What is “Laches,” and When is a Defendant Served Too Late?
A Georgia motorist and her husband brought suit against another motorist asserting claims for personal injury and loss of consortium after an auto accident. Citing O.C.G.A § 33-7-11, the plaintiffs also named their uninsured/underinsured motorist carrier, State Farm, as a party. State Farm moved to dismiss the complaint based on the plaintiffs’ failure to exercise due diligence in perfecting timely service, and the trial court granted the motion following a hearing. The plaintiffs appealed.
Background
The traffic accident happened on March 22, 2022, and the plaintiffs filed suit on March 1, 2024, about three weeks before the two-year statute of limitation applicable to their personal injury claim expired. They hired a private process server to serve the other driver, and service was perfected on him on March 3, 2024. The plaintiffs mailed, via the United States Postal Service, the service packet for State Farm to the sheriff’s department on March 1, 2024, and the sheriff received the packet on March 21, 2024—a day before the statute of limitation expired.
State Farm was served by a deputy sheriff on March 28, 2024, and it filed a motion to dismiss the complaint on April 4, 2024. The plaintiffs’ counsel received the return of service from the sheriff’s department on May 1, 2024. Under these facts, the trial court concluded that the plaintiffs were guilty of laches for failing to exercise due diligence in perfecting service in a timely manner and dismissed the complaint.
Laches is a doctrine whereby courts can deny relief to a claimant with an otherwise valid claim when the party bringing the claim unreasonably delayed asserting the claim to the detriment of the other party.
The Court of Appeals
Judge John A. Pipkin, III wrote that “with rare exception, the rule in this State is that a complaint must be filed within the applicable statute of limitation; in an action for injuries, that means the complaint must be filed within two years.”
In this case, the accident occurred on March 22, 2022, and the complaint was filed on March 1, 2024, within the limitations period. But Judge Pipkin cautioned that the mere filing of a complaint doesn’t commence a suit. Instead the plaintiff must file the complaint and effect proper timely service as required by law.
Under Georgia law, the general rule is that a plaintiff making a claim against a UM carrier must serve process on the UM carrier within the same statute of limitation applicable to the uninsured motorist. Nevertheless, Georgia law permits a complaint to be served beyond the limitation period: if the timely filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and date of service, the service will relate back to the time of filing so as to avoid the limitation period. The judge explained that the Civil Practice Act has what’s known as a “safe harbor provision” that provides for the relation back of service if “the person making such service shall make the service within five days from the time of receiving the summons and complaint.” However, according to O.C.G.A § 9-11-4(c), service isn’t automatically invalidated even when made outside the statute of limitation and outside the safe harbor provision. According to a 2021 decision, under these circumstances,
the relation back of the service to the date of filing is dependent upon the diligence exercised by the plaintiff in perfecting service. The plaintiff has the burden of showing that due diligence was exercised. The determination of whether the plaintiff is guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.
Judge Pipkin also explained that the law is clear about how diligence must be demonstrated. The burden rests on the plaintiff to ensure diligent service, and she must provide specific dates or details to show diligence. She can’t rely on conclusory statements. A trial court determines whether the plaintiff was guilty of laches by looking at all the facts involved.
In this case, a paralegal at the plaintiffs’ law firm responsible for mailing the service packet submitted an affidavit in response to the motion to dismiss averring that “at the time” she sent out the service package, she “had heard no reports or news of the post office delivery being delayed.” Further, she said she tried to contact the sheriff’s office regarding the status of service on March 21, 2024 (the day before the statute of limitation ran) but she was “not able to make contact and did not receive any follow up communication back from the sheriff’s office until she received the return of service in the mail on May 1, 2024.”
The plaintiffs argued that these facts didn’t support a finding of laches or lack of due diligence. They claimed that the “mere passage of time is insufficient to support dismissal” and that the focus in determining due diligence should be on the time period following a failed service attempt or the running of the statute of limitation. They also argued that they were reasonably entitled to rely on the Post Office to deliver the service packet to sheriff, to rely on the sheriff to perfect timely service, and that they did all they were required to do by mailing the packet to the sheriff with the correct service address.
Judge Pipkin and the Court said that the plaintiffs were correct that the mere passage of time isn’t dispositive on the question of due diligence. Just as service made long after the statute of limitation has expired doesn’t necessarily show a lack of diligence, service that is made fairly close to the limitations period and just outside the five-day safe harbor period, as it was here, doesn’t automatically demonstrate diligence. Rather, it depends on the circumstances of each case. That said, the judge said that the plaintiffs were incorrect that the period prior to the expiration of the limitation period was irrelevant to the question of diligence. The Court previously recognized that the failure to take the necessary steps prior to the running of the statute of limitation to enable timely service — such as providing a correct address — can support a finding of lack of diligence when service is delayed.
Next, the Court addressed the plaintiffs’ reliance argument, whether they could reasonably rely on the Post Office in delivering the service papers to sheriff and then to rely on the sheriff to effectuate service within five days of receipt of the service packet. However, prior cases were premised on the fact that Georgia statutes place certain duties on the clerk and the sheriff in regards to service and, whether stated explicitly or not, that’s why a plaintiff is entitled to rely on them to carry out their duties. In other words, it’s the fulfillment of this statutory duty upon which a plaintiff is entitled to reasonably rely.
The trial court, pointing to the fact that the plaintiffs merely mailed the service packet to the sheriff, concluded that the plaintiffs were guilty of laches because they took no steps to ensure that the sheriff received the service packet in a timely manner. Further, the trial court noted that although the plaintiffs’ counsel—or the paralegal who mailed the packet—may not have been aware of delays in mail delivery at the time they mailed the packet, they became aware of such problems shortly after the packet was mailed.
Even so, the plaintiffs asserted that all they had to do was place the service packet in the mail with the proper service address for the sheriff to use in perfecting service. But in contrast to the sheriff or the trial court clerk, the Post Office has no specific statutory duty under Georgia law regarding delivery of the service packet. And not only does the Post Office not have any specific statutory duty with regards to the service of a complaint, the postal employees who process and deliver the service packet may not be aware of the contents of the service packet, much less the time constraints at issue. Here, the plaintiffs — or their counsel — merely placed the service packet in the mail and then, as the trial court found, “sat on their hands” for 20 days until they made one unsuccessful attempt — the day before the statute of limitation expired — to determine whether the sheriff’s department had received the packet.
The trial court also noted that, although the plaintiffs were aware that the statute of limitation had expired, they failed to pursue alternate means to deliver the packet to the sheriff when they were unable to verify that the USPS had delivered the packet. They didn’t make any follow-up inquiries to the sheriff during the six to seven weeks before they received the return of service, and they didn’t take any other steps, such as checking with the clerk’s office, to see if service had been made.
In short, the trial court determined that the plaintiffs’ actions — both before and after the statute expired — demonstrated laches in failing to exercise due diligence in perfecting service, and we observe no abuse of discretion in that determination. As a result, the trial court’s order dismissing the plaintiffs’ complaint was affirmed. Mote v. State Farm Mut. Auto. Ins. Co., 2025 Ga. App. LEXIS 187 (Ga. App. May 13, 2025).
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