The Georgia Civil Practice Act allows for service of an entity via its registered agent. O.C.G.A. § 9-11-4 (e) (1). However, there are times when alternative service methods are needed because the registered agent cannot be found at the registered office. Georgia law provides for several means to do so. The Court of Appeals case Williams v. Abebe Sandy Ventures, LLC, 2023 WL 2201636, A22A1200 (Ga. Ct. App. Feb. 24, 2023) provides a practice tip for litigators that even under § 9-11-4, which as discussed below does not have a diligence standard, some standard of diligence must be performed before serving the secretary of state where the registered office is different from a second business address.
First, the Georgia “Civil Practice Act [of which OCGA § 9-11-4 (e) (1) is a part] and the Georgia Business Corporation Code [of which OCGA § 14-2-504 (b) is a part] provide alternative methods for obtaining substituted service of process in lieu of personal service on corporate officers or agents.” Daly's Driving School v. Scott, 238 Ga. App. 443, 445, 519 S.E.2d 1 (1999); See Ticor Constr. Co. v. Brown, 255 Ga. 547, 549 (3), 340 S.E.2d 923 (1986) (per curiam) (reiterating that “the methods of service set out in the Civil Practice Act, OCGA § 9-11-1 et seq., and the Georgia Business Corporation Code, OCGA § 14-2-1 et seq., are discrete methods of service upon corporations,” and that “a plaintiff may serve a defendant corporation by following the directions of the Civil Practice Act or by following the directions of the Georgia Business Corporation Code”) (emphasis supplied), quoting Bricks v. Walker Showcase, 255 Ga. 122, 123-124, 336 S.E.2d 37 (1985); O'Neal Constr. Co. v. Lexington Developers, 240 Ga. 376, 378, 240 S.E.2d 856 (1977) (discerning that “[the substitute service of process] provision in the Corporation Code is designed to be cumulative with the [Civil Practice Act]”). Indeed, the General Assembly has been clear. O.C.G.A. § 9-11-4 includes the instructive provision that:
The methods of service provided in this Code section are cumulative and may be utilized with, after, or independently of other methods of service. Whenever a statute provides for another method of service, service may be made under the circumstances and in the manner prescribed by the statute or under any other methods prescribed in this Code section.
Appellee argued at the trial court level that reading §§ 9-11-4 and 14-11-209 together required that substitute service on the Secretary of State cannot be made until a diligent effort is made to serve the other parties allowed to be served under O.C.G.A. § 9-11-4 (e) (1). Id. at *1. Further, Appellee pointed out that there was no indication that any investigative efforts were undertaken and only one attempt was made at the registered office, therefore, there could be no diligence sufficient for service. Id. The trial court agreed with Appellee's tandem reading of the statutes, which led to the appeal. Id. at *2.
Beginning with § 9-11-4 (e) (1), the Court of Appeals noted that the statute contained service via the secretary of state under an "any reason" standard. Specifically, that statute states:
Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows: If the action is against a corporation incorporated or domesticated under the laws of this state or a foreign corporation authorized to transact business in this state, to the president or other officer of such corporation or foreign corporation, a managing agent thereof, or a registered agent thereof, provided that when for any reason service cannot be had in such manner, the Secretary of State shall be an agent of such corporation or foreign corporation upon whom any process, notice, or demand may be served. (emphasis in original).
In addition to O.C.G.A. § 9-11-4 (e) (1), O.C.G.A. § 14-11-209 (f) provides:
Whenever a limited liability company shall fail to appoint or maintain a registered agent in this state or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such limited liability company upon whom any process, notice, or demand may be served.... (emphasis added).
Lastly, there is a third statute that allows for alterative service. O.C.G.A. § 14-2-504 states:
If a corporation has no registered agent or the agent cannot with reasonable diligence be served, the corporation may be served by registered or certified mail or statutory overnight delivery, return receipt requested, addressed to the secretary of the corporation at its principal office.” (emphasis added).
The Court of Appeals noted that § 9-11-4 (e) (1) neither contains a due diligence nor a reasonable diligence standard. Further, the Court of Appeals rejected support offered under Brock Built City Neighborhoods, LLC v. Century Fire Protection, 295 Ga. App. 205, 671 S.E.2d 240 (2008), and Stone Exchange v. Surface Tech. Corp., 269 Ga. App. 770, 773, 605 S.E.2d 404 (2004). Those two cases both rejected service on the secretary of state under § 9-11-4 (e) (1), however, as the Court of Appeals distinguished, both plaintiffs in those cases "had actual knowledge of the defendants' current business addresses, yet unsuccessfully attempted to serve the defendants through their registered agent at the different address listed for the agents at the secretary of states office." Abebe Sandy Ventures, LLC, 2023 WL 2201636 at * 4. Neither Plaintiff ever attempting service at the actual business location address. Id. In the Adebe Sandy Ventures amtter, the Court of Appeals pointed out that there was no second address. Id. Therefore, no further attempt could have been had, thus rendering the "for any reason" language in § 9-11-4 (e) (1) to be applicable to this service situation. Thus, the Court of Appeals reversed and remanded the matter.