Sometimes the temptation to follow the easy path of default judgment causes an attorney to stray off the straight and narrow path of, well, serving the lawsuit. In Turfstore.com, Inc. v. Hall, A18A1664, Court of Appeals of Georgia, January 15, 2019, the court again demonstrated what happens to those who give into that temptation, and also the temptation of using a private carrier when the U.S. Postal Service does just fine.
Plaintiff sued Defendant. Plaintiff concluded that Defendant did not have a registered agent in Georgia so Plaintiff availed itself of O.C.G.A. § 14-2-1510 (b) and (c), which govern service on an out-of-state corporation who does not have a registered agent. Plaintiff served the defendant using a statutory overnight service (not the U.S. Postal Service), who received the service package on September 15, and delivered it to a company that was not the Defendant on September 19. That company forwarded it to the Defendant on January 4 of the following year. Coincidentally (and that is not a sarcastic use), Plaintiff sought entry of default judgment on January 3, based on what Plaintiff contended was a service date of September 15 or September 19. The trial court entered default judgment, and the Defendant appealed.
The Court of Appeals reversed. As an initial matter, the court explained that if there is no perfected service, there is no default. Thus, the issue was whether service was perfected. Quoting the governing statute, the court identified three ways to establish the date of perfection: “: (1) The date the foreign corporation receives the mail; (2) The date shown on the return receipt, if signed on behalf of the foreign corporation; or (3) Five days after its deposit in the United States mail.” Section (1) would have set the service date as January 4. Section (2) didn’t apply at all.
It would appear Plaintiff’s only hope was for the Court of Appeals to read the words “United States Mail” as meaning “United States Mail or any other delivery service.” Not surprisingly, the court did not take up the invitation, stating “While a commercial firm such as UPS can provide an acceptable means of ‘statutory overnight delivery’ service, it is not ‘the United States mail.”” Hard to fly in the face of plain language.
This entry has been brought to you by the U.S. Postal Service. (Whose motto, in this case, could be stated as: it might not get there, but under Georgia law you can claim it did.)
GEORGIA LEGAL UPDATE 