The Court of Appeals of Georgia held that a three-month delay in serving a defendant after filing a complaint on the day the statute of limitation ran does not relate back to the filing of the complaint as the plaintiff failed to exercise reasonable diligence. UHS of Peachford v. Brady, A21A0819, 2021 WL 4471048 (Ga. Ct. App. Sept. 30, 2021).
A complaint must be filed within the applicable limitation period, however, Georgia law permits a complaint to be served beyond that time, so long as “the timely filing of the pleading is followed by timely service perfected as authorized by law, the subsequent service will relate back to the initial filing even though the statute of limitation has run in the interim.” (Citation and punctuation omitted.) Griffin v. Trinidad, 357 Ga. App. 492, 494 (1), 850 S.E.2d 878 (2020).
Further, O.C.G.A. § 9-11-4 (c) provides, in relevant part:
When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.
If a complaint is filed near the expiration of the statute of limitation and service is made after the statute expires and after the five-day safe harbor provision contained within OCGA § 9-11-4 (c) the relation back of the service to the date of filing is dependent upon the diligence exercised by the plaintiff in perfecting service. McFadden v. Brigham, 358 Ga. App. 400, 402, 855 S.E.2d 409 (2021). The plaintiff has the burden of showing that due diligence was exercised. Id.
The plaintiff must "provide specific dates or details to show diligence and cannot rely on conclusory statements." Parker v. Silviano, 284 Ga. App. 278, 280 (1), 643 S.E.2d 819 (2007); See also Van Omen v. Lopresti, 357 Ga. App. 9, 15-16 (3), 849 S.E.2d 758 (2020). Lastly, the diligence is required to be reasonable. Id.
The Court stated that Brady's three month delay lacked any diligence. Specifically, Brady served other defendants within one (1) month of filing the complaint but did not event attempt service on Peachford. Further, Brady filed several motions in the very litigation during that time period. Ultimately, the Court of Appeals of Georgia reversed the trial court's denial of Peachford's motion to dismiss.