Johnson et al v. Bell et al

MOTION to Dismiss Complaint re Complaint, 72 Amended Complaint :

M.D. Ga.January 20, 2017

In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 1 of 4 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION KENNETH JOHNSON, et al., * * Plaintiffs, * * v. * Civil Action * File No. 7:16-CV-00141-WLS BRANDEN BELL, et al.. * * Defendants. * SPECIAL APPEARANCE MOTION TO DISMISS COMPLAINT AND AMENDED COMPLAINT OF DEFENDANTS MICHAEL ADAMS, STRYDE JONES, BRYCE WHITENER AND JACK WINNINGHAM Defendants Michael Adams, Stryde Jones, Bryce Whitener and Jack Winningham file this Motion to Dismiss Complaint (Doc. 1) and Amended Complaint (Doc. 72) pursuant to FRCP 12(b)(4) and (5) and show the Court as follows.1 1. This case is a renewal action under Georgia law (OCGA § 9-2-61) of several cases previously pending and dismissed by Plaintiffs in the Superior Court of Lowndes County, Georgia. 2. Movants Michael Adams (“Adams”), Stryde Jones (“Jones”), Bryce Whitener (“Whitener”) and Jack Winningham (“Winningham”) are Lowndes County Sheriff’s Deputies (Doc. 1, ¶¶ 30, 13, 35 and 17). 3. Lowndes County Sheriff Chris Prine is named as a defendant in this case. (Doc. 1, ¶ 9). 1 Adams, Jones, Whitener and Winningham make this special appearance without waiving, and expressly preserving, any and all defenses available to them under applicable law. Case 7:16-cv-00141-WLS Document 73 Filed 01/20/17 Page 1 of 4 In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 2 of 4 4. On or after December 30, 2016 Plaintiffs caused a copy of a summons and the Complaint (Doc. 1) to be delivered to Adams, Jones, Whitener and Winningham. The Amended Complaint (Doc. 72) has not been delivered to Adams, Jones, Whitener or Winningham. 5. The copy of a summons and the Complaint that Plaintiffs caused to be delivered to Adams, Jones, Whitener and Winningham was delivered to each of them by Lowndes County Sheriff’s Deputy James E. Rehberg. 6. The service upon Adams, Jones, Whitener and Winningham is not timely under Georgia law applicable to renewal actions, and the Complaint and Amended Complaint should therefore be dismissed. 7. The service upon Adams, Jones, Whitener and Winningham is not timely under Federal Rule of Civil Procedure 4, and the Complaint and Amended Complaint should therefore be dismissed. 8. Service by a Sheriff’s Deputy is not permitted or proper when the Sheriff is a party to the case. Such service is void and the Complaint and Amended Complaint should therefore be dismissed. 9. In support of their Motion, Adams, Jones, Whitener and Winningham rely upon the forgoing and upon their Memorandum of Law filed contemporaneously herewith and all other matters of record properly before the Court. Based on the foregoing, Defendants Adams, Jones, Whitener and Winningham respectfully request that the Court grant their Motion to Dismiss and enter an Order dismissing Plaintiffs’ Complaint and Amended Complaint. Case 7:16-cv-00141-WLS Document 73 Filed 01/20/17 Page 2 of 4 In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 3 of 4 This 20th day of January, 2017. ELLIOTT, BLACKBURN & GOODING, PC /s/ James L. Elliott James L. Elliott GA Bar No. 244244 Elliott, Blackburn & Gooding, PC Attorneys at Law 3016 North Patterson Street Valdosta, GA 31602 Phone: (229) 242-3333 Fax: (229) 242-0696 jelliott@ebbglaw.com Case 7:16-cv-00141-WLS Document 73 Filed 01/20/17 Page 3 of 4 In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 4 of 4 CERTIFICATE OF SERVICE This is to certify that I have this day served a copy of the foregoing the following by filing the same with the Court’s CM/ECF electronic filing system: CHEVENE B. KING, JR. THE C.B. KING LAW FIRM POST OFFICE DRAWER 3468 ALBANY, GA 31706 PATRICK T. O’CONNOR PAUL THRELKELD OLIVER MANER, LLP P.O. BOX 10186 SAVANNAH, GA 31412 TIMOTHY M TANNER 910 N PATTERSON ST VALDOSTA, GA 31601 THEODORE FREEMAN WAYNE S. MELNICK ARASH ALI SABZEVARI 661 FOREST PKWY FOREST PARK, GA 30297 DEVON ORLAND 40 CAPITOL SQUARE, S.W. ATLANTA, GA 30334-1300 JOHN GEE EDWARDS 108 E VALLEY ST VALDOSTA, GA 31601 This 20th day of January, 2017. ELLIOTT, BLACKBURN & GOODING, PC /s/ James L. Elliott James L. Elliott GA Bar No. 244244 Case 7:16-cv-00141-WLS Document 73 Filed 01/20/17 Page 4 of 4 In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 1 of 7 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION KENNETH JOHNSON, et al., * * Plaintiffs, * * v. * Civil Action * File No. 7:16-CV-00141-WLS BRANDEN BELL, et al.. * * Defendants. * SPECIAL APPEARANCE MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS COMPLAINT AND AMENDED COMPLAINT OF DEFENDANTS MICHAEL ADAMS, STRYDE JONES, BRYCE WHITENER AND JACK WINNINGHAM Defendants Michael Adams (“Adams”), Stryde Jones (“Jones”), Bryce Whitener (“Whitener”) and Jack Winningham (“Winningham”) file this Memorandum of Law in Support of Motion to Dismiss Complaint (Doc. 1) and Amended Complaint (Doc. 72) pursuant to FRCP 12(b)(4) and (5) and show the Court as follows.1 Procedural History This case is a “renewal” under Georgia law (OCGA § 9-2-61) of several cases previously pending and dismissed by Plaintiffs in the Superior Court of Lowndes County, Georgia. (Doc. 1, p. 2). Lowndes County Sheriff Chris Prine was the only named defendant in Civil Action No. 1 Adams, Jones, Whitener and Winningham make this special appearance without waiving, and expressly preserving, all defenses available to them under applicable law. Case 7:16-cv-00141-WLS Document 73-1 Filed 01/20/17 Page 1 of 7 In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 2 of 7 2013CV1230 and the remaining eighteen (18) LCSO Defendants were among the thirty-eight (38) named defendants in Civil Action No. 2015CV706. 2 On August 17, 2016, Plaintiffs initiated this action by filing the Complaint (Doc. 1) with the Clerk of Court. Plaintiffs waited 89 days to cause summonses to be issued by the Clerk of Court for Adams (Doc. 38), Jones (Doc. 8), Whitener (Doc. 13) and Winningham (Doc. 22). Just before midnight on November 15, 2016, the 90th day after filing, Plaintiffs’ counsel filed a Motion (Doc. 42) to extend the time to serve all of the named defendants. Adams, Jones, Whitener and Winningham are Lowndes County Sheriff’s Deputies (Doc. 1, ¶¶ 30, 13, 35 and 17). Lowndes County Sheriff Chris Prine is named as a defendant in this case. (Doc. 1, ¶ 9). More than 135 days after the filing of the Complaint, on or after December 30, 2016, Plaintiffs caused a copy of a summons and the Complaint (Doc. 1) to be delivered to Adams, Jones, Whitener and Winningham. The Amended Complaint (Doc. 72) has not been delivered to Adams, Jones, Whitener or Winningham. The copy of a summons and the Complaint that Plaintiffs caused to be delivered to Adams, Jones, Whitener and Winningham was delivered to each of them by Lowndes County Sheriff’s Deputy James E. Rehberg. Following the filing of their Motion (Doc. 42) to extend the time to serve defendants, Plaintiffs conceded in Plaintiffs’ Second Motion for Extension of Time (Doc. 54) that any service thereafter would be futile as to the state law claims which were filed on behalf of Plaintiffs individually, as well as to any claims in which service of process had not been perfected or accomplished. (Doc. 54, p. 1). Plaintiffs conceded this because they could not show the diligence required by state law in perfecting service following commencement of a renewal action under OCGA § 9-2-61. 2 The Civil Action Numbers referred to are the case numbers from the Superior Court of Lowndes County, Georgia. Case 7:16-cv-00141-WLS Document 73-1 Filed 01/20/17 Page 2 of 7 In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 3 of 7 Also, on December 20, 2016 Plaintiffs’ counsel admitted in open court that none of the Defendants had been served as required by law and likewise admitted that Plaintiffs could not show “good cause” for failing to timely perfect service within the meaning of FRCP 4(m). Thus, Plaintiffs have admitted their failure to satisfy the service requirements of Georgia law when commencing and serving a renewal action. And Plaintiffs have admitted that no service has been perfected and that they cannot meet the “good cause” requirement of FRCP 4(m) even if such rule even applies. Only after making these concessions and admissions did Plaintiffs cause a copy of a summons and the Complaint to be delivered to Adams, Jones, Whitener and Winningham. And that delivery was made upon these Lowndes County Sheriff’s Deputies by another Lowndes County Sheriff’s Deputy in a case in which the Lowndes County Sheriff himself is named as a defendant. Argument and Authorities Plaintiffs previously dismissed and re-filed this case outside the applicable statute of limitations. Georgia’s renewal statute provides in pertinent part: “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 . . . .” O.C.G.A. § 9-2-61(a) (emphasis added). The question is thus “when the instant lawsuit was ‘commenced’ as contemplated by the renewal statute.” Georgia law provides that, in order to obtain the benefit of tolling of the statute of limitations which is what the renewal statute is designed to provide, an action is not “commenced” until service of process has been made and service that is perfected after expiration of the statute of limitations will relate back to the date of filing of the complaint only in two Case 7:16-cv-00141-WLS Document 73-1 Filed 01/20/17 Page 3 of 7 In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 4 of 7 conditions: (i) when the plaintiff perfected service within five days of the filing of the complaint; and (ii) when the plaintiff otherwise diligently attempted to perfect service. See Johnson v Am. Meter Co., 412 F. Supp.2d 1260, 1263 (N.D. Ga. 2004) (collecting Georgia renewal cases recognizing and applying this rule); Morris v. Haren, 52 F.3d 947, 949 (11th Cir. 1995) (applying state definition of commencement to renewal action filed in federal court); and see also Cambridge Mut. Fire Ins. Co. v. Claxton, 720 F.2d 1230, 1233 (11th Cir. 1983); Wade v. Whalen, 232 Ga. App. 765, 765, 504 S.E.2d 456, 458 (1998) (holding that the commencement date of an action will relate back only if the plaintiff can show “that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible”), overruled on other grounds in Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 320-321, 765 S.E.2d 413 (2014). If “service is perfected more than five days after the filing of the complaint and after the statute of limitations has run, service will relate back only if the plaintiff diligently attempted to perfect service.” Claxton, 720 F.2d at 1233; see also Morris, 52 F.3d at 949. In order to show diligence in attempting service, the plaintiff must “show that he acted in a reasonable and diligent manner” to “effectuate proper service as quickly as possible.” Johnson, 412 F. Supp.2d at 1263- 1264; Wade, 232 Ga. App. at 765, 504 S.E.2d at 458. “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.” Johnson, 412 F. Supp.2d at 1264. “As the burden rests on the plaintiff to ensure diligent service, she must provide specific dates or details to show diligence and cannot rely on conclusory statements.” Zeigler v. Hambrick, 257 Ga. App. 356, 357, 571 S.E.2d 418 (2002) (affirming a finding of a lack of diligence where the plaintiff failed to provide any evidence that she took any Case 7:16-cv-00141-WLS Document 73-1 Filed 01/20/17 Page 4 of 7 In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 5 of 7 steps to ensure that her renewal action was served, such as by making inquiries at the marshal’s office or by requesting a special process server). Plaintiffs cannot and do not show the required diligence. To the contrary, Plaintiffs concede no timely effort whatsoever was made to serve any of the defendants. Plaintiffs’ first attempt at service on any of movants here was 135 days after suit was filed. Because this action was filed after the expiration of the two-year statute of limitations, because service did not occur within five days of filing, and because Plaintiffs cannot and did not show diligent efforts to effectuate service and instead admit to the contrary, they cannot avail themselves of the renewal statute to toll the two-year statute of limitations and all of their claims are time barred. The purported service of Adams, Jones, Whitener and Winningham is out of time under applicable Georgia law and the Complaint and Amended Complaint should therefore be dismissed. To the extent that the Federal Rules of Civil Procedure apply to this re-filing of a case under Georgia’s renewal statute, the Complaint and Amended Complaint should still be dismissed. FRCP 4(m) requires that service be perfected within 90 days of filing of the complaint. Otherwise, the case should be dismissed. Here, the purported service on Adams, Jones, Whitener and Winningham did not occur until 135 or more days after the filing of the complaint. Therefore, such purported service is out of time and the Complaint and Amended Complaint should be dismissed. Finally, service upon Sheriff’s Deputies by another Sheriff’s Deputy in a case in which the Sheriff is a party is not permitted and is improper service. FRCP 4(c)(2) provides that “Any person who is at least 18 years old and not a party may serve a summons and complaint” (emphasis supplied). Under Georgia law, process shall be served by the sheriff or sheriff’s deputy or by “a Case 7:16-cv-00141-WLS Document 73-1 Filed 01/20/17 Page 5 of 7 In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 6 of 7 person who is not a party [and] not younger than 18 years of age …” (emphasis supplied). OCGA § 9-11-4(c)(1) and (4). Here, the Lowndes County Sheriff is named as a party. Adams, Jones, Whitener and Winningham are Lowndes County Sheriff’s Deputies. Plaintiffs’ purported service of those Sheriff’s Deputies was accomplished by a Lowndes County Sheriff’s Deputy. Such purported service is not permitted by FRCP 4 or OCGA § 9-11-4. See also Abrams v. Abrams 239 Ga. 866 (1977) (holding that sheriffs are disqualified to perform their official duties in cases in which they have an interest; service made by a party is void). Plaintiffs’ purported service of Adams, Jones, Whitener and Winningham is void. Conclusion Plaintiffs’ purported service of Adams, Jones, Whitener and Winningham is out of time under Georgia law, is out of time under the Federal Rules of Civil Procedure and is also void. Therefore, Adams, Jones, Whitener and Winningham respectfully request that the Court enter an Order dismissing Plaintiffs’ Complaint and Amended Complaint. This 20th day of January, 2017. ELLIOTT, BLACKBURN & GOODING, PC /s/ James L. Elliott James L. Elliott GA Bar No. 244244 Elliott, Blackburn & Gooding, PC Attorneys at Law 3016 North Patterson Street Valdosta, GA 31602 Phone: (229) 242-3333 Fax: (229) 242-0696 jelliott@ebbglaw.com Case 7:16-cv-00141-WLS Document 73-1 Filed 01/20/17 Page 6 of 7 In the United States District Court for the Middle District of Georgia Valdosta Division Civil Action File No. 7:16-CV-00141-WLS Page 7 of 7 CERTIFICATE OF SERVICE This is to certify that I have this day served a copy of the foregoing the following by filing the same with the Court’s CM/ECF electronic filing system: CHEVENE B. KING, JR. THE C.B. KING LAW FIRM POST OFFICE DRAWER 3468 ALBANY, GA 31706 PATRICK T. O’CONNOR PAUL THRELKELD OLIVER MANER, LLP P.O. BOX 10186 SAVANNAH, GA 31412 TIMOTHY M TANNER 910 N PATTERSON ST VALDOSTA, GA 31601 THEODORE FREEMAN WAYNE S. MELNICK ARASH ALI SABZEVARI 661 FOREST PKWY FOREST PARK, GA 30297 DEVON ORLAND 40 CAPITOL SQUARE, S.W. ATLANTA, GA 30334-1300 JOHN GEE EDWARDS 108 E VALLEY ST VALDOSTA, GA 31601 This 20th day of January, 2017. ELLIOTT, BLACKBURN & GOODING, PC /s/ James L. Elliott James L. Elliott GA Bar No. 244244 Case 7:16-cv-00141-WLS Document 73-1 Filed 01/20/17 Page 7 of 7