Johnson v. American Meter Co.

• Decision Date: 30 August 2004
• Docket Number: No. CIV.A.1:03CV3272-JEC.,CIV.A.1:03CV3272-JEC.
• Citation: 412 F.Supp.2d 1260
• Parties: Sidorva L. JOHNSON and Eric V. Johnson, Plaintiffs, v. AMERICAN METER COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

Page 1260

412 F.Supp.2d 1260

Sidorva L. JOHNSON and Eric V. Johnson, Plaintiffs, v. AMERICAN METER COMPANY, Defendant.

No. CIV.A.1:03CV3272-JEC.

United States District Court, N.D. Georgia, Atlanta Division.

August 30, 2004.

Michael Bernard King, Office of Michael B. King, Jonesboro, GA, for Plaintiffs.

Elisa Smith Kodish, Richard B. North, Jr., Nelson Mullins Riley & Scarborough, Atlanta, GA, for Defendant.

ORDER

CARNES, District Judge.

This case is presently before the Court on defendant's Motion to Dismiss Plaintiffs' Complaint with Prejudice [5]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendant's Motion to Dismiss Plaintiffs' Complaint with Prejudice [5] should be GRANTED.

BACKGROUND¹

I. FACTUAL BACKGROUND

On or about January 30, 2000, the gas meter on the outside of plaintiffs' home malfunctioned. (Pls.' Renewed Compl. for Damages, "Renewed Compl.," [1] at ¶ 2.) Gas entered their residence, causing an explosion, which then started a fire. (Id.) Plaintiffs allege that defendant negligently designed, manufactured and installed the gas meter. (Id. at ¶¶ 3, 14.) They claim that defendant knew or should have known of the gas meter's dangerous and defective condition and negligently failed to warn plaintiffs about this condition. (Id. at ¶¶ 4-5.) They also allege that defendant breached implied and express warranties. (Id. at ¶ 13.)

II. PROCEDURAL BACKGROUND

Plaintiffs originally filed this action in Fulton County Superior Court on January 30, 2002. (Product Liability Compl., attached as "Attach. A" to Pls.' Renewed Compl., [1].) They voluntarily dismissed the complaint on April 28, 2003. (Renewed Compl. [1].) Pursuant to O.C.G.A. § 9-2-61(a), they renewed their action on October 28, 2003 when they filed their complaint in this Court. (Id.) The Court has diversity jurisdiction over the case, as plaintiffs are domiciled in Georgia and defendant American Meter Company is incorporated in Delaware and has its principal place of business in Pennsylvania. (Id. at ¶ 1.) The "renewed" complaint contains the same allegations as those made in the previous complaint in state court and involves the same plaintiffs and defendant. (Renewed Compl. [1].)

The Federal Rules of Civil Procedure allow a plaintiff 120 days after the filing of a complaint to serve the defendant. FED. R. Civ. P. 4(m). On February 18, 2003, the Court's deputy clerk noted that plaintiffs had not served defendant with the renewed complaint and sent plaintiffs a notice directing that they serve defendant by February 25, 2004, which would have been the 120th day.² (Feb. 18, 2003 Notice [2].) Plaintiffs perfected service on February 23, 2004. (Notice of Service [3].)

Defendant has moved to dismiss with prejudice all of plaintiffs' renewed claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (Def.'s Mot. to Dismiss Pls.' Compl. with Prejudice, "Mot. to Dismiss," [5].) Defendant argues that because state law controls and plaintiffs did not properly perfect service in accordance with the controlling state law, plaintiffs' personal injury and property damage claims are timebarred. (Def.'s Mem. in Supp. of its Mot. to Dismiss Pls.' Renewed Compl. with Prejudice, "Def.'s Mem.," [5] at 1.) Plaintiffs counter that the statute of limitations is controlled by federal law and that they filed their renewed complaint and perfected service within the applicable federal period of limitations. Accordingly, they contend that the Court should not dismiss their claims. (Pls.' Resp. to Def.'s Mot. to Dismiss, "Pls.' Resp.," [10] at ¶ 2.)³

DISCUSSION

I. MOTION TO DISMISS STANDARD

Under Federal Rule 12(b)(6), a court may dismiss a claim for failure to state a claim upon which relief may be granted. When deciding whether to dismiss a claim under Rule 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff and accept the plaintiff's allegations of material fact as true. Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th Cir.1998). A court may grant a motion to dismiss if it finds that the plaintiff cannot prove any set of facts consistent with the complaint which would entitle him or her to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). Defendants bear "the `very high burden' of showing that the plaintiff cannot conceivably prove any set of facts that would entitle them to relief." Beck, 144 F.3d at 736.

II. GEORGIA'S STATUTES OF LIMTATIONS APPLY IN THIS CASE

State law concerning the applicable statute of limitations governs the outcome of this case because federal courts sitting in diversity must apply the controlling substantive law of the state. Cambridge Mut. Fire Ins. Co. v. City of Claxton, Georgia, 720 F.2d 1230, 1232 (11th Cir.1983) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). State statutes of limitations are substantive laws. Walker v. Armco Steel Corp., 446 U.S. 740, 752, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980); Guaranty Trust Co. of New York v. York, 326 U.S. 99, 110, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) (same). The Supreme Court has explained:

there is simply no reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts by the state statute of limitations should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants.

Walker, 446 U.S. at 753, 100 S.Ct. 1978.

Under Georgia law, actions for personal injuries must be brought within two years after the right of action accrues, and actions for property damage within four. O.C.G.A. §§ 9-3-30, 9-3-31, 9-3-33 (2004). Moreover, under Georgia law, service of process shall be made by the person making service within five days of the receipt of summons and complaint. O.C.G.A. § 9-11-4(c). Service of process later than five days but within the statute of limitations does not, however, appear to trigger any adverse consequences, as the statute also provides that "failure to make service within the five-day period will not invalidate a later service." Id. However, failure to serve within this five-day window, when service occurs after expiration of the statute of limitation, can potentially cause the plaintiff to run afoul of the statute of limitations, because in Georgia, "the mere filing of a complaint does not commence suit unless timely service is perfected as required by law." Tate v. Coastal Utilities, Inc. 247 Ga.App. 738, 739, 545 S.E.2d 124, 126 (2001), citing Ingram v. Grose, 180 Ga.App. 647, 647, 350 S.E.2d 289, 289-90 (1986). Rather, where service of process is made after expiration of the statute of limitations for a complaint filed within the statute, this service will relate back to the filing of the complaint only if (1) plaintiff has perfected service within five days of the filing of the complaint or (2) plaintiff has otherwise diligently attempted to perfect service. McAndrew v. Lockheed Martin Corp., 177 F.3d 1310, 1314 (1999), rev.'d on other grounds, 206 F.3d 1031 (11th Cir.2000) (en banc); Cambridge Mut. Fire Ins. Co., v. Claxton, 720 F.2d 1230, 1232 (11th Cir.1983).

Thus, as Georgia law does not deem an action to be commenced until service of process has been made and does not allow the service date to relate back to the date of filing of the complaint except under the two conditions noted supra, this Georgia law concerning service of process is an "integral part[ ] of the state statute of limitations." Cambridge, 720 F.2d at 1233. Accordingly, Georgia law concerning the timeliness of service of process, not federal law, shall be applied in determining whether a plaintiff has complied with the relevant statute of limitations.

In the typical case, a plaintiff both files a complaint and perfects service before the expiration of the statute of limitations. For the procrastinating plaintiff who files suit at the end of the limitations period, the statute of limitations will not bar suit as long as the plaintiff perfects service within five days after filing the complaint, even if service is perfected after the statute of limitations expires. McAndrew, supra. The plaintiff who fails to perfect service within five days after filing the complaint and who serves process after the expiration of the statute of limitations will, however, be able to survive a statute of limitations attack only if he can show that he acted in a "reasonable and diligent manner" to "effectuate proper service as quickly as possible." Sykes v. Springer, 220 Ga.App. 388, 390, 469 S.E.2d 472, 473-75 (1996). Further, the plaintiff bears the burden of showing lack of fault. Id. Diligence is measured from the time of filing the renewal action, not from the ending date of the six-month period under the renewal statute. Magsalin v. Chace, 255 Ga.App. 146, 147-48, 564 S.E.2d 554, 556, (2002). Moreover, in describing the degree of diligence required, Georgia courts have "consistently used the phrase `as quickly as possible,'" Zeigler v. Hambrick, 257 Ga.App. 356., 358, 571 S.E.2d 418, 420 (2002). Accord Sykes, supra, 220 Ga.App. at 390, 469 S.E.2d at 474-75 ("the greatest possible diligence"); Lau v. Klinger, 46 F.Supp.2d 1377, 1382 (S.D.Ga.1999) (applying Georgia law) (citations omitted). See also In Re: Multidistrict Litig. Concerning Air Crash Disaster Near Brunswick, Georgia April 4, 1991, 158 F.R.D. 693, 700 (N.D.Ga.1994) (O'Kelly, C.J.) (applying Georgia law) (citation omitted).

In this case, plaintiff has utilized the Georgia renewal statute. O.C.G.A. § 9-2-61(a) (2004). That is, after dismissing his original complaint filed in state court, plaintiff renewed or refiled this complaint in this Court. The Georgia renewal statute permits a plaintiff to dismiss his complaint and refile after expiration of the statute of limitations, as long as the...