Allen v. Western Union Financial Services, Inc.

Filing 17

ORDER denying Defendant's 4 Motion to Dismiss pursuant to Rules 12(b)(5) and (6). Signed by Chief Judge Lisa G. Wood on 4/28/2015. (ca)

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RICHARD 0. ALLEN,
Plaintiff,
CV 214-140

V.

WESTERN UNION FINANCIAL
SERVICES, INC.,
Defendant.

ORDER

Plaintiff Richard Allen, a criminal defense attorney,
claims he lost attorney's fees and a client when Defendant
Western Union allegedly advised the client's grandfather not to
wire money to Plaintiff because Plaintiff was "not a lawyer" and
was a "fraud." Plaintiff filed his complaint alleging slander
per se three days before the statute of limitations period
closed and mailed the summons and complaint to the Fulton County
Sheriff's Office the day after filing the complaint. However,
the Sheriff's Office did not perfect service until 28 days after
the complaint was filed.
Defendant brings this motion to dismiss for insufficient
service (Dkt. no. 4). Because Plaintiff acted with the

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appropriate diligence in perfecting service, Defendant's motion
to dismiss is DENIED.
FACTUAL
The following allegations are taken from Plaintiff's First
Amended Complaint (Compi., Dkt. no. 5-1).
Plaintiff is a criminal defense attorney from Woodbine,
Georgia and is licensed to practice law in Georgia. Compl. 191 14. On or about July 19, 2013, Plaintiff met with an inmate in
the Camden County Jail to discuss representation in a criminal
case. Id. ¶ 7. The two reached an agreement under which the
inmate would ultimately pay a $25,000 fee for Plaintiff's
representation, with $2,500 paid upfront. Id. 91 8. The client
could only pay $750 immediately, and arranged for his
grandfather to wire Plaintiff the remaining $1,750 over the
weekend. Id.
The grandfather tried to make a money transfer to Plaintiff
on July 19 or 20, 2013, through Defendant Western Union's
Ridgeland, South Carolina retail location. Id. ¶ 9. When the
grandfather initiated the transfer, Defendant's agent told him
that there might be a problem with the transfer and asked that
the grandfather call a Western Union representative at the
provided phone number. Id. ¶ 10. The grandfather dialed the
number and spoke with a Western Union representative, who told
him that he should withdraw the money transfer to Plaintiff

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because "they had had problems with him before", "that Plaintiff
was not a lawyer", and that "he is a fraud", referring
specifically to Plaintiff. Id. ¶ 12. Plaintiff alleges that
these statements were false and malicious, and caused the
grandfather not to retain Plaintiff's services and to withdraw
the wire transfer. Id. 9191 13-14.
Plaintiff alleges that this is not the first time Western
Union has made these kinds of statements to Plaintiff's
potential clients. Id. ¶ 15. However, Plaintiff believed that on
these prior occasions he had adequately clarified with Western
Union that he is, in fact, an attorney, and that the incident
would not be repeated. Id. Plaintiff believes that the false
statements were nevertheless repeated because Western Union
recklessly failed to update information it kept on file in its
"fraud division." Id. IT 18, 30.
PROCEDURAL BACKGROUN

Georgia has a one year statute of limitations for slander.
Ga. Code Ann. See § 9-3-33. Thus, the statute of limitations for
Plaintiff's slander claim would expire on July 20, 2014.
Plaintiff filed his first complaint in Camden County
Superior Court on July 17, 2014 at 4:59 p.m. Dkt. no. 5-1. The
next morning, Plaintiff's legal secretary, Vickie Schwarz, sent
the service copies of the summons and complaint, along with a
Sherriff's Entry of Service form, by regular mail to the Civil

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Process Division of the Fulton County Sheriff's Office. Dkt. no.
6, Ex. P-i ("Schwarz Aff."), 91 3. Defendant Western Union, a
Colorado corporation, has a registered agent in Atlanta,
Georgia. Cornpl. ¶ 5. Plaintiff's intention was to have the
Fulton County Sheriff's office provide service of process on
Defendant's agent. The Sheriff's Entry of Service Form indicates
that the summons, complaint, and Sheriff's Entry of Service Form
were received by the Fulton County Sheriff's Office on July 21,
2014. Schwartz Aff. ¶ 4.
On July 24, 2014, Ms. Schwartz called the Camden County
Superior Court Clerk's Office to see if service had been
perfected on Defendant's agent. Id. ¶ 5. She was informed that
the Clerk's Office had not received the return of service. Id.
That same day, Ms. Schwartz called the Fulton County Sheriff's
Office, Civil Process Division, to ask if the service had been
made. She was told that it had not, but that it was "in line" to
go out. Id. ¶ 6. She told the person taking the call that "we
needed the lawsuit served as soon as possible." Id.
Ms. Schwartz called Fulton County again on August 18, 2014,
and was again told that the papers had not been served. She
reiterated the necessity for service as soon as possible. Id.
91 7. She called twice on August 25, 2014, and twice again on
August 26 and once on August 27 to inquire about the papers, but
each time she was told that no one knew where the paperwork was.

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Id. ¶ 8. No one told Ms. Schwartz during these phone calls that
the summons and complaint was actually served on August 14,
2014. Id.
Defendant removed the case to this Court pursuant to 28
U.S.C. §§ 1332 and 1441(a) on September 15, 2014, and filed the
present Motion to Dismiss on September 22, 2014.

Defendant challenges Plaintiff's Complaint under both Rules
12(b) (5) and (6). Defendant's Rule 12(b) (6) motion to dismiss is
premised on the theory that Plaintiff's claim is barred by the
applicable statute of limitations rather than the theory that
the allegations in Plaintiff's complaint were inadequately
pleaded. Dkt. no. 8, p. 3, n.4.
The Federal Rules of Civil Procedure allow for a party to
seek dismissal of a complaint for insufficient service of
process. Fed. R. Civ. P. 12(b) (5). Courts apply the same
analysis to a motion to dismiss for insufficient service of
process under Rule 12(b) (5) as they would for a motion to
dismiss for lack of personal jurisdiction under Rule 12 (b) (2)
Carrier v. Jordan, 714 F. Supp. 2d 1204, 1211 (S.D. Ga. 2008).
In that context, the defendant first bears the burden
of producing affidavits that, in non-conclusory
fashion, demonstrate the absence of jurisdiction. The
plaintiff then bears the burden of presenting "enough
evidence to withstand a motion for directed verdict."
If the plaintiff presents countering evidence, "the
court must construe all reasonable inferences in favor
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of the plaintiff." Absent an evidentiary hearing, the
plaintiff's presentation of sufficient evidence to
defeat a motion for directed verdict ends the inquiry
favorably to the plaintiff.
Lowdon PTY Ltd. Westminster Ceramics, LLC, 534 F. Supp. 2d 1354,
1360 (N.D. Ga. 2008) (internal citations omitted). The burden is
on the plaintiff to establish the validity of service of process
on the defendant. Id.
When ruling on a motion to dismiss brought pursuant to Rule
12(b) (6), a district court must accept as true the facts as set
forth in the complaint and draw all reasonable inferences in the
plaintiff's favor. Randall v. Scott, 610 F.3d 701, 705 (11th
Cir. 2010). Although a complaint need not contain detailed
factual allegations, it must contain sufficient factual material
"to raise a right to relief above the speculative level." Bell
Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
DISCUSSION

Defendant argues that Plaintiff's complaint was not timely
served and should be dismissed. Both parties agree that the
complaint was timely filed. The only question that needs to be
answered is whether the service of process 28 days after the
filing relates back to the time of the filing. See Dkt. no. 4,
Def.'s Motion to Dismiss, P. 4; Dkt. no. 6, Pl.'s Resp., p. 6.

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I. Late Service of Process and "Relating Back"

As noted above, Georgia has a one year statute of
limitations for "injuries to the reputation." Ga. Code Ann. § 93-33. A suit for slander or defamation is one for injury to the
reputation. Infinite Energy, Inc. v. Pardue, 713 S.E.2d 456, 463
(Ga. Ct. App. 2011) . In diversity cases, a federal court applies
the law of the forum in which it sits. Lau v. Klinger, 46 F.
Supp. 2d 1377, 1381 (S.D. Ga. 1999). Thus, in this case, the
Court will apply Georgia's commencement law because that law is
an integral part of Georgia's statute of limitations. See
Cambride Mut. Fire Ins. Co. v. City of Claxton, Ga., 720 F.2d
1230, 1233 (11th Cir. 1983) (holding that Georgia law determines
whether plaintiffs' suit is barred by the statute of limitations
where relation back of service of process is in question)
Georgia's process statute enumerates who may serve process,
and that list includes "[t]he sheriff of the county where the
action is brought or where the defendant is found or by such
sheriff's deputy." Ga. Code Ann. § 9-11-4(c) (1). "When service
is to be made within this state, the person making such service
shall make the service within five days from the time of
receiving the summons and complaint; but failure to make service
within the five-day period will not invalidate a later service."
Ga. Code Ann. § 9-11-4(c). For purposes of this statute, "the
person making such service" refers to the process server, not
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the party filing the complaint. Giles v. State Farm Mut. Ins.
Co., 765 S.E.2d 413, 416 (Ga. Ct. App. 2014).
If a party timely files a complaint but does not perfect
service until after the statute of limitations runs, as has
happened here, whether the service relates back to the date the
complaint was filed depends, in part, on how quickly process was
served: "if service is made within the five-day grace period
allowed by OCGA § 9-11-4(c), it relates back to the date the
complaint was filed as a matter of law." Id. at 417 (quoting
Williams v. Colonial Ins. Co., 406 S.E.2d 99 (Ga. Ct. App.
1991)) . But
[w]here a complaint is filed near the statute of
limitation and services is made after the statute
expires and after the five-day safe harbor provision
contained within OCGA § 9-11-4(c), the relation back
of the service to the date of filing is dependent upon
the diligence exercised by the plaintiff in perfecting
service.
Id. (quoting Moody v. Gilliam, 637 S.E.2d 759 (Ga. Ct. App.
2006)). The five-day grace period begins to run when the person
making the service receives the summons and complaint, not when
the plaintiff files the complaint. Id.
Here, Plaintiff filed his complaint on July 17, 2013,
within the statute of limitations. On July 18, his secretary
mailed the summons to the Fulton County Sheriff's Office, which
received the papers on July 21. The Fulton County Sheriff's
Office did not serve Defendant's agent with process until August

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14, 2014, 24 days aft receiving the papers. Thus, service was
perfected more than five days after the person making service
received the summons and complaint, and whether or not the
service relates back to the date the complaint was filed will
depend on Plaintiff's diligence in perfecting service.
The burden to prove diligent service rests on the
plaintiff. Zeigler v. Hambrick, 571 S.E.2d 418, 420 (Ga. Ct.
App. 2002), overruled in part on other grounds by Giles, 765
S.E.2d 413.' "[T]he correct test must be whether the plaintiff
showed that he acted in a reasonable and diligent manner in
attempting to insure that a proper service was made as quickly
as possible." Childs v. Catlin, 216 S.E.2d 360, 362 (Ga. Ct.
App. 1975) . The plaintiff "must provide specific dates or
details to show diligence and cannot rely on conclusory
statements." Zeigler, 571 S.E.2d at 420. In Zeigler, the
plaintiff failed in proving her diligence to perfect service
because she provided no evidence showing as much. Id. She
averred, without a supporting affidavit, that the marshal's
office she had enlisted to serve process "was having trouble
serving (defendant] due to demands on the office. Zeigler
provided no evidence, however, that she took any steps to ensure

Giles overruled dozens of prior cases "to the extent they misstate the rule
governing the calculation of the five-day grace period embodied in OCGA § 911-4(c)." Giles, 765 S.E.2d at 419. While these cases misstated the proper
calculation of the five-day grace period, their rulings on the "diligence"
factor still stand and will be relied upon in this Order.
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that her renewal action was served, such as by making inquiries
at the marshal's office or by requesting a special process
server." Id. (emphasis in original) . See also Scott v. Taylor,
507 S.E.2d 798, 799 (Ga. Ct. App. 1998) (action properly
dismissed when, among other faults, the plaintiff failed to
"show that the sheriff's office was contacted to ascertain the
reason for the delay in effectuating service.")
However, dismissal is improper where the plaintiff has
provided evidence of his diligent attempts to perfect service
and where fault in perfecting service lies exclusively with the
service processer. In Deloach v. Hewes, the Plaintiff filed his
complaint four days before the statute of limitations expired
but the marshal's office (an approved process server under Ga.
Code Ann. § 9-11-4

(C)

(2)) did not serve defendants until 39 days

later. 439 S.E.2d 94, 95 (Ga. Ct. App. 1993) . The Court of
Appeals held that dismissal was improper because the plaintiff
had provided the correct address to the marshal, who had the
statutory duty to accomplish service within five days, and
Plaintiff made several follow-up calls to the clerk's and
marshal's offices when service appeared to be late. Id. The
court observed that "[t]he plaintiff has no authority to require
the marshal's office to perform its duties, especially where the
plaintiff is unable to ascertain through inquiry to the clerk's
office or the marshal's office whether or not defendants have
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been served." Id.; see also Jackson v. Nguyen, 484 S.E.2d 337,
339 (Ga. Ct. App. 1997) ("As a matter of law, plaintiffs were
justified in relying on the sheriff to perform his duty to make
service within five days of receiving the summons and complaint,
at the address given. In this case . . . service would have been
timely if the sheriff had performed his duty."), overruled in
part on other grounds by Giles, 765 S.E.2d 413.
Here, Plaintiff has done everything that the cases cited
above have held reflect proper diligence. Plaintiff filed his
complaint within the statute of limitation; his secretary mailed
it to the Sheriff's Office the next day to process service; the
Service Process form had the correct address on it; when it
appeared that service had not yet been processed, Ms. Schwartz
called the Sheriff's office and was told it was "in line" to be
delivered; she called again, repeatedly, and was not provided
any information as to whether or not the service had been made.
All of Plaintiff's evidence of diligence is contained in Ms.
Schwartz's duly submitted affidavit. Plaintiff's evidence of
diligence is practically indistinguishable from the evidence
which the court in Deloach held could not support dismissal.
While the Sheriff's Office may not have processed service as
quickly as section 9-11-4(c) requires, Plaintiff has no power to
force the Sheriff to meet its statutory requirements, and thus
cannot be faulted for the Sheriff's delay.
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II. The Purported "Stricter Standard" for Slander Claims

Defendant argues that this Court should hold Plaintiff's
complaint to a stricter standard in determining if the complaint
survives Defendant's Rule 12(b) (5) and (6) motions to dismiss.
In Georgia, "[w]hen the claim alleged is a traditionally
disfavored 'cause of action,' such as malicious prosecution,
libel, and slander, the courts tend to construe the complaint by
a somewhat stricter standard." Jacobs v. Shaw, 465 S.E.2d 460,
463 (Ga. Ct. App. 1995) (emphasis in original), overruled on
other grounds by Infinite Energy, 713 S.E.2d at 463-64.
Defendant's reliance on this "stricter standard" rule is
problematic. The rule as discussed in Jacobs suggests that
complaints for slander are held to a stricter standard when the
adequacy of the pleadings is challenged, as opposed to the
complaint's compliance with proper procedure. See Id. ("Even a
liberal interpretation of the complaint fails to encompass
claims for republication of slander that Jacobs has failed to
plead."). But here, Defendant has disclaimed any potential
argument that Plaintiff's complaint fails to state a cause of
action for slander. Dkt. no. 8, p. 3 n.4. 2 Although Defendant
2

Had Defendant's 12(b) (6) motion to dismiss attacked the adequacy of the
pleadings, this Court would hold that, even under the "stricter standard,"
Plaintiff's complaint would survive a motion to dismiss for failure to state
a claim. In Georgia, "[s]lander or oral defamation consists in: . . . (3)
Making charges against another in reference to his trade, office, or
profession, calculated to injure him therein; or (4) Uttering any disparaging
words productive of special damage which flows naturally therefrom." Ga. Code
Ann. § 51-5 - 4(a). Plaintiff alleges that Defendant dissuaded a potential

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provides no prior examples of courts using this stricter
standard to dismiss a claim for failure to perfect service,
Defendant appears to suggest that this Court should nevertheless
dismiss Plaintiff's complaint because the Sheriff's failure to
make service until 28 days after the complaint was filed is
particularly egregious for a complaint alleging slander.
The Court is not convinced that this is how Georgia courts
intended the stricter standard for slander to be applied. But
even if it were, the standard speaks of holding the plaintiff's
complaint (as opposed to supporting affidavits) to the stricter
standard. Here, no matter how strict the Court should be in
requiring Plaintiff to file his complaint before the statute of
limitations expires, the complaint unquestionably shows that
Plaintiff filed the complaint three days before the end of the
limitations period. The real issue in dispute in this case,
though, is whether Plaintiff diligently attempted to perfect
service. And as discussed above, he did. This Court will not
misapply the "stricter standard" when inspecting Plaintiff's
diligence because Plaintiff is just as powerless to force the
Sheriff to perform his duties to serve a complaint for slander
as he is for any other type of complaint—favored or otherwise.

client from contracting with Plaintiff by telling the client that Plaintiff
was a "fraud" and "not a lawyer." Compl. ¶91 12-14. When construed in a light
most favorable to the Plaintiff, these allegations and others in the
complaint set forth adequate facts and details to state a cause of action for
defamation and slander.
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CONCLUSION

Plaintiff filed his complaint for slander before the
statute of limitations expired. He then diligently forwarded the
complaint to the Fulton County Sheriff's Office. When the
Sheriff's Office failed to make service within the statutory
five day grace period, Plaintiff diligently inquired as to the
status of the service. For this reason, the late service
nevertheless relates back to the date Plaintiff filed his
complaint, which was within the statute of limitations.
Therefore, Plaintiff's complaint is not barred by the statute of
limitations, and Defendant's motion to dismiss pursuant to Rules
12(b) (5) and (6) (Dkt. no. 4) is DENIED.

SO ORDERED, this 28TH day of April, 2015.

A

GODBEYD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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