Gottschalk v. Woods

Decision Date18 November 2014
Docket NumberNo. A14A0975.,A14A0975.
PartiesGOTTSCHALK v. WOODS et al.
CourtGeorgia Court of Appeals

David Edward Oles, Alpharetta, for Appellant.

Carlock, Copeland & Stair, John Leete Bunyan, Lewis Brisbois Bisgaard & Smith, Brantley Cole Rowlen, Dennis, Corry, Porter & Smith, Assunta S. Fiorini, Shannon McKenzie Sprinkle, Kawania Brown James, Anthony E. Stewart, Atlanta, Hall Booth Smith, Richard Neal Sheinis, for Appellees.

Opinion

BARNES, Presiding Judge.

After his first lawsuit was dismissed by the United States District Court for the Northern District of Georgia and the dismissal was affirmed by the United States Court of Appeals for the Eleventh Circuit, Dean Mark Gottschalk filed a purported renewal action in the Superior Court of Cobb County. The superior court dismissed all of Gottschalk's claims on the ground that they were time-barred, resulting in this appeal. We conclude that Gottschalk's claims were untimely, whether viewed under Georgia's renewal statute (OCGA § 9–2–61(a) ) or under the tolling provision of the federal supplemental jurisdiction statute (28 USC § 1367(d) ). As we explain below, under Georgia's renewal statute, Gottschalk was required to file his renewal action within six months of the Eleventh Circuit's decision affirming the district court's dismissal of his first lawsuit, which he failed to do. See OCGA § 9–2–61(a). Furthermore, the tolling provision of the federal supplemental jurisdiction statute does not apply if state law provides for a longer tolling period, and the federal statute provides only a 30–day grace period for refiling suit. See 28 USC § 1367(d). Because Georgia's renewal statute provides for a longer tolling period than the federal supplemental jurisdiction statute, the federal statute is inapplicable in this case. Accordingly, the trial court committed no error in concluding that Gottschalk's claims were time-barred under state and federal law, and we therefore affirm.

The record reflects that Gottschalk and his ex-wife had two children together before their divorce in March 2005. In April 2006, Gottschalk's ex-wife filed a petition for modification of child visitation rights in the Superior Court of Cobb County, seeking to have Gottschalk's visits with their children supervised (the “Modification Proceeding”). In December 2008, the superior court entered a final order in the Modification Proceeding that, among other things, granted the requested supervision. This Court subsequently affirmed that order on appeal. See Gottschalk v. Gottschalk, 311 Ga.App. 304, 715 S.E.2d 715 (2011).

In April 2009, Gottschalk filed a pro se complaint in the United States District Court for the Northern District of Georgia against 38 individuals and entities for their alleged misconduct related to the Modification Proceeding (the “Federal Lawsuit”). Gottschalk's complaint was brought pursuant to 42 USC §§ 1983 and 1985 and alleged numerous additional federal constitutional and statutory claims, as well as a state law claim for intentional infliction of emotional distress. He later amended his complaint to allege state law claims for the unauthorized disclosure of confidential medical information, slander, libel, and invasion of privacy.

On March 30, 2010, the district court dismissed Gottschalk's federal constitutional and statutory claims on several grounds. The district court declined to exercise supplemental jurisdiction over Gottschalk's pendant state law claims and dismissed them without prejudice. Gottschalk appealed the dismissal of his federal constitutional claims to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affirmed the district court in an unpublished opinion on June 16, 2011. The mandate from the Eleventh Circuit was issued on July 19, 2011.1

On December 20, 2011, Gottschalk, through counsel, filed the present action in the Superior Court of Cobb County against several of the same defendants who had been named in the Federal Lawsuit (the State Lawsuit).2 Gottschalk's complaint asserted claims for intentional infliction of emotional distress, slander, libel, unauthorized disclosure of confidential medical information, and invasion of privacy for alleged misconduct arising out of the Modification Proceeding. The complaint further alleged that the misconduct had occurred from April 2006 until April 2009. Additionally, the complaint alleged that the State Lawsuit was a proper renewal action timely brought pursuant to OCGA § 9–2–61(a) because it was filed within six months from the date the mandate issued from the Eleventh Circuit in the Federal Lawsuit.3

The defendants answered and raised several affirmative defenses, including that all of Gottschalk's claims were barred by the applicable statutes of limitation. The defendants subsequently moved to dismiss Gottschalk's complaint and/or for summary judgment on the same ground. The defendants argued that under Georgia's renewal statute, OCGA § 9–2–61(a), Gottschalk's deadline for filing his State Lawsuit was six months from June 16, 2011, the date that the Eleventh Circuit affirmed the district court's order dismissing his claims in the Federal Lawsuit, rather than from the later date when the Eleventh Circuit's mandate was issued. Because Gottschalk did not file his State Lawsuit until December 20, 2011, which was outside the six-month window for renewal calculated from June 16, 2011, the defendants contended that the lawsuit was untimely under OCGA § 9–2–61(a) and that Gottschalk thus could not take advantage of the statute's tolling provision. The defendants also contended that the State Lawsuit was untimely under the separate tolling provision of the federal supplemental jurisdiction statute, 28 USC § 1367(d), because it was filed more than 30 days after the dismissal of the Federal Lawsuit and thus fell outside the grace period afforded by that statute.

The superior court entered an order granting the motions to dismiss and for summary judgment that had been filed by the various defendants on the ground that all of Gottschalk's claims in the State Lawsuit were time-barred. The superior court concluded that the applicable statutes of limitation had run on Gottschalk's claims and that his State Lawsuit had not been refiled within the six-month window for renewal authorized by OCGA § 9–2–61(a). In this regard, the superior court agreed with the defendants that the sixth-month renewal period began to run from the date when the Eleventh Circuit affirmed the district court's dismissal of the Federal Lawsuit, rather than the from the later date when the mandate was issued. Consequently, the superior court concluded that Gottschalk's filing of the State Lawsuit on December 20, 2011 was untimely and dismissed all of his claims. In reaching this conclusion, the superior court did not address the tolling provision of the federal supplemental jurisdiction statute, 28 USC § 1367(d). Gottschalk now appeals the superior court's dismissal order.4

1. Gottschalk contends that the superior court erred in concluding that his complaint was not timely refiled in the State Lawsuit within the six-month window for renewal authorized by OCGA § 9–2–61(a). According to Gottschalk, the trial court should have measured the six-month renewal period from the date that the mandate from the Eleventh Circuit was issued. We disagree.

OCGA § 9–2–61, which governs the renewal of discontinued or dismissed cases, states in relevant part:

(a) When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later[ ]....

...

(c) The provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.

(Emphasis supplied.) By its plain language, Georgia's renewal statute provides that where, as here, the plaintiff's state-law claims were dismissed without prejudice for lack of subject matter jurisdiction by a federal court, and the original limitation period on those claims has expired,5 the plaintiff may refile his claims within six months after the dismissal. Id. The plaintiff carries the burden of affirmatively proving that his refiled lawsuit meets the criteria for renewal under OCGA § 9–2–61. See Morrison v. Bowen, 106 Ga.App. 464(2), 127 S.E.2d 194 (1962).

Gottschalk has failed to carry his burden of showing that the criteria for removal have been met in this case. Contrary to his assertion, the start of the six-month window for renewal under OCGA § 9–2–61(a) was triggered by the date the Eleventh Circuit affirmed the decision of the district court dismissing his Federal Lawsuit, not the later date when the Eleventh Circuit's mandate was issued. Our conclusion in this regard is controlled by Owens v. Hewell, 222 Ga.App. 563, 474 S.E.2d 740 (1996), where we addressed how to measure the six-month renewal period in cases where the original suit was dismissed by a federal court.

In Owens, the plaintiffs sought to renew their state-law claims in state court after (1) the federal district court dismissed their federal-law claims on the merits and dismissed their state-law claims without prejudice for lack of subject matter jurisdiction; (2) the Eleventh Circuit affirmed the dismissal; and (3) the United States Supreme Court denied their petition for a writ of certiorari. 222 Ga.App. at 563, 474 S.E.2d 740. We affirmed the dismissal of the plaintiffs' renewal suit as untimely because the original limitations period on the state-law claims had expired and the suit was filed more than six months after the Eleventh Circuit's decision...

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    • United States
    • Mercer University School of Law Mercer Law Reviews No. 67-1, September 2015
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