OWNERS INSURANCE COMPANY v. Anderson et al
ORDER granting 10 Motion for Service by Publication. Ordered by US DISTRICT JUDGE CLAY D LAND on 03/23/2017. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
OWNERS INSURANCE COMPANY,
CASE NO. 4:16-CV-368 (CDL)
TERRELL ANDERSON, BETTY STOKES, *
and CHARLES MIMS,
O R D E R
reasons set forth below, the motion (ECF No 10) is granted.
individual “may be served in a judicial district of the United
States by . . . following state law for serving a summons in an
action brought in courts of general jurisdiction in the state
where the district court is located or where service is made.”
Georgia law permits service by publication “[w]hen the person on
whom service is to be made resides outside the state, or has
departed from the state, or cannot, after due diligence, be
found within the state, or conceals himself or herself to avoid
the service of the summons.” O.C.G.A. § 9-11-4(f)(1)(A).
Court finds that a claim exists against the defendant to be
served and that the defendant is a necessary or proper party,
the Court “may grant an order that the service be made by the
publication of summons.”
Here, Owners Insurance seeks a declaration regarding its
obligations under a car insurance policy it issued to Terrell
In an underlying personal injury lawsuit, Charles
Mims alleges that Stokes, while driving Anderson’s car, caused a
claims in this declaratory judgment action that it has no duty
to defend or indemnify Stokes (or Anderson) in the underlying
The Court finds that a claim exists against Stokes and
that she is a necessary or proper party in this action.
enough evidence to show that it could not locate Stokes despite
publication, the Court must find that service by publication
unknown, service by publication is constitutionally permissible
upon a showing that reasonable diligence has been exercised in
attempting to ascertain the defendant’s whereabouts.”
McDade, 435 S.E.2d 24, 26 (Ga. 1993).
Based on the affidavits submitted by Owners Insurance and
the representations counsel made at the telephone conference on
the motion for service by publication, Owners Insurance took the
following actions to locate Stokes.
First, Owners Insurance
attempted to serve Stokes personally at her last known address,
154 Wendell Drive, Columbus, Georgia 31903.
The resident at
server that he had not seen or heard from Stokes in more than a
whereabouts, but he had lost contact with Stokes and did not
information suggesting that Stokes may live in Texas, but Owners
Insurance could not locate her.
information for her.
Finally, Owners Insurance ran a
From this evidence, the Court is satisfied
that Owners Insurance exercised reasonable diligence in trying
to ascertain Stokes’s whereabouts.
The Court therefore finds it
O.C.G.A. § 9-11-
The Court orders Owners Insurance to coordinate publication
Insurance wishes to have the notice published.
shall determine the procedures for placing the notice in each
For each newspaper, Owners Insurance shall:
1. Prepare for the Clerk of Court’s signature a cover letter
to the publisher providing instructions for publishing the
notice in accordance with the requirements of O.C.G.A. § 911-4(f)(1)(C);
2. Provide to the Clerk a check made out to the publisher for
the cost of publishing the notice; and
3. Prepare and submit to the Clerk a proposed notice to be
The proposed notice shall comply with the
requirements of O.C.G.A. § 9-11-4(f)(1)(C).
check(s), and proposed notice(s) to the Clerk, the Clerk shall
submit these items to the publisher(s) and cause publication of
the notice(s) and shall note on the docket when this task is
Once publication is complete, Owners Insurance shall
with O.C.G.A. § 9-11-4(f)(1)(C).
Within fifteen days of the date of this Order, the Clerk
shall send, via first class mail, the following items to Betty
Stokes at her last known address (154 Wendell Drive, Columbus,
1. A copy of the published notice;
2. A copy of this Order; and
3. A copy of the Complaint.
After these items are mailed to Stokes, the Clerk shall make a
note on the docket that this task is complete.
IT IS SO ORDERED, this 23rd day of March, 2017.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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