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Moody v. Gilliam

The plaintiff failed to exercise the greatest possible due diligence in serving the defendant outside the statute of limitation after she became aware of a problem with service.

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Blanche Moody sued Melissa Gilliam for injuries she sustained in an automobile accident. The trial court granted Gilliam’s motion to dismiss the complaint based on insufficient service of process. Moody appeals. We find no error and affirm. Moody filed a complaint against Gilliam on October 25, 2005, two days before the expiration of the two-year statute of limitation for personal injury actions.1 On November 2, 2005, a sheriff’s deputy filed a “non est” return of service stating that Gilliam no longer lived at the Clayton County address listed on the summons. On December 7, Gilliam filed an answer in which she raised the defense of insufficient service of process. She then filed a motion to dismiss Moody’s complaint on December 20.

Moody hired a private investigator on December 8 who discovered that Gilliam resided at a DeKalb County address. In light of this discovery, Moody filed a motion on December 30 to transfer the case to DeKalb County, and the trial court granted that motion on January 5, 2006. On January 31, the DeKalb County State Court granted Gilliam’s motion to dismiss Moody’s complaint for insufficient service of process.

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