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Any Advice Going Forward?

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Sued in April 2009 by JDC

Default Judgment awarded as we did not know about the suit and were never served.

September 2010, plaintiff uses default judgment to garnish checking account in a different county court.

We immediately file a motion to set aside Judgment in the original lawsuit, and also file an answer.

October 2010 - we successfully traverse the garnishment, as plaintiff fails to follow Georgia Law in serving notice of garnishment. Garnishment is released.

November 2010 - Plaintiff files a response to our motion to set aside, moves the court to rule against our motion.

We file a RULE NISI requesting a hearing. Court grants the hearing and schedules for late January 2011.

January 24, 2011 - We present evidence that we were out of state on the date that service certificate indicates we were served. Court rules that service was fraudulent and motion to set aside judgment is granted.

February 25, 2011 - We file motion to dismiss with prejudice, citing that defendant has not been served, court lacks jurisdiction.

March 15, 2011 - Plaintiff files an answer and requests an additional 60 days continuance in order to "perfect service".

An attorney friend has told me that in Georgia, a plaintiff generally has 39 days (I don't know why it's 39) to serve the defendant. As of March 15, Plaintiff was on day 50 since the original judgment was set aside.

Any advice going forward?

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Now comes the Defendant, ****** ******, Pro Se, and responds to the Plaintiff’s request for continuance of the case for the purpose of perfecting service, as follows:

1. Plaintiff was instructed (advised) to perfect service during Court on January 24, 2011.

2. The statute of limitation expired on Plaitiff’s claim in August of 2010.

3. When service is accomplished after the statute of limitation has expired, the timely filing of the complaint tolls the statute only upon a showing that the plaintiff acted reasonably and diligently in effecting proper service as quickly as possible. Patterson v. Johnson, 226 Ga. App. 396, 397 (486 SE2d 660) (1997).

4. The plaintiff also bears the burden of showing lack of fault. Sykes v. Springer, 220 Ga. App. 388, 389 (1) (469 SE2d 472) (1996).

5. Plaintiff is now 56 days from our last hearing and has not perfected service. Plaintiff’s Response to Defendant’s Motion to Dismiss, and request for continuance was filed 50 days from the previous hearing date. Plaintiff’s request did not address any hindrance that would have affected timely service. Robinson v. Green , 491 S.E.2d 95, 97 (Ga. App.1997) (perfecting service 40 days after filing of complaint constitutes failure to exercise due diligence); Cantin v. Justice , 480 S.E.2d 250, 251-52 (Ga. App. 1997) (perfecting service 19 days after filing of complaint constitutes failure to exercise due diligence).

6. Defendant raised the issue of fraudulent service in her Motion to Set Aside Default Judgment in September of 2010. Defendant holds that Plaintiff’s responsibility to account for the failure of service begins at that time. Pryor v. Douglas Shopper -- The Coffee County News Et Al., 236 Ga. App. 854, 514 S.E.2d 59 (1999). “When a defendant raises the issue of defective service, a plaintiff is from that point forward, obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.” Ingraham v. Marr, 246 Ga. App. 445, 447 (2) (540 S.E.2d 652) (2000).

7. Plaintiff is guilty of Laches. "If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation." Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673, 676 (307 SE2d 134).

8. Plaintiff has taken no action to perfect service. "If a plaintiff has taken no action to perfect service, then a petition to permit belated service should be denied as a matter of law. Gulf Oil Corp. v. Sims, 112 Ga. App. 68, 69 (143 SE2d 776) (1965).

Whereas the statute of limitation on Plaintiff’s claim has expired; and whereas Plaintiff has failed to act diligently and reasonably, nor with the greatest possible diligence in effecting proper service, and has not been in any way hindered from doing so; and whereas, the Defendant has not been served; the Defendant begs the court to take nothing of Plaintiff’s complaint by virtue and dismisses the complaint with prejudice.

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