When is Service of Process Sufficient in a Car Accident Case?
The plaintiffs filed a personal injury action against another motorist, alleging that they were injured in an automobile collision. They appealed from the order granting the defendant’s motion to dismiss for insufficiency of service of process. The plaintiffs contended that they perfected service. As such, the plaintiffs argued that the trial court erred by denying their motion for service by publication, and that they exercised the requisite diligence in attempting to serve the defendant.
Defendant filed a special appearance answer, raising the insufficiency of service of process as a defense.
The parties were involved in an automobile collision on December 21, 2022. The defendant entered a plea of nolo contendere for following too closely on February 16, 2023. The plaintiffs filed their action on October 24, 2024.
On October 28 and 29, 2024, the plaintiffs attempted to serve the defendant at the Buford, Georgia address listed for him in their complaint. No one answered the door either time. The process server made another attempt at that address a few days later. In the affidavit of non-service, the process server testified that the tenant, who’d resided there for four months, said that the defendant didn’t live there and that the tenant didn’t know him.
Next, the plaintiffs hired a private investigator to conduct a skip trace to identify the defendant’s address. A process server attempted to serve the defendant on November 18, 2024, at an address on Piedmont Avenue in Atlanta. The process server testified in an affidavit of non-service that the leasing manager informed him that the defendant didn’t live at that address.
Then, the plaintiffs hired another private investigator who conducted a skip trace and identified a different address in Buford, Georgia. A process server attempted to serve the defendant at that address, but no one answered the door. He tried again a week later, but, according to the affidavit of non-service, the resident said that the defendant, her former boyfriend, didn’t live there and that she had no information about his current address.
On January 27, 2025, the defendant filed a special appearance answer, raising the insufficiency of service of process as a defense. The statute of limitations ran on February 16, 2025, two years and a day after the defendant entered his plea of nolo contendere.
On February 21, 22, and 23, 2025, a process server tried to serve the defendant at the same Piedmont Avenue address in Atlanta where service had been attempted on November 18, 2024, and where the leasing manager had informed the process server that the defendant didn’t live. In the affidavit of non-service, the process server noted “no access to building.” The process server returned to that address on February 24th and left the summons, complaint, and discovery documents with a “leasing agent who refused to provide her name,” according to the affidavit of service. The record contained no evidence of any further attempts at personal service, and it contained no evidence that the defendant ever had been personally served.
On March 14, 2025, about six weeks after the defendant filed his special appearance answer, the plaintiffs filed a motion to allow service by publication on the grounds “that after diligent search, defendant cannot be found within the State of Georgia after the exercise of due diligence or that he conceals himself to avoid service.” The trial court denied that motion 10 days later, holding that the plaintiffs failed to show that the defendant had actual knowledge of the lawsuit nor that he was evading service by concealing himself.
The defendant then moved to dismiss the complaint, the trial court granted the motion, and the plaintiffs filed this appeal. The plaintiffs argued that the trial court erred in dismissing the complaint because they perfected service when the process server left the summons and complaint with a person of suitable age and discretion.
Did the plaintiffs perfect service when the process server left the summons and complaint with a person of suitable age and discretion.
Presiding Judge Christopher J. McFadden wrote that O.C.G.A. § 9-11-4(e)(7) states that service may be made “by leaving copies of the summons and complaint at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.”
The plaintiffs argued that the defendant was served when the process server left the complaint and summons with the defendant’s landlord, “who is obviously of suitable age and discretion” at the Piedmont Avenue address. As there was no evidence concerning a landlord, the plaintiffs apparently meant the “leasing agent who refused to provide her name” with whom the process server left the documents on February 24, 2025.
Assuming that location was the defendant’s residence (despite the leasing manager telling the process server in November 2024 that the defendant didn’t live at that address), the plaintiffs pointed to no evidence that the unidentified person with whom the process server left the documents “resid[ed] therein” as required for service under O.C.G.A. § 9-11-4(e)(7). The judge reasoned that in the absence of any evidence that service was made upon a resident of the defendant’s dwelling or usual place of abode, the court must conclude that service was improper.
Service by Publication
The plaintiffs argued that the trial court erred by denying their motion for service by publication. But the Court of Appeals found that they didn’t show reversible error. O.C.G.A. § 9-11-4(f)(1)(A) provides:
When the person on whom service is to be made … cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons. …
The plaintiffs argued that the trial court erred in denying their motion because the court didn’t consider whether they were entitled to service by publication under the ground that the defendant “cannot, after due diligence, be found within the state.” But Judge McFadden held that the plaintiffs misconstrued the trial court’s order. The trial court denied the motion for service by publication on the ground that under the facts of this case, such service wouldn’t be sufficient to acquire personal jurisdiction over the defendant.
In general, service by publication doesn’t confer personal jurisdiction over a defendant. If the defendant is a resident who’s actually present within the jurisdiction of the court, has actual knowledge of the suit, and willfully secrets himself to frustrate all reasonable efforts to effect personal service, then the service by publication affords sufficient due process and confers personal jurisdiction over the defendant, the judge wrote.
The trial court implicitly held that the plaintiffs couldn’t avail themselves of this exception to obtain personal jurisdiction over the defendant, and therefore service by publication was unavailable, because they didn’t offer facts to establish that the defendant had actual knowledge of this lawsuit, nor that he was evading service, by concealing himself, as required by O.C.G.A. § 9-11-4. As a consequence, the trial court denied the motion for service by publication.
Related to the trial court’s conclusion, the plaintiffs argued that they showed that the defendant was evading service. Their attorney’s affidavit filed in support of the motion for service by publication, however, simply said that efforts to locate the defendant had been unsuccessful, and a finding that a defendant was concealing himself to avoid service. But this requires more than evidence that the defendant simply can’t be located or has moved to a new location. Here, the plaintiffs failed to satisfy their burden of proving that the defendant willfully concealed himself to frustrate all reasonable attempts at personal service.
The plaintiffs argued that the trial court erred in finding that they failed to exercise the greatest possible diligence in attempting to serve the defendant. But the plaintiffs provided no explanation at all for the more-than-two-month gap between the unsuccessful service attempt on December 14, 2024, and the unsuccessful attempts in February 2025. Unexplained lapses in attempting service indicate a failure to pursue service in a reasonably diligent manner, the judge wrote.
Judge McFadden noted that the only attempts at personal service that the plaintiffs made once the greatest-possible-diligence standard was triggered were the four attempts in February 2025 to serve the defendant at the same Piedmont Avenue address in Atlanta where service had been attempted on November 18, 2024, when the leasing manager had informed the process server that the defendant did not live at that address.
There was nothing in the record explaining why the plaintiffs attempted service at this same address when they had been informed months before that the defendant did not live there. A plaintiff must provide specific dates or details to show diligence and cannot rely on conclusory statements, Judge McFadden wrote.
And the February 2025 service attempts were the last attempts at personal service. The record contained no evidence of any further attempts at personal service—not even in the almost two-month period between the defendant’s filing of the motion to dismiss and the trial court’s order granting the motion. Nor did the record contain any explanation for this gap.
The plaintiffs’ assertion that they hired skip tracers doesn’t in itself show diligence, either. The simple assertion that they used skip tracers is insufficient to show due diligence without providing specific details or dates to show diligence. Finally, the record contained no evidence that the defendant had been personally served.
Under these facts, Judge McFadden and the Court of Appeals panel couldn’t say that the trial court abused his discretion in determining that the plaintiffs failed to exercise the required diligence to serve the defendant. The judgment was affirmed. Hall v. Mungai, 2026 Ga. App. LEXIS 298, 2026 LX 356587 (Ga. App. June 11, 2026).
Contact Us
Having a knowledgeable Atlanta personal injury lawyer who has experience handling cases motor vehicle accidents does matter. Whoever you hire as your lawyer needs to know the law and how to apply the law—especially complying with court rules and procedures like service of process. If you have questions about your case, we invite you to call us at (404) JUSTICE or email us by following this link: https://www.tobininjurylaw.com/contact-us/.