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Jackson v. Doe

A plaintiff who files a civil action just before the expiration of the statute of limitation does not have to use express mail to expedite service of the complaint because O.C.G.A. § 9-11-4 c's 5-day deadline applies to process servers, not the plaintiff.

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Vassie Jackson filed suit for personal injuries one day before the running of the statute of limitations. The court dismissed her suit for failure to serve the defendant within the statute of limitations. Relying on OCGA § 9-11-4 c, the court found that Jackson failed to diligently serve the defendant within five days of filing the complaint, and that therefore service did not relate back to the time of the complaint. But the five-day time limit in OCGA § 9-11-4 applies to the process server, not the plaintiff, and therefore the court applied the wrong standard.

Jackson filed suit against an unknown person in the Superior Court of Washington County on December, 15, 1998; the limitation period expired the next day. The record reflects that seven days later, the Fulton County Sheriff’s Department received the summons and complaint for service on Jackson’s uninsured motorist carrier. The sheriff indicated on his “Entry of Service” dated December 23, that Cotton States Mutual Insurance Company could not be found in the jurisdiction. The Entry of Service was returned to Jackson but the record does not reflect how or when. On January 13, 1999, Jackson returned the summons and complaint to the same sheriff with instructions that service should be re-attempted. Cotton States was served on February 2, 1999, and it appears that the address was correct all along.

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