Can a Personal Injury Lawsuit be Dismissed Based on a Delay Caused by the Court Clerk?

There are many deadlines a person needs to understand and comply with in a personal injury lawsuit. Perhaps the most critical deadline is the statute of limitations. In Georgia, an accident victim has two years from the date of the injury to sue the negligent defendants.

To give a simple illustration, let us say you are injured in a car accident that occurred on May 1, 2017. If you want to sue the other driver for damages, you need to make sure your lawsuit is filed no later than May 1, 2019. After that date, no Georgia judge can hear your case, regardless of its merits.

Herrin v. JC Penny Corporation, Inc.

Keep in mind, however, that filing a lawsuit is just the first step in the process. You also need to serve the complaint–together with the court’s summons to appear and answer the lawsuit–on the defendant. Now, as the plaintiff, you do not handle this yourself. Instead, you (or more commonly, your personal injury lawyer) will send the complaint and summons to the local sheriff, who is the person authorized by law to fulfill service.

Normally, the plaintiff is expected to serve the defendant within the two-year statute of limitations period. There is, however, some wiggle room. Georgia law actually states that service must be made “within five days from the time of receiving the summons and complaint.” But service can even be made outside the five-day window if the plaintiff can show he or she “exercised due diligence” in trying to make service on time.

Here is a practical illustration of this concept, taken from a decision by a federal judge in a pending Georgia personal injury lawsuit, Herrin v. JC Penny Corporation, Inc.: The plaintiff in this lawsuit was injured in a slip-and-fall accident at a department store. She subsequently filed a personal injury lawsuit against the defendant, the store’s owner, in Glyn County Superior Court.

The accident took place on December 2, 2016. The plaintiff filed her lawsuit on November 16, 2018. For some reason, the Superior Court did not return a copy of the summons and complaint to the plaintiff’s personal injury lawyer until December 13, which was after the two-year statute of limitations period expired. At some point thereafter, the plaintiff’s attorney mailed the documents to the Forsyth County Sheriff for service on the defendant. The actual service was not recorded until January 4, 2019.

The defendant decided to exercise its right to remove (transfer) the plaintiff’s lawsuit from state to federal court. The defense then moved to dismiss the complaint, citing the plaintiff’s alleged lack of “timely service.” In other words, the defendant said that since it did not receive the complaint until after the statute of limitations expired, the plaintiff’s lawsuit was barred.

The judge disagreed. Although the plaintiff did not perfect service until 19 days after the limitations period expired, the judge noted the plaintiff’s legal counsel “spent 11 of those 19 days waiting on the Clerk” in Glyn County to return the summons and complaint so they could be served. The judge said she would not punish the plaintiff for the state court’s delay given that her attorney “exercised diligence” in trying to move things along.

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