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Crawford v. Kingston

Plaintiff had not previously exercised her right to renew her action because an involuntary dismissal in federal court and a federal complaint that was never served on the defendant it did not amount to renewals.

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On appeal from the trial court’s dismissal of her renewed personal injury action against Scott Kingston, Christine Crawford argues that because an intervening dismissal in federal court was involuntary and could not operate as an adjudication on the merits under OCGA § 9-11-41 a 3, and because the federal complaint was never served on Kingston, she had the right to renew her action under OCGA § 9-2-61. We agree and reverse.

The record shows that Crawford filed her first complaint concerning an August 2006 motor vehicle accident in Cherokee County State Court. Crawford voluntarily dismissed this complaint in September 2009, after the running of the applicable statute of limitation. See OCGA § 9-3-33 actions for personal injury “shall be brought within two years after the right of action accrues”. In December 2009, and based on her belief that Kingston was a Florida resident, Crawford filed a complaint arising from the same facts in federal court for the Northern District of Georgia. Crawford could not locate or serve Kingston in Florida, however, and Kingston’s counsel made a special appearance in order to contest service and jurisdiction. After a discovery dispute, Kingston was ordered to amend his responses, at which point Crawford learned that Kingston had moved to Georgia. In March 2010, and after Crawford conceded that the federal court had lost diversity jurisdiction, the court dismissed the federal action without prejudice.

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