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Lipscomb v. Davis

The trial court did not abuse its discretion in finding that the plaintiff did not demonstrate the greatest possible diligence in attempting to serve the defendant.

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Ericka Lipscomb sued Kenneth Davis for personal injuries sustained in an automobile accident on August 15, 2012. The suit was filed on August 12, 2014 , three days before the two year statute of limitation expired. See OCGA § 9 3 33. Davis filed a special appearance answer on December 8, 2014, in which he asserted lack of service of process as a defense. He also filed a motion to dismiss or, in the alternative, motion for summary judgment on that ground . The court granted Davis’s motion, stating that Lipscomb has not demonstrated the greatest possible diligence in attempting to serve Davis. . Finding no abuse of discretion, we affirm.

The record shows that after Lipscomb filed her complaint against Davis on August 12, 2014, the sheriff attempted service at 2673 Evans Mill Drive on August 21, 2014. The sheriff was unable to serve Davis, who had moved without leaving any forwarding information. On or about October 13, 2014, Lipscomb filed an affidavit of non-service from a private process server, which recited that the process server had attempted to serve Davis on September 13, 2014 at 2669 Evans Mill Drive, but received no answer, and again at the same address on September 20, 2014 when a neighbor told the server that the apartment had been vacant for several months. The process server also stated in his affidavit that the address at which the sheriff had attempted to serve Davis did not exist. A final attempt to serve Davis was made on December 11—three days after Davis filed a special appearance answer—at an address belonging to Davis’s ex-girlfriend who claimed that Davis had moved.

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