When a client contacts me after they’ve been sued, one of the first questions I ask them is whether they have been served with a copy of the lawsuit. For a party filing suit, service of process is the first procedural hurdle in litigation.
To properly serve a defendant, a plaintiff must comply with O.C.G.A. 9-11-4, Georgia’s law governing service of process. Importantly, Georgia requires personal service on a defendant – mailing a copy of the lawsuit to the defendant is insufficient.
If the lawsuit stems from an ongoing dispute, the defendant may receive notice of the lawsuit prior to formal service of process, such as by email. Sometimes this can create confusion, especially in situations where the plaintiff fails to properly serve the defendant. If a defendant is aware of a lawsuit, is he obligated to respond when he hasn’t yet been served?
In a recent opinion from the Georgia Court of Appeals, the appellate court clarified that notice of a lawsuit is insufficient in the absence of service in compliance with O.C.G.A. 9-11-4. See IMC Construction Co., Inc. v. Mitchell, 365 Ga. App. 470 (2022).
The IMC case involved a construction dispute between a homeowner and a contractor. The homeowner sued the contractor and attempted to serve the contractor’s registered agent by leaving a copy of the complaint and summons at the registered agent’s home with the registered agent’s son. A few weeks later, the homeowner filed a certificate of acknowledgement indicating service of process on the contractor through the Georgia Secretary of State. After the contractor failed to file an answer, the homeowner obtained a default judgment against the contractor.
Four months later, the homeowner deposed the contractor. Nine months after the deposition, the contractor moved to set aside the default judgment, arguing that it had never been served with process.
After the trial court denied the motion to set aside the default judgment, the contractor appealed. The contractor argued that because it had never been served, the trial court lacked jurisdiction to enter default judgment against it. Under well-established Georgia law, without proper service or a valid waiver of service, the court does not have jurisdiction over the defendant. See Bonner v. Bonner, 272 Ga. 545, 546 (2000).
For corporations, O.C.G.A. 9-11-4(e) requires personal service on the company’s registered agent. If the registered agent cannot be located or served, the plaintiff may serve the Georgia Secretary of State. However, service on the Secretary of State is only proper after a plaintiff has attempted to serve the registered agent. Stone Exch. v. Surface Tech Corp. of Ga., 269 Ga. App. 770, 772 (2004). In IMC, once the contractor challenged the validity of service of process, the burden shifted to the plaintiff to show proper service. The plaintiff was unable to prove that she had ever attempted to personally serve the contractor’s registered agent.
Despite the lack of evidence of proper service, the trial court ruled that the contractor waived its defense of lack of service by failing to raise the defense earlier in the case, such as when the contractor appeared for its deposition. The trial court found that the contractor had “actual notice” of the lawsuit, such that the entry of default judgment was proper.
The Court of Appeals disagreed with the trial court and held that without valid service of process, “it is immaterial whether the defendant had actual notice of the pendency of the action.” Accordingly, the appellate court reversed the trial court’s denial of the motion to set aside the judgment.