James Boyleston's amended complaint. (Docs. 5,
For the following reasons, Defendant's motion to dismiss
is CONVERTED into a motion for summary
alleges that he was attacked by Defendant on April 12, 2015.
(Doc. 2.) On April 4, 2017, Plaintiff brought a battery suit
against Defendant in this Court based on diversity of
citizenship. (Id.) On April 10, 2017,
Plaintiff's counsel mailed a notice of lawsuit and
request for waiver of service pursuant to Federal Rules of
Civil Procedure 4 (d) to Defendant at 843 0 Del Prado Drive,
Delray Beach, FL 33446.(Doc. 12, ¶ 3.) On May 26, 2017, a
Florida process server left the summons and complaint with
the office of general counsel at Defendant's place of
employment. (Doc. 12.) However, the person served was not
authorized to accept service on Defendant's behalf. (Doc.
moved to dismiss Plaintiff's complaint for insufficient
service of process on Jun£ 13, 2017. (Doc. 5.) The next
day, Plaintiff's counsel asked Defendant's counsel to
withdraw the motion to dismiss. (Doc. 12.) Defendant's
counsel did not agree and Defendant was personally served on
June 28, 2017. (Doc. 11.)
parties do not dispute and the Court is satisfied that there
is a diversity of citizenship under 28 U.S.C. § 1332(a).
Defendant argues that Plaintiff's cause of action is
barred by the relevant two-year statute of limitations
because, under Georgia law, a civil action is not commenced
until service has been perfected. Plaintiff disagrees and
argues that, even assuming arguendo that the
foregoing is true, the present action was timely commenced
because Plaintiff filed the present action prior to the
expiration of the statute of limitations and subsequently
served Defendant within the ninety-day deadline provided by
Federal Rule of Civil Procedure 4 (m) . In turn, Defendant
argues that - because service of process was accomplished
after the applicable statute of limitations had run -
Plaintiff must demonstrate that he acted in a reasonable and
diligent manner in effecting service, which Plaintiff has
allegedly failed to do.
Erie doctrine requires that state substantive law be
applied in diversity jurisdiction cases unless there is a
federal law directly on point. Hanna v. Plumer, 380
U.S. 460, 471 (1965) . Courts have long held that statutes of
limitations are substantive laws that must be applied in
diversity cases. Ragan v. Merchants Transfer &
Warehouse Co., 337 U.S. 530, 532-33 (1949);
Cambridge Mut. Fire Ins. Co. v. City of Claxton, 720
F.2d 1230, 1233 (11th Cir. 1983). In Cambridge, the
Eleventh Circuit found that O.C.G.A. § 9-11-4 is an
integral part of the statute of limitations and therefore
controlling in a diversity-case. Cambridge, 720 F.2d
Plaintiff complains that Cambridge was decided
before the adoption of Federal Rules of Civil Procedure 4
(m), ! which conflicts with O.C.G.A. §
9J-11-4 (c) and therefore Cambridge is inapposite.
In Walker v. Armco Steel Corp., the Supreme Court
held that "Rule 3 governs the date from which various
timing requirements of the Federal Rules begin to run, but
does not affect state statutes of limitations." 446 U.S.
740, 751 (1980) . This reason is equally applicable to Rule 4
(m) . Rule 4 (m) merely sets the outer time limit for service
of a complaint. Nothing in Rule 4(m) suggests that it was
intended to extend the life of a state cause of action.
Courts addressing this issue have come to the same
conclusion. See, e.g., Aucoin v. Connell, 209
Fed.Appx. 891, 892 (11th Cir. 2006); Castleberry v.
Winn-Dixie Stores, Inc., 2017 WL 4052159, at *2 (M.D.
Ga. Sept. 13, 2017); Botts v. Proflow, Inc., 2010 WL
11508352, at *2 (N.D.Ga. Feb. 23, 2010) . Therefore, since
the two laws do not conflict, O.C.G.A § 9-11-4 (c)
controls whether Plaintiff's cause of action is
the Court must determine whether Defendant's motion can
be resolved at present. Although Defendant's motion is
titled as a motion to dismiss for insufficient service of
process, it is better framed as a motion to dismiss for
failure to state a claim. When deciding a motion to dismiss
under Rule 12(b)(6), the Court's inquiry is limited to
the face of the complaint. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007) . Accordingly, a
motion to dismiss based on the statute of limitations is only
appropriate if it is apparent from the face of the complaint
that the cause of action is time-barred. Brotherhood of
Locomotive Eng'rs & Trainmen Generall
Comm. of Adjustment CSX Transp. Northern Lines v. CSX
Transp., Inc., 522 F.3d 1190, 1194 (11th Cir. 2008). If
a motion to dismiss raises issues outside the face of the
complaint, the Court can resolve the motion by converting it
to summary judgment. See Fed.R.Civ.P. 12(d).
O.C.G.A. § 9-11-4 (c), if the statute of limitations on
a claim runs out between filing and service of process, the
date the claim begins depends on when service is perfected.
See Webb v. Murphy, 236 S.E.2d 840, 841
(Ga.Ct.App. 1977). If the plaintiff serves process
within five days or exercises reasonable diligence, the suit
is deemed to commence on the filing date. Giles v. State
Farm Mut. Ins. Co., 765 S.E.2d 413, 417 (Ga.Ct.App.
2014). Additionally, if a plaintiff has still not served the
defendant after receiving the defendant's motion to
dismiss, the plaintiff must exercise the "greatest
possible diligence." Busby v. Webb, 545 S.E.2d
132, 134 (Ga.Ct.App. 2001), overruled on other grounds by
Giles, 765 S.E.2d at 418.
determine a plaintiff's diligence, Georgia courts focus
on the plaintiff's efforts rather than the time it took
to perfect service. Georgia Farm Bureau Mut. Ins. Co. v.
Kilgore, 462 S.E.2d 713, 715 (Ga. 1995). ' In this
case, it is undisputed that Plaintiff did not serve Defendant
within the five-day safe harbor provided by O.C.G.A. §
9-11-4(c). Therefore, whether this action was timely
commenced will depend on Plaintiff's diligence in
effecting service of process on Defendant. Plaintiff's
complaint includes no facts about his efforts to serve
Defendant. Furthermore, since the focus of the diligence
inquiry is on plaintiff's efforts, the power to take
judicial notice of the docket is to no avail. And while
Plaintiff has provided some evidence of his efforts to serve
Defendant, the Court does not j want to foreclose the
possibility that the parties might have further evidence
demonstrating Plaintiff's due diligence (or lack
thereof). Accordingly, the Court converts Defendant's
motion to dismiss into a motion for summary judgment and
gives both parties twenty-one (21) days to bring forward! all
evidence regarding Plaintiff's diligence.
upon due consideration, IT IS HEREBY ORDERED
that Defendant's motion to dismiss (docs. 5, 14) is
CONVERTED to a motion for summary judgment.
Conversion of Defendant's motion requires observing the
procedural requirements of summary judgment. Jones v.
Automobile Ins. Co. of Hartford, Conn., 917 F.2d 1528,
1532 (11th Cir. 1990). Thus, the Clerk is
DIRECTED to issue a
Griffith notice of summary judgment to each party
so each may file any and all additional materials that are
pertinent to Defendant's ...