VALENTINE v. EVERETT DYKES GRASSING COMPANY INCORPORATED et al

Filing 8

ORDER GRANTING 4 Motion to Dismiss. Valentine's claims are barred by the statute of limitations and are accordingly DISMISSED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/15/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GARY VALENTINE,
Plaintiff,
v.
EVERETT DYKES GRASSING CO. INC,
DYKES CONSTRUCTION INC.,
Defendants.

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Case No: 5:16-cv-537 (MTT)

ORDER
Defendants Everett Dykes Grassing Company, Inc. (Dykes Grassing) and Dykes
Construction Inc. (Dykes Construction), move to dismiss Plaintiff Valentine’s complaint,
asserting that his claims are barred by the statute of limitations. Doc. 4. Valentine, who
is represented by counsel, failed to respond.
Valentine, his truck, and his dog were injured in a single-vehicle accident on
March 22, 2012. Doc. 1 ¶¶ 8, 10, 14. On December 8, 2016, he filed this action
asserting that the Defendants’ road construction was defective, incomplete, not properly
marked, and not accompanied by appropriate safety barriers, causing his injuries. Id.
¶¶ 10, 11, 14. This action is clearly barred by the statute of limitations unless tolled.
See O.C.G.A. §§ 9-3-31 (“Actions for injuries to personalty shall be brought within four
years after the right of action accrues.”); 9-3-33 (“[A]ctions for injuries to the person shall
be brought within two years after the right of action accrues . . . .”).
In his complaint, Valentine asserts that the complaint “is a refile under O.C.G.A.
9-11-41.” Doc. 1 ¶ 4. As explained by the Defendants, Valentine initially filed an action
asserting these claims on March 13, 2014, and “dismissed the initial action without
prejudice on June 15, 2016 after failing to file a response to Defendants’ motion for
summary judgment within the time allowed by law.” Doc. 4 at 1. The Defendants,

somewhat generously,1 construe this action as a renewal action under O.C.G.A. § 9-261, which can toll the statute of limitations. Id. The Defendants argue that the statute of
limitations is not tolled under the renewal statute because: (1) Valentine never served
Dykes Grassing in the initial action; and (2) Valentine failed to exercise diligence in
serving the Defendants in this action.
It is clear that O.C.G.A. § 9-2-61 does not permit a plaintiff to renew a claim
against a party never served in the initial action. See, e.g., Osborne v. Hughes, 200 Ga.
App. 558, 559, 409 S.E.2d 58, 59 (1991). The question is whether Valentine’s service
of Dykes Grassing was insufficient. The Sheriff’s Entry of Service forms from the initial
action, attached to the Defendants’ motion,2 show that service was intended to be made
separately to “Everett Dykes Grassing 10 Inc” and “Dykes Construction Inc.” Docs. 4 at
3-4; 4-2; 4-3. Dykes Grassing concedes that the address shown on these forms was its
address. Doc. 4 at 10-12. However, both forms, dated March 18, 2014, show service
on a Kailey Taylor on behalf of only Dykes Construction.3 Id. Neither form mentions
service on Dykes Grassing. Id. Dykes Grassing raised the defense of insufficient
service of process in the initial action, and Valentine apparently made no other attempt
to serve Dykes Grassing before dismissing that action. Id. at 7. These facts are
insufficient to show service on Dykes Grassing in the initial action. Accordingly,
Valentine’s claim against Dykes Grassing is not saved by the renewal statute and is
barred by the statute of limitations.

1

Valentine’s allegation that “this is a refile under O.C.G.A. 9-11-41” is insufficient. Valentine fails to
allege anything about the initial action, including the identity of the claims in that action, whether the
defendants here were served in that action, and whether Valentine has paid the costs in that action.

2

Valentine has not responded. So, of course, he has not objected to the Court’s consideration of
these documents. Cf. Teel v. Wal-Mart Stores E. LP, No. 4:10-CV-114 CDL, 2010 WL 5462511, at *2 n.4
(M.D. Ga.) (considering evidence outside of pleadings in addressing similar motion to dismiss).

3

A corporations search on the Georgia Secretary of State website reveals that Dykes Construction
was administratively dissolved September 2, 2012 (less than sixth months after Valentine’s accident, but
over a year before service of process in the initial action).

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Moreover, Valentine was not diligent in serving the Defendants in this action.
And diligence in service was necessary to toll the statute of limitations under Georgia
law. The Defendants correctly note that the six-month renewal period expired about a
week after Valentine’s refiling. The cases cited by the Defendants make clear that,
under these circumstances, Valentine has the burden to show at least reasonable
diligence in serving the Defendants. See, e.g., Teel v. Wal-Mart Stores E. LP, 2010 WL
5462511, at *1 (M.D. Ga.); Webster v. W. Express, Inc., 2007 WL 2782457, at *4 (M.D.
Ga.). The facts recited by the Defendants make it equally clear that Valentine has not
done so. It appears that Valentine knew where to serve the Defendants, but made no
attempt to do so until February 22, 2017—76 days after filing the complaint and 69 days
after the expiration of the six-month renewal period. This delay, unexplained, is
sufficient to doom Valentine’s claim. Cf. Fusco v. Tomlin, 285 Ga. App. 819, 648 S.E.2d
137 (2007); Davis v. Bushnell, 245 Ga. App. 221, 537 S.E.2d 477 (2000).
On March 29, 2017, over two weeks after the motion to dismiss was filed,
Valentine filed a proof of service stating that a Lee Perry “served the summons on
Stephen Starling, who is designated by law to accept service of process on behalf of
Dykes Construction on 2-22-17.” Doc. 7 at 1. This is likely sufficient to show service as
to Dykes Grassing;4 but still, the Court is astonished at Valentine’s sloppiness.
Valentine has been on notice since April 14, 2014, when Dykes Grassing asserted
insufficient service in the initial action, of the importance of serving Dykes Grassing (in
distinction from Dykes Construction). Doc. 4-4 at 1, 6. Incredibly, after making this
error in the initial case and receiving the Defendants’ motion to dismiss questioning
service in this case (Doc. 4 at 10-11), Valentine’s proof of service does not mention
Dykes Grassing. More incredibly, Valentine has not tried to explain the delay in service.

4

A corporations search on the Georgia Secretary of State website as to Dykes Grassing reveals that
Stephen Starling is that company’s registered agent. Again, Dykes Construction is defunct. See note 1
supra.

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Valentine’s lack of diligence in serving the Defendants is patent. The
Defendants’ motion (Doc. 4) is GRANTED. Valentine’s claims are barred by the statute
of limitations and are accordingly DISMISSED.
SO ORDERED, this 15th day of May.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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