Cummings v. Douberly
Filing
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ORDER granting Defendant's 5 Motion for Summary Judgment. The Clerk is directed to enter the appropriate judgment. Signed by Chief Judge Lisa G. Wood on 7/21/2015. (ca)
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KATRINA CUMMINGS,
Plaintiff,
CV 214-152
V.
JAMES RICHARD DOUBERLY,
Defendant.
ORDER
Plaintiff Katrina Cummings seeks to renew her dismissed
complaint, which alleges violations of her constitutional rights
under 42 U.S.C. § 1983, against Defendant James Richard
Douberly. See Dkt. no. 1 ("Renewed Complaint"). This Court
dismissed Plaintiff's original complaint without prejudice in a
prior action because Plaintiff failed to show proof that she had
effectuated timely service on Defendant. She now comes before
the Court with proof of untimely service on Defendant, and
Defendant has moved to dismiss the Renewed Complaint as timebarred. Dkt. no. 5. This Court converted the Motion to Dismiss
into a Motion for Summary Judgment. Dkt. no. 12. Because the
prior complaint was dismissed by a judicial determination that
dismissal was authorized, the prior action was void and thus is
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not renewable under Georgia's renewal statute. Therefore,
Defendant's Motion for Summary Judgment (Dkt. no. 5) is GRANTED.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff alleges that on April 27, 2011, she returned from
the store to find several police officers around her home. Dkt.
no. 1, 9191 5-9. A man had fled police and entered her home, and
the police wanted to search inside for him. Id. Plaintiff says
that when she asked the police why they wanted her consent to
search her home, the "officers became upset." Id. ¶ 10.
Plaintiff ultimately consented to the search on the condition
that the police first allow her to remove her children from the
home. Id. ¶ 11. Plaintiff says that after police searched her
home and arrested the fugitive, Defendant Douberly had her
arrested, without probable cause and for malicious purposes, for
obstructing or hindering law enforcement officers. Id. ¶ 12.
Plaintiff claims the arrest violated her constitutional rights,
"including but not limited to the Fourth, Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution." Id.
91 13.
Plaintiff, who is represented by counsel, filed her first
complaint against Defendant on April 22, 2013, just a few days
before Georgia's two-year statute of limitations for personal
injury claims would expire. See Complaint (Dkt. no. 1), Cummings
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v. Douberly et al., 2:13-CV--59 (S.D. Ga. Apr. 22, 2013) 1 ; Ga.
Code Ann. § 9-3-33. On October 11, 2013, Defendant moved to
dismiss the complaint for failure to make timely service. See
Def.'s Not. to Dismiss (Dkt. no. 7), Cummings v. Douberly et
al., 2:13-CV-59 (S.D. Ga. Oct. 11, 2013). This Court granted
Defendant's motion to dismiss the first complaint on April 7,
2014, because Plaintiff failed to show proof that she had
effectuated service on Defendant even after being given extra
time to do so. See Order Granting Def.'s Mot. to Dismiss (Dkt.
no. 14), Cummings v. Douberly et al., 2:13-CV-59 (S.D. Ga. Apr.
7, 2014) ("Cummings I Order")
Plaintiff filed her Renewed Complaint against Defendant in
the present action on October 6, 2014, one day within Georgia's
six-month window for recommencing discontinued or dismissed
cases, but more than three years after the right of action
accrued. See Dkt. no. 1; Ga. Code Ann. § 9-2-61(a); § 9-3-33.
Plaintiff has provided a copy of the Summons on Defendant, which
indicates service on December 5, 2013—some two years, seven
months, and eight days after the alleged constitutional
violations were committed and 106 days after Plaintiff was
afforded a 30-day extension by the Magistrate Judge to
effectuate service on Defendant. See Dkt. no. 8-1. Thus, the
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This Court takes judicial notice of the public records—such as Plaintiff's
complaint and this Court's own Orders—pertaining to Plaintiff's prior action,
Cummings v. Douberly et al., 2:13-CV-59 (S.D. Ga. Feb. 11, 2015).
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copy of the Summons shows that Plaintiff served Defendant in the
prior action after Defendant filed his motion to dismiss for
untimely service in October 2013, but before the Court granted
that motion in April 2014. For some unexplained reason,
Plaintiff never presented this Court the summons in the prior
action, even when faced with a motion to dismiss due to lack of
service.
Defendant has filed a Motion to Dismiss the Renewed
Complaint, arguing that this suit is barred by the statute of
limitations and cannot be saved by Georgia's tolling provision
for renewal actions. Dkt. no. 5. Because Plaintiff, as the
nonmovant, filed an extraneous document in her opposition to
Defendant's Motion to Dismiss purporting to show that Defendant
was eventually served, the Court converted Defendant's Motion to
Dismiss into a Motion for Summary Judgment pursuant to Federal
Rule of Civil Procedure 12(d). See Dkt. no. 12. The Court
allowed the parties ten days to supplement the record. Id.
Defendant promptly responded with additional argument. Dkt.
no. 13. Plaintiff filed a late response, but did not otherwise
attempt to introduce new evidence for the Court's consideration.
Dkt. no. 14. Defendant's Motion to Dismiss is thus ripe for
adjudication as a Motion for Summary Judgment.
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LEGAL STANDARD
When considering a motion for summary judgment the court
"shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
The dispute in this case turns solely on the interpretation of
Georgia's renewal statute and its resultant case law.
DISCUSSION
Under Georgia's renewal statute,
When any case has been commenced in either a state or
federal court within the applicable statute of
limitations and the plaintiff discontinues or
dismisses the same, it may be recommenced in a court
of this state or in a federal court either within the
original applicable period of limitations or within
six months after the discontinuance or dismissal,
whichever is later
Ga. Code Ann. § 9-2-61(a). "The privilege of dismissal and
renewal does not apply to cases decided on their merits or to
void cases." Tate v. Coastal Utils., Inc., 545 S.E.2d 124, 126
(Ga. Ct. App. 2001). An action is "void" under one of two
circumstances: (1) if service is never perfected, and (2) if
there has been a judicial determination that dismissal is
authorized and such an order has been entered. See id. "However,
unless and until the trial court enters an order dismissing a
valid action, it is merely voidable and not void." Id. (quoting
Hobbs v. Arthur, 444 S.E.2d 322, 323 (Ga. 1994)).
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The central issue in this case is whether Plaintiff's prior
action against Defendant was void. Plaintiff argues that even
though her prior action was dismissed for failure to perfect
service, Defendant was nevertheless served. According to
Plaintiff, "[a]y delay in service in the prior action is
essentially irrelevant in this action." Dkt. no. 8, P. 2 (citing
Hobbs v. Arthur, 444 S.E.2d 322 (Ga. 1994)).
The circumstances in this case are distinguishable from
Hobbs. In Hobbs, the Georgia Supreme Court held that an action
was voidable, but not void, where (1) the plaintiff had served
the defendant after the service period in the original action;
(2) the plaintiff then voluntarily dismissed his complaint; and
(3) the dismissal came before the trial court ruled on the
defendant's motion for summary judgment. Hobbs, 444 S.E.2d at
323-24. But here, Plaintiff did not voluntarily dismiss her
prior action before the Court granted Defendant's motion to
dismiss. See Cummings I Order. Because the Court entered an
Order dismissing the otherwise valid action, Plaintiff's initial
suit was void and cannot be renewed under Georgia's renewal
statute. See Hobbs, 444 S.E.2d at 323 ("A suit is also void and
incapable of renewal under OCGA § 9-2-61(a) if there has been a
judicial determination that dismissal is authorized. However,
unless and until the trial court enters an order dismissing a
valid action, it is merely voidable and not void.")
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In fact, as opposed to Hobbs, this case is on all fours
with Tate. In Tate, the plaintiffs brought suit against the
defendant trucking company and its driver in federal district
court just days within the statute of limitations for their
personal injury claims arising from a multi-vehicle accident.
Tate, 545 S.E.2d at 125. The district court ordered plaintiffs
to provide proof that the defendants had been served within the
time limits of Federal Rule of Civil Procedure 4(m). Id. Later,
the district court dismissed the defendants from the litigation,
having found that plaintiffs "failed to provide the required
proof of service." Id. However, plaintiffs had actually
effectuated service three days before the court issued its
order. Id. In light of this fact, the district court issued
another order reaffirming that the plaintiffs had "failed to
show good cause for their failure to serve defendants within the
120 day service period," and also finding that the plaintiffs
"failed to diligently serve defendants [. . .] after the
expiration of the statute of limitations as required under
Georgia law," and were thus "guilty of laches because they have
indulged in unreasonable delays without excuse." Id. In
concluding that the claims against the defendants should remain
dismissed, the district court nevertheless granted the
plaintiffs' alternative motion to dismiss the action without
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prejudice for the express purpose of renewing the action
pursuant to Georgia's renewal statute. Id. at 125-26.
Upon renewal, the Georgia Superior Court determined, and
the Court of Appeals affirmed, that the initial suit was void
because the prior action was not commenced within the applicable
statute of limitation "since service had not been timely
perfected." Id. at 126-27. Nor was it "dismissed voluntarily at
the plaintiff's behest." Id. There had also been a judicial
determination that dismissal was authorized. Id. at 126-127.
Thus, even upon a dismissal without prejudice for the stated
purpose of allowing plaintiffs to renew their action under
Georgia's renewal statute, a case cannot be renewed, under any
circumstances, if it is void.
The prior action in this case was void. Plaintiff failed to
show that she ever served Defendant in the prior action, and her
case was dismissed accordingly. It does not matter that
Plaintiff actually served Defendant before the Court dismissed
the case for two reasons. First, just as in Tate, that service
was still 76 days too late, and was thus untimely. 2 Second, also
echoing Tate, Plaintiff failed to show good cause for her delay
2
Per Rule 4(m), plaintiff had 120 days after the complaint in the original
action was filed on April 22, 2013, to serve Defendant. The Magistrate Judge
granted her request for an extension, affording her an additional 30 days to
perfect service. See Cummings I Order, p. 1. The summons was not served until
December 5, 2015, 226 days after the complaint was filed, or 76 days after
service would have been timely.
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in effectuating service or that she had exercised due diligence
in doing so.
It is also of no consequence that the prior action was
dismissed without prejudice. The district court in Tate
dismissed the plaintiffs' case without prejudice expressly so
they could take advantage of Georgia's renewal statute—but the
Georgia Superior and Appellate Courts still refused the
plaintiffs their mulligan. Plaintiff in this case lacks even the
prior Court's blessing for renewal. As the Court noted in its
prior Order, "given the timing of Plaintiff's actions, or, more
precisely, inactions, a dismissal without prejudice may be
tantamount to a dismissal with prejudice." Cummings I Order,
p. 4 n.2. Indeed it was.
Thus, Plaintiff's prior action against Defendant was void
and cannot be renewed under the renewal statute. Her instant
complaint was filed beyond the two-year statute of limitations
period governing 42 U.S.C. § 1983 claims. Therefore, Defendant's
Motion for Summary Judgment (Dkt. no. 5) must be GRANTED. The
Clerk of Court is directed to enter the appropriate judgment.
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SO ORDERED,
this 21ST day of July, 2015.
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LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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