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Stokes v. Hill

The plaintiff could not invoke the renewal statute to revive her third complaint after her husband's death at the hands of another inmate in the Floyd County Jail, since her first dismissal, which was voluntary, was granted outside O.C.G.A. § 9-2-61 subsection a's 2-year statute of limitation for wrongful death actions.

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Ruth Stokes, individually and as administrator of her husband’s estate, appeals the grant of summary judgment to defendants Tim Hill and Barry Kirby in her action for the wrongful death of her husband. Because Stokes had previously exercised her right to the one—and only one—renewal of the action outside the statute of limitation authorized by OCGA § 9-2-61 a, she could not invoke that statute to save the instant lawsuit. The instant lawsuit therefore is barred by the statute of limitation, and we must affirm. We must affirm notwithstanding that the second dismissal was by a United States District Court in the exercise of his discretion not to exercise supplementary jurisdiction over Stokes’s state claims after disposition of her federal claims—and notwithstanding the federal court’s stated expectation that the case would proceed in state court.

On February 26, 2008, while he was incarcerated at the Floyd County Jail, Stokes’s husband was killed by another inmate. Defendants Hill and Kirby were jail personnel at the time. On February 26, 2010, Stokes filed a complaint against Hill, Kirby and others for the wrongful death of her husband. Her motion to voluntarily dismiss the action was granted on March 26, 2010, after the two-year statute of limitation for wrongful death actions had run. See Miles v. Ashland Chemical Co., 261 Ga. 726, 727 410 SE2d 290 1991 two-year statute of limitation is applicable to wrongful death claims.

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