OWNERS INSURANCE COMPANY v. Anderson et al

Filing 15

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
COLUMBUS DIVISION
OWNERS INSURANCE COMPANY,

*

Plaintiff,

*

vs.

*
CASE NO. 4:16-CV-368 (CDL)

TERRELL ANDERSON, BETTY STOKES, *
and CHARLES MIMS,
*
Defendants.
*
O R D E R
Plaintiff
service

by

Owners

Insurance

publication

on

Company

Defendant

filed

Betty

a

motion

for

For

the

Stokes.

reasons set forth below, the motion (ECF No 10) is granted.
Under

Federal

Rule

of

Civil

Procedure

4(e)(1),

an

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).

If the

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.”

Id.

Here, Owners Insurance seeks a declaration regarding its
obligations under a car insurance policy it issued to Terrell
Anderson.

In an underlying personal injury lawsuit, Charles

Mims alleges that Stokes, while driving Anderson’s car, caused a
wreck

that

resulted

in

injuries

to

Mims.

Owners

Insurance

claims in this declaratory judgment action that it has no duty
to defend or indemnify Stokes (or Anderson) in the underlying
lawsuit.

The Court finds that a claim exists against Stokes and

that she is a necessary or proper party in this action.
The

next

question

is

whether

Owners

Insurance

presented

enough evidence to show that it could not locate Stokes despite
the

exercise

of

due

diligence.

Before

ordering

service

by

publication, the Court must find that service by publication
satisfies

due

process;

“[w]here

the

defendant’s

address

is

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 v.

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.

2

First, Owners Insurance

attempted to serve Stokes personally at her last known address,
154 Wendell Drive, Columbus, Georgia 31903.
that

address,

who

is

Stokes’s

brother,

The resident at

informed

the

process

server that he had not seen or heard from Stokes in more than a
year.

Owners

Insurance

then

asked

Anderson

about

Stokes’s

whereabouts, but he had lost contact with Stokes and did not
know

where

to

find

her.

Owners

Insurance

received

some

information suggesting that Stokes may live in Texas, but Owners
Insurance could not locate her.
“skiptrace”

on

Stokes

information for her.

but

Finally, Owners Insurance ran a

could

not

find

current

contact

From this evidence, the Court is satisfied

that Owners Insurance exercised reasonable diligence in trying
to ascertain Stokes’s whereabouts.
appropriate

to

accordance

with

order
the

service

The Court therefore finds it

on

procedures

set

Stokes
forth

by
in

publication

in

O.C.G.A. § 9-11-

4(f)(1)(C).
The Court orders Owners Insurance to coordinate publication
of

the

notice

on

Stokes

in

each

newspaper

Insurance wishes to have the notice published.

in

which

Owners

Owners Insurance

shall determine the procedures for placing the notice in each
newspaper.

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);

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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
published.
The proposed notice shall comply with the
requirements of O.C.G.A. § 9-11-4(f)(1)(C).
Once

Owners

Insurance

provides

the

cover

letter(s),

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
complete.
obtain

Once publication is complete, Owners Insurance shall

and

demonstrating

submit
that

to
the

the

Court

notice(s)

was

a

publisher’s
published

in

affidavit
accordance

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,
Georgia 31903):
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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