United States District Court, S.D. Georgia, Brunswick Division
LISA GODBEY WOOD, UNITED STATES DISTRICT COURT.
the Court is Defendant J.C. Penney Corporation, Inc.'s
Motion to Dismiss. Dkt. No. 9. This Motion has been fully
briefed and is ripe for review. For the following reasons,
Defendant's Motion is DENIED.
case, Plaintiff alleges that on December 2, 2016, she slipped
and fell on vomit that was on the walkway aisle in
Defendant's store in Brunswick, Georgia. Dkt. No. 9 at
Ex. 1, ¶¶ 5-6. Plaintiff filed a personal injury
action against Defendant on November 16, 2018, in the
Superior Court of Glynn County. Id. at Ex. 1. On
November 27, 2018, Harley Weaver-the legal assistant of
Plaintiff s counsel-had yet to receive a copy of the summons
and complaint to serve Defendant. Dkt. No. 12-1 ¶ 6.
That same day, Ms. Weaver called the Clerk of Superior Court
of Glynn County (''the Clerk") to inquire about
the whereabouts of those documents. Id. Several days
later, she called the Clerk again to request the summons and
complaint. Id. Under O.C.G.A. § 9-3-33, the
two-year statute of limitations period for Plaintiff's
personal injury action ran on December 2, 2018. On December
13, 2018, Ms. Weaver received the service copy of the
complaint and summons. Dkt. No. 12-1 ¶ 7. At some point
on or after December 13, 2018, Ms. Weaver mailed those
documents via First Class Mail to the Forsyth County Sheriff
Department for service upon Defendant's registered
agent.Id. ¶ 8. Defendant's
registered agent was served on December 21, 2018. Dkt. No. 9
at Ex. 3. On January 4, 2019, Ms. Weaver received the Sheriff
Entry of Service and mailed the same to the Clerk.
Id. ¶ 9.
January 18, 2019, Defendant removed this case to federal
court. Dkt. No. 1. On February 12, 2019, Defendant filed its
Motion to Dismiss, dkt. no. 9, currently before the Court,
arguing that Plaintiff s claims are time-barred under the
statute of limitations because Plaintiff failed to timely
serve Defendant, and as a result, the statute of limitations
was not tolled by Plaintiff filing the complaint on November
Defendant does not specify that it is filing a motion
pursuant to Federal Rule of Civil Procedure 12(b) (6), the
Court will construe Defendant's motion as being filed
under that rule because Defendant argues that Plaintiff's
claims should be dismissed as they are barred by the statute
of limitations. Such statute of limitations defenses are
commonly raised under Rule 12(b)(6). See Tlemcani v.
Georgia Dep't of Cmty. Health, No.
1:17-CV-2547-TWT-JSA, 2017 WL 8293276, at *3 n.1 (N.D.Ga.
Sept. 28, 2017), report and recommendation adopted,
No. 1:17-CV-2547-TWT, 2018 WL 1427944 (N.D.Ga. Mar. 22,
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), a district court must accept as true the facts set
forth in the complaint and draw all reasonable inferences in
the plaintiff's favor. Randall v. Scott, 610
F.3d 701, 705 (11th Cir. 2010). Although a complaint need not
contain detailed factual allegations, it must contain
"enough facts to state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) . The Court accepts the allegations in the complaint
as true and draws all reasonable inferences in favor of the
plaintiff. Ray v. Spirit Airlines, Inc., 836 F.3d
1340, 1347 (11th Cir. 2016). However, the Court does not
accept as true threadbare recitations of the elements of the
claim and disregards legal conclusions unsupported by factual
allegations. Iqbal, 556 U.S. at 678-7 9. At a
minimum, a complaint should ''contain either direct
or inferential allegations respecting all the material
elements necessary to sustain a recovery under some viable
legal theory." Fin. Sec. Assurance, Inc. v.
Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007)
(per curiam) (quoting Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
argues that Plaintiff's claims should be dismissed
because they are barred by the statute of limitations.
Specifically, Defendant argues that Plaintiff's claims
are barred because Plaintiff failed to timely serve Defendant
before the statute of limitations ran and did not diligently
attempt to serve Defendant after that point. Plaintiff
responds that she did act diligently to serve Defendant in a
timely manner despite the fact that the statute of
limitations had run.
determining whether service of process was `timely' in
these situations, the Eleventh Circuit has held that
Georgia's service of process rule, O.C.G.A. §
9-11-4(c), rather than Federal Rule of Civil Procedure 4(m)
determines the propriety of service." Banner Grain
& Peanut Co., Inc. v. Penn Millers Ins. Co., No.
1:16-CV-00539-LMM, 2016 WL 9454415, at *2 (N.D.Ga. Aug. 4,
2016) (citing Cambridge Mut. Fire Ins. Co. v. City of
Claxton, 720 F.2d 1230, 1231-33, 1232 n.2 (11th Cir.
1983); Aucoin v. Connell, 209 Fed. App'x. 891,
893 (11th Cir. 2006)). O.C.G.A. § 9-11-4(c) states:
''When service is to be made within this state, the
person making such service shall make the service within five
days from the time of receiving the summons and complaint;
but failure to make service within the five-day period will
not invalidate later service." "Where `service is
made after [this] five-day statutory grace period provision,
the plaintiff bears the burden of showing that he exercised
due diligence in perfecting service.'"
Banner, 2016 WL 9454415, at *2 (quoting Scott v.
Taylor, 507 S.E.2d 798, 799 (Ga.Ct.App. 1998)).
Giles v. State Farm Mut. Ins. Co., 765 S.E.2d 413,
416 (Ga.Ct.App. 2014), the Georgia Court of Appeals clarified
that "the person making such service" within the
meaning of § 9-11-4 (c) referred to the person making
service of process, not the party filing the action. Thus,
the clock for the five-day grace period begins to run on the
day that the person making service receives the complaint and
summons, not the day that the plaintiff files the complaint.
Id. Based on this understanding, the court
summarized the rules for service of process and statutes of
limitations as follows:
If the filing of the petition is followed by timely service
perfected as required by law, although the statute of
limitation runs between the date of the filing of the
petition and the date of service, the service will relate
back to the time of filing so as to avoid the limitation.
Therefore, if service is made within the five-day grace
period allowed by OCGA § 9-11-4(c), it relates back to
the date the complaint was filed as a matter of law. And
[w]here a complaint is filed near the statute of limitation
and service is made after the statute expires and after the
five-day safe harbor provision contained within OCGA ...