Abimbola v. Pate

The plaintiffs put forth nothing to explain their lack of diligence in effecting service within five days of the statute of limitation's expiration.

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Temitosan Abimbola, individually and as next friend of his daughter Jesutofunmi, and his wife Adelani Abimbola hereinafter plaintiffs appeal from the trial court’s order of June 26, 2007, which dismissed their pro se lawsuit against Elizabeth Westfall Pate arising from an automobile accident which occurred on December 10, 2003. Plaintiffs filed their complaint on December 9, 2005, the day before the running of the statute of limitation. The return of service reflects “notorious” service by serving Pate’s mother on December 29, 2005, at Pate’s Alpharetta address. On January 30, 2006, Pate’s answer was filed, raising the defenses of insufficiency of service of process, laches, and the running of the statute of limitation. On July 24, 2006, Pate filed her Motion for Summary Judgment, or in the Alternative, Motion to Dismiss based on the fact that plaintiffs failed to perfect service on her within the statute of limitation and failed to exercise due diligence in having her served. On August 3, 2006, Pate filed her supplement to her motion, attaching as Exhibit A her affidavit stating that she was a resident of Fulton County on December 9, 2005, had done nothing to conceal her whereabouts, and had never been served with the lawsuit. By amendment to her motion, filed on September 19, 2006, Pate submitted as Exhibit B, the affidavit of her mother, Pam Westfall, stating that her permanent address and usual place of abode of 20 years was in Anderson, South Carolina and that she was not residing with Pate on December 29, 2005. On September 19, 2006, Pate submitted her supplemental affidavit stating that her mother’s permanent residence and place of abode on December 29, 2005, was in Anderson, South Carolina and her mother was not residing with her on December 29, 2005.

A hearing was held on Pate’s motion on December 18, 2006, at which the trial court orally ruled that “without proper service, this court doesn’t have jurisdiction. So I’m granting the motion, Pate’s motion. . . .” A written order to this effect was filed that same day.

Abimbola v. Pate

The plaintiffs put forth nothing to explain their lack of diligence in effecting service within five days of the statute of limitation's expiration.

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to Daily Report