CASTLEBERRY v. OFFICE DEPOT INC et al
ORDER granting #15 Motion to Dismiss. Defendant Qianglong is dismissed as a party to this action. Ordered by US DISTRICT JUDGE HUGH LAWSON on 9/13/2017. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Civil Action No. 7:16-CV-202
WINN-DIXIE STORES, INC., OFFICE
DEPOT, INC., and QIANGLONG
FURNITURE CO., LTD.,
(“Qianglong”) Motion to Dismiss (Doc. 15). Qianglong moves to dismiss Plaintiff’s
claims for failure to serve the Chinese corporation before the expiration of the
applicable statute of limitations. For the reasons set forth below, the Court
GRANTS the motion.
Plaintiff Ronald Castleberry filed this personal injury and products liability
action against Defendants Winn-Dixie Stores, Inc. (“Winn-Dixie”), Office Depot,
Inc. (“Office Depot”) and Qianglong as Civil Action File No. 2006-CCV-1777 in
the Superior Court of Lowndes County on October 5, 2016. (Doc. 1-2). In his
Complaint, Plaintiff alleges that on October 7, 2014, while in the pharmacy area
of the Winn-Dixie store located in Valdosta, Georgia, he sat in a chair that slid out
from underneath him, causing him to fall to the floor. (Id. at ¶¶ 10-11). As a result
of the fall, Plaintiff claims he suffered injuries to his neck and back. (Id. at ¶ 11).
In addition to the grocery store, Plaintiff sued Office Depot, which sold the chair
to Winn-Dixie, and Qianglong, which manufactured the purportedly defective
chair. (Id. at ¶ 12).
Plaintiff served Office Depot with a copy of the Complaint and Summons
on October 10, 2016. (Doc. 1, p. 1). Winn-Dixie acknowledged service on
October 12, 2016. (Id.). In accordance with 28 U.S.C. §§ 1441 and 1446, WinnDixie and Office Depot removed the case to this Court on November 4, 2016.
(Id.). Several months later, on February 6, 2017, the Court entered an Order
(Doc. 8) directing Plaintiff to show cause why his case should not be dismissed
against Qianglong for failure to effect service. Plaintiff responded on February 27,
2017 (Doc. 9), explaining that Plaintiff’s counsel upon filing the lawsuit was
operating under the mistaken belief that China is not a member of the Hague
Convention for the purposes of serving foreign lawsuits and that he was
attempting to identify other methods of serving Qianglong within the jurisdiction of
the United States. Having discovered that China is a member of the Hague
Convention, Plaintiff then requested an additional 180 days to navigate the
complexities of serving Qianglong in China.
The Court agreed to permit Plaintiff an additional sixty (60) days in which
to serve Qianglong. (Doc. 10). The Court left open the possibility of extending
this timeline, provided Plaintiff could demonstrate to the Court that he had
undertaken reasonable methods to serve Qianglong. The Court further cautioned
Plaintiff that in the absence of evidence of his due diligence, the Court would
dismiss Qianglong from this lawsuit.
More than ten months have passed since Plaintiff’s lawsuit was removed
to this Court. And, still, there is no evidence that Plaintiff has properly served
Qianglong. Qianglong now moves the Court to dismiss this action, asserting that
in the absence of evidence of due diligence to ensure service of the complaint,
Plaintiff’s claims against Qianglong are barred by the statute of limitations.
Plaintiff contends that he has attempted service on Qianglong in a number of
fashions but to no avail. He requests that the Court grant him an additional 300
days in which to perfect service on Qianglong in China.
MOTION TO DISMISS STANDARD
When reviewing a motion to dismiss, the court shall accept “all well-
pleaded facts . . . as true, and the reasonable inferences therefrom are construed
in the light most favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d
1271,1273 n. 1 (11th Cir. 1999). The court must dismiss the complaint if, “on the
basis of a dispositive issue of law, no construction of the factual allegations will
support the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993) (citing Executive 100, Inc. v. Martin
County, 992 F.2d 1536, 1539 (11th Cir. 1991) and Bell v. Hood, 327 U.S. 678,
682 (1946)). Accordingly, to avoid dismissal under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
Plaintiff’s products liability claims against Qianglong arise from an accident
that occurred on October 7, 2014. Plaintiff alleges that because Qianglong
negligently manufactured the chair that caused his injury, Qianglong is strictly
liable for his permanent injuries. Georgia law requires that “[a]ctions for injuries
to the person shall be brought within two years after the right of action accrues.”
O.C.G.A. § 9-3-33; see also Smith, Miller & Patch v. Lorentzson, 254 Ga. 111
(1985) (applying O.C.G.A. § 9-3-33 to products liability cases based on personal
injuries); Daniel v. Am. Optical Corp., 251 Ga. 166, 167 (1983) (holding that
O.C.G.A. § 9-3-33 applies to products liability cases brought under theories of
strict liability and negligence). The parties here do not dispute that Plaintiff timely
filed his Complaint on October 5, 2016. However, it is now September, and
Plaintiff still has not perfected service on Qianglong.
Qianglong argues that Plaintiff’s claims against the Chinese corporation
should be dismissed because Plaintiff has failed to exercise diligence in serving
this defendant as required by Georgia law. Plaintiff contends that the federal
rules of civil procedure governing service on foreign corporations, not Georgia
law, apply. Fed.R.Civ.P. 4(f) and (h). Under Fed.R.Civ.P. 4(f), service on a
foreign corporation may be made “by any internationally agreed means of service
that is reasonably calculated to give notice, such as those authorized by the
Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents.” Plaintiff counters that because there is no clear deadline associated
for service under the Hague Convention,1 the Court should consider what efforts
Plaintiff has made in serving Qianglong and grant Plaintiff additional time in
which to locate and to serve Qianglong by the terms of the Hague Convention.
The Eleventh Circuit has consistently held that a federal court sitting in
diversity must apply the controlling state substantive law when determining the
timeliness of service. Aucoin v. Connell, 209 F.App’x 891, 892 (11th Cir. 2006).
In Aucoin, the Eleventh Circuit explained that:
In a suit where federal jurisdiction is founded on diversity of
citizenship, the statute of limitations is governed by state law under
the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The
applicable statute of limitations must come from state law. And the
law governing when the suit was commenced for purposes of the
statute of limitations is also governed by state law.
There is no binding authority specifying a time period for service under the
Hague Convention, and neither the Eleventh Circuit nor the Supreme Court has
spoken directly on the issue. See Regenicin, Inc. v. Lonza Walkersville, Inc., 997
F. Supp. 2d 1304, 1317 (N.D.Ga. 2014). However, it is generally understood that
even under the Hague Convention a due diligence standard applies. Id. at 1318.
Id. Thus, it is clear that in this case, where jurisdiction is based purely on diversity
of citizenship, that the Court must apply Georgia law to determine the timeliness
Under Georgia law, “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 (2001). Where service is made “after the expiration
of the applicable statute of limitation, the timely filing of the complaint tolls the
statute, but only if the plaintiff shows that he acted in a reasonable and diligent
manner in attempting to effectuate proper service as quickly as possible.” Sykes
v. Springer, 220 Ga. App. 388, 389 (1996). “The plaintiff also has the burden of
showing lack of fault.” Id. The test is “whether the plaintiff exercised due
diligence, not whether the defendant has suffered harm.” Duffy v. Lyles, 281 Ga.
App. 377, 379 (2006) (internal citations and punctuation omitted). Georgia courts
have defined “diligence” to mean “as quickly as possible.” Zeigler v. Hambrick,
257 Ga. App. 356, 358 (2002).
Plaintiff has not met his burden of showing by specific facts that he acted
diligently in serving Qianglong. When Plaintiff responded to the Court’s show
cause order in February 2017, Plaintiff readily acknowledged that Qianglong had
not been served. (Doc. 9, p. 1). Plaintiff also informed the Court at that time that
Plaintiff had been unable to discern a means of serving Qianglong within the
United States and that service likely would have to be made according to the
requirements of the Hague Convention. (Id. at 2-3).
Since that time, it is apparent that Plaintiff has taken no legitimate steps
toward perfecting service under the Hague Convention or via any other
acceptable method. Indeed, while Plaintiff claims to have hired a private
investigator and to
service on Qianglong’s American
representatives, Plaintiff has provided no specific evidence of the exact
measures he has undertaken to serve Qianglong. The only efforts evident to the
Court are Plaintiff’s service attempts on representatives of XL Catlin, which the
Court understands to be Qianglong’s liability insurer. And Plaintiff has offered no
explanation why service on this entity is an effective substitute for service on
Plaintiff’s continued complaint that service under the Hague Convention is
complicated, expensive, and time consuming is not sufficient to warrant granting
Plaintiff additional time to serve Qianglong. Plaintiff has known since at least
February 2017 that he would be required to serve Qianglong under terms of the
international treaty, yet he has not demonstrated that he has taken any steps
toward that end. The Court previously warned Plaintiff that if he failed to show the
Court what attempts had been made to meet the service requirements under the
Hague Convention, the Court would be disinclined to extend the time for service
Therefore, finding that Plaintiff has not acted “as quickly as possible” to
serve Qianglong, and finding no basis to extend the time for service, the Court
grants Qianglong’s motion to dismiss and denies Plaintiff’s request for a 300 day
extension of time to perfect service. Zeigler, 257 Ga. App. at 358.
For the foregoing reasons, the Court GRANTS Defendant’s motion.
Qianglong is dismissed as a party to this action.
SO ORDERED this 13th day of September, 2017.
s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
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