Troy Aucoin v. Carolyn Dell Connell , 209 F. App'x 891 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 5, 2006
No. 06-12139 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00529-CV-TWT-1
TROY AUCOIN,
Plaintiff-Appellant,
versus
CAROLYN DELL CONNELL,
WILLIS CONNELL,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 5, 2006)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Troy Aucoin and Carolyn Connell were involved in a motor vehicle
accident on January 19, 2003. On January 19, 2005, Aucoin filed suit against
Connell and her father, Willis Connell, in Georgia state court, alleging that Ms.
Connell was negligent and that Mr. Connell was liable under Georgia’s family
purpose and negligent entrustment doctrines. The Connells removed the case to
federal court. They filed their answer on February 25, 2005. The answer, among
other things, alleged that Ms. Connell had not been properly served. Aucoin next
attempted to serve her on July 7, 2005. Ms. Connell claims she still has not been
properly served, while Aucoin claims she was personally served on November 10,
2005.
The Connells moved for summary judgment on November 2, 2005. Ms.
Connell argued that the suit against her was time-barred because Aucoin had not
been sufficiently diligent in serving her after the statute of limitations ran out. Mr.
Connell argued that the family purpose and negligent entrustment doctrines did
not apply to him, and that Aucoin had not raised a genuine issue of material fact as
to those issues.
The district court granted summary judgment to the Connells. It held that
Aucoin had not been sufficiently diligent in serving process on Ms. Connell. It
also held that the family purpose and negligent entrustment doctrines did not apply
to Mr. Connell.
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On appeal, Aucoin challenges only the district court’s holdings as to service
of process and the application of the family purpose doctrine. We apply de novo
review to a district court’s grant of summary judgment. Skrtich v. Thornton, 280
F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is appropriate only if the
evidence before the court indicates that “there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). The evidence must be viewed in the light most favorable to the non-
moving party. Augusta Iron & Steel Works, Inc. v. Emplrs. Ins. of Wassau, 835
F.2d 855, 856 (11th Cir. 1988). Applying this standard, we affirm the district
court with respect to both Mr. Connell and Ms. Connell.
I.
The district court held that Aucoin was not sufficiently diligent in serving
Ms. Connell. Aucoin argues that the court erred because the federal rules and not
the state rules governed service after the case was removed to federal court.
Aucoin has, however, misapprehended the import of his failure to diligently
perfect service. In a suit where federal jurisdiction is founded on diversity of
citizenship, the statute of limitations is governed by state law under the doctrine of
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79, 58 S. Ct. 817, 823 (1938). The
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applicable statute of limitations must come from state law. Guaranty Trust Co. v.
York, 326 U.S. 99, 110, 65 S. Ct. 1464, 1470 (1945). And the law governing
when the suit was commenced for purposes of the statute of limitations is also
governed by state law. Walker v. Armco Steel Corp., 446 U.S. 740, 748, 100 S.
Ct. 1978, 1984 (1980); Ragan v. Merchants Transfer & Warehouse Co., 337 U.S.
530, 69 S. Ct. 1233 (1949).
This Court defined the rules applicable to diversity cases arising under
Georgia law in Cambridge Mut. Fire Ins. Co. v. City of Claxton, 720 F.2d 1230(11th Cir. 1983). The Court acknowledged that Fed. R. Civ. P. 4 governs service
of process in diversity cases. Id. at 1232 n.2. See also Hanna v. Plumer, 380 U.S.
460, 85 S. Ct. 1136 (1965). But the Court also held that if the statute of
limitations runs out between the filing of the complaint and service of process, the
effective commencement date of the suit depends on when service of process is
perfected. If the plaintiff either perfects service within five days of filing or
“diligently attempt[s] to perfect service,” then the suit is deemed commenced on
the date the complaint was filed. Cambridge Mutual, 720 F.2d at 1233. But if the
plaintiff does not diligently attempt to perfect service, the commencement date
does not relate back to the filing of suit and the statute of limitations bars the suit.
Id.4
Georgia law contains one further wrinkle. When the plaintiff has notice that
service was potentially defective, the time for attempting to effect service is even
more constrained. For the commencement date to relate back, the plaintiff must
use the “greatest possible diligence” in attempting to perfect service. Wade v.
Whelan, 504 S.E.2d 456, 459 (Ga. Ct. App. 1998). A defendant’s answer denying
service constitutes notice for the purpose of this rule. Id. Further, if a plaintiff
uses reasonable diligence in attempting to perfect service prior to receiving notice,
but fails to perfect service, the plaintiff must use the greatest possible diligence to
attempt to perfect service after receiving notice of potentially improper service, or
else the suit is time-barred. Patterson v. Johnson, 486 S.E.2d 660, 661 (Ga. Ct.
App. 1997).
Finally, in Cambridge Mutual this Court set out the standard of review for
district court decisions finding a lack of diligence in perfecting service. We
review such determinations for abuse of discretion. Cambridge Mutual, 720 F.2d
at 1233.
These standards are easily applied to Aucoin’s case against Ms. Connell.
Georgia has a two-year statute of limitations for personal injury actions. Ga. Code
Ann. § 9-3-33. This statute expired two years after the automobile accident, on
January 20, 2005. Aucoin filed his action on January 19, 2005. Aucoin then
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received notice of potentially improper service when Ms. Connell answered on
February 25, 2005. His suit is thus time-barred unless he actually perfected
service before February 25, 2005 or unless he used the greatest possible diligence
to perfect service after February 25.
Aucoin first claims that he has raised a genuine issue of fact about whether
he properly served Ms. Connell before February 25. The case was in state court
before then, so state service of process rules governed. Aucoin attempted to use
Georgia’s long arm statute to serve Ms. Connell.1 Under Georgia law, a plaintiff
may serve process on a person residing outside the state in the same way that
someone is served inside the state, so long as the service outside the state is made
by a person authorized to do so by the laws of that state. Ga. Code Ann. § 9-10-94(2006). This means that Aucoin had to serve Ms. Connell at her “dwelling house
or usual place of abode.” Ga. Code Ann. § 9-11-4(e)(7).
Aucoin attempted to serve Ms. Connell by serving Mr. Connell at his home
on January 27, 2005. Mr. Connell admits that this service was effective as to him
and that the suit against him is not time-barred. This service was not effective,
however, as to Ms. Connell because she had moved away from her parents’ home
1
Aucoin did not attempt to serve Ms. Connell by using Georgia’s Non-Resident Motorist
Act, Ga. Code Ann. § 40-12-1.
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several months before, and her father’s house was therefore not her dwelling
house or usual place of abode.
Aucoin argues that the district court overlooked evidence that Ms. Connell
still lived with her parents on January 27. But we find that the district court
correctly applied Georgia’s burden-shifting framework to determine that service
was not effective. Aucoin’s only evidence that Ms. Connell still lived with her
parents is the sheriff’s return of service. In Georgia the sheriff’s return of service
provides prima facie proof of proper service. Yelle v. U.S. Suburban Press, Inc.,
453 S.E.2d 108, 110 (Ga. Ct. App. 1995). But the defendant may rebut this prima
facie case by presenting “evidence which is not only clear and convincing, but the
strongest of which the nature of the case will admit.” Id.Ms. Connell provided that evidence here. She testified that she moved away
from her parents’ home to attend college. She also showed that she changed the
address on her driver’s license and that she received mail, including her W-2 tax
statements, at that address. This was sufficient evidence to rebut Aucoin’s prima
facie case. See McRae v. White, 604 S.E.2d 291, 293 (Ga. Ct. App. 2004). The
burden then shifted back to Aucoin to show that service was proper. Webb v.
Tatum, 413 S.E.2d 263, 264 (Ga. Ct. App. 1991). Aucoin submitted no evidence
apart from the sheriff’s return of service, and thus did not carry his burden. The
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January 27, 2005 service was therefore improper. Aucoin does not contend that he
attempted to perfect service at any time between January 27 and February 25.
On February 25, Ms. Connell answered, denying service. Aucoin then had
to use the greatest possible diligence to perfect service in order to have the
commencement date relate back to the date the complaint was filed. See Wade,
supra. At that point, because the case was in federal court, service was governed
by Fed. R. Civ. P. 4. Aucoin admits that he did not attempt to re-serve Ms.
Connell until July 7, 2005. The district court held that this delay of over four
months did not constitute the greatest possible diligence. We review that finding
for abuse of discretion. See Cambridge Mut. Fire Ins. Co., 720 F.2d at 1233.
We find that the district court did not abuse its discretion. Aucoin’s delay
fell well outside the boundaries set by previous decisions by this Court and the
Georgia courts. See, e.g., Morris v. Haren, 52 F.3d 947, 949 (11th Cir. 1995) (no
abuse of discretion to find that plaintiff failed to satisfy the less stringent diligence
standard where delay of three months between filing of complaint and perfection
of service); Wade, 504 S.E.2d at 460 (no abuse of discretion to find that plaintiff
did not use greatest possible diligence where delays of 47, 28, 21, and 25 days);
Patterson v. Johnson, 486 S.E.2d 660, 662 (Ga. Ct. App. 1997) (no abuse of
discretion where delay of 44 days after statute of limitations expired and four
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months after became aware of defendant’s true address); Ingraham v. Marr, 540
S.E.2d 652, 655 (Ga. Ct. App. 2000) (two months between notice of defect and
attempt to serve did not constitute greatest possible diligence).
Thus, even if Aucoin did succeed in serving Ms. Connell on November 10,
2005, the commencement date of the suit did not relate back to the filing of the
complaint because he did not use the greatest possible diligence to perfect service.
Since the statute of limitations had run months before, this means his suit was
time-barred and the district court correctly granted summary judgment to Ms.
Connell.
Aucoin nevertheless suggests that under Georgia law he should be allowed
to dismiss and refile this suit within six months, without running afoul of the
statute of limitations. This argument is without merit. It is true that under Ga.
Code. Ann. § 9-2-61(a), “When any case has been commenced in either a state or
federal court within the applicable statute of limitations and the plaintiff
discontinues or dismisses the same, it may be recommenced in a court of this state
or in a federal court within the original applicable period of limitations or within
six months after the discontinuance or dismissal, whichever is later.” The Georgia
courts have made clear, however, that when a trial court grants summary judgment
on the basis of a failure to diligently perfect service, the action is void, not
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voidable, and it cannot be revived by the Georgia renewal statute. King v. Wal-
Mart Stores, 550 S.E.2d 673, 674 (Ga. Ct. App. 2001); Black v. Knight, 499
S.E.2d 69, 70 (Ga. Ct. App. 1998) (interpreting Hobbs v. Arthur, 444 S.E.2d 322(Ga. 1994)). Here the district court granted summary judgment on the basis of
Aucoin’s failure to diligently perfect service, so the Georgia renewal statute does
not apply and the suit remains time-barred. We therefore affirm the district court’s
grant of summary judgment to Ms. Connell.
II.
The district court also granted summary judgment to Mr. Connell, holding
that the family purpose and negligent entrustment doctrines did not apply to hold
him vicariously liable for his daughter’s alleged negligence. On appeal, Aucoin
has abandoned the negligent entrustment argument and claims only that the family
purpose doctrine applies. We review the district court’s grant of summary
judgment de novo. Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002).
“In Georgia, when an automobile is maintained by the owner for the use and
convenience of his family, such owner is liable for the negligence of a member of
the family having authority to drive the car while it is being used for a family
purpose.” Phillips v. Dixon, 223 S.E.2d 678, 679 (Ga. 1976). To invoke the
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family purpose doctrine, the plaintiff must show that (1) the defendant owns the
automobile or has a recognized interest in it; (2) the defendant made the car
available for family use; (3) the negligent driver is a member of the defendant’s
immediate family; and (4) the car was driven at the time of the negligence with the
permission or acquiescence of the defendant. Finnocchio v. Lunsford, 201 S.E.2d
1, 3 (Ga. Ct. App. 1973).
Georgia courts have clarified that “[t]he actual test. . . is the authority and
control of the vehicle by the person alleged to have provided the vehicle.”
Marshall v. Whaley, 520 S.E.2d 271, 273 (Ga. Ct. App. 1999). As a result, “after
it is determined that the four factors. . . are present, the inquiry becomes whether
the owner of the vehicle exerted sufficient authority and control for the doctrine to
be applied.” Clifton v. Zemurray, 478 S.E.2d 897, 898 (Ga. Ct. App. 1996). “The
doctrine. . . is not applied to render a parent vicariously liable unless the parent
had the right to exercise such authority and control that it may be concluded that
an agency relationship existed between the parent and the family member with
respect to the use of the vehicle.” Gould v. Latorre, 488 S.E.2d 116, 119 (Ga. Ct.
App. 1997).
Here the district court found that Aucoin had not shown a genuine issue of
material fact on two of the factors. First, he had not shown that Mr. Connell had
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an ownership interest in the car. The evidence indicated that Mr. Connell’s wife
paid for the car and the car was titled and registered in her name. Second, Aucoin
had not shown a single instance when Mr. Connell had exercised control over the
car, or restricted Ms. Connell’s use of the car in any way.
We agree with the district court. In this appeal, Aucoin argues that Mr.
Connell had an ownership interest because he was the primary insured on the
insurance policy, and a jury might infer that because his wife stayed at home, Mr.
Connell was the real owner of the car. Regardless of whether that is true or not,
Aucoin fails to argue the chief factor: whether Mr. Connell had authority and
control over the car. Aucoin does not provide any evidence showing a single
instance where Mr. Connell restricted, controlled, constrained, or guided Ms.
Connell’s use of her car. Georgia courts have found that a plaintiff failed to show
authority and control even when he produced some evidence. See Marshall, 520
S.E.2d at 273. Aucoin produced no evidence, and summary judgment was
therefore proper as to Mr. Connell.
We hold that the claim against Ms. Connell was time-barred and that there
was no genuine issue of material fact with respect to the claims against Mr.
Connell, and thus affirm the grant of summary judgment to Ms. and Mr. Connell.
AFFIRMED.
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