Jerome Vento v. Jaykant Patel, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11392
Non-Argument Calendar
____________________
JEROME VENTO,
Plaintiff-Appellant,
versus
JAYKANT R. PATEL,
AUTO-OWNERS INSURANCE COMPANY AND OWNERS
INSURANCE COMPANY,
Uninsured Motorist Insurance Carrier,
Defendants-Appellees.
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2 Opinion of the Court 23-11392
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-03181-MLB
____________________
Before J ORDAN, L UCK , and L AGOA , Circuit Judges.
PER CURIAM:
Jerome Vento was injured when a negligent driver lost
control and struck him on the road. After settling with the driver,
Vento filed a complaint against the motorist insurance carrier of
the underinsured motorist who struck his car. The district court
dismissed Vento’s case for failure to perfect timely service, which
he now appeals. For the reasons discussed below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 26, 2019, Jaykant Patel drove negligently and
lost control of his car, swerving into Vento’s car and causing Vento
serious injuries. On April 4, 2022,1 Vento sued Patel in Georgia
1 Beginning on March 14, 2020, the Georgia Supreme Court entered several
Judicial Emergency Orders tolling deadlines and statutes of limitations be-
cause of the COVID-19 pandemic. See Ga. Sup. Ct. Admin. Order of Mar. 14,
2020. The statute of limitations tolling was lifted on July 14, 2020. See Ga.
Sup. Ct. Admin. Order of June 12, 2020, at 3. As a result, the applicable statute
of limitations was extended for 122 days, ultimately lapsing on April 26, 2022.
See id. at 4 (“The 122 days between March 14 and July 14, 2020, or any portion
of that period in which a statute of limitations would have run, shall be ex-
cluded from the calculation of that statute of limitation.”).
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23-11392 Opinion of the Court 3
state court. Vento and Patel had agreed to a settlement, but the
applicable insurance was insufficient to cover Vento’s injuries, so
Vento also served (or tried to serve) the complaint on unnamed
defendant Auto-Owners Insurance Company (“Auto-Owners”),
which Vento believed to be his underinsured motorist insurance
carrier.
Auto-Owners and an affiliate called Owners Insurance
Company (“Owners Insurance” and collectively, the “Insurance
Companies”) removed the case to federal court. The Insurance
Companies then moved to dismiss Vento’s complaint, claiming
that Owners Insurance (not Auto-Owners) was the correct
underinsured motorist carrier and advancing the following five
main arguments. First, Vento failed to properly serve any
defendant. Second, Vento had not served Patel, a necessary
antecedent to recovery from the underinsured motorist carrier,
and any further attempt to serve would be untimely. Third, Vento
failed to demonstrate reasonable diligence in trying to serve on
Auto-Owners. Fourth, Vento had not even tried to serve Owners
Insurance and had therefore failed to exercise reasonable diligence
as to that entity. And finally, in light of the failure to serve, Vento’s
claims were barred by the statute of limitations.
Vento responded to the motion to dismiss, insisting that
“[d]espite a few hiccups,” he had acted diligently and did, in fact,
timely serve Auto-Owners. He attached an affidavit from his
counsel, David Baum (the “Baum Affidavit”), in which Baum
attested that Vento acted with reasonable diligence in attempting
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4 Opinion of the Court 23-11392
to serve Auto-Owners in accordance with Georgia law, O.C.G.A. §
33-11-7. In sum, the Baum Affidavit swore to the following facts:
After filing the Complaint, I sent a copy of the
Summons and Complaint to the Gwinnett County
Sheriff’s Department, requesting that the department
serve the Complaint upon Auto Owners. When I
checked the status of the service, I was told that the
sheriff was in the process of making service.
However, after a few weeks passed, I again
called the sheriff, and this time I was told that no
service had been made AND that they could not find
the check from my office. I was then forced to send a
new copy of the Complaint and a new check to the
Gwinnett Sheriff’s Department to effect service upon
Auto Owners.
In the meantime, in order to exercise
reasonable diligence in light of Gwinnett Sheriff’s
failure to effect service, I began contacting the usual
service of process company utilized by counsel, i.e.,
Atlanta Legal Services. Unfortunately, there was a
two-week delay [and] I was unable to contact Marc
Allard, who coordinates service of process for Atlanta
Legal Services. For two to three weeks, I sent Mr.
Allard several calls and emails re: serving process on
Auto Owners, to no avail.
However, as soon [as] I was able to reach
Atlanta Legal Services, I hired the company to effect
service upon Auto Owners. Several days later, I was
contacted by Marc Allard, who informed counsel that
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23-11392 Opinion of the Court 5
Atlanta Legal Services was not appointed in Gwinnett
County.
As a result, I immediately filed a Motion to
Appoint Atlanta Legal Services in the Gwinnett
County State Court, asking to appoint a process
server from Atlanta Legal Services. The Judge’s staff
next contacted me and requested a resume for Atlanta
Legal Services’ process server. As I was obtaining the
resume, the Gwinnett County Sheriff successfully
served Auto Owners with process of this lawsuit.
All of this, Vento submitted, was evidence of diligence and reason
to deny the motion to dismiss. Vento also disputed the Insurance
Companies’ assertion that Owners Insurance, rather than Auto-
Owners, was the proper defendant. Nevertheless, he requested
that, should the district court find “that either Auto Owners or
Owners Insurance must be named as parties, then [it should grant]
an extension of thirty (30) days to do the same.” Vento likewise
requested an extension of time to serve Patel, conceding that he
had not done so and that he was legally barred, by a previous
settlement agreement, from seeking further recovery from Patel.
Vento argued that neither Patel nor the Insurance Companies
would be prejudiced by such an extension because Patel did not
face any potential liability and Auto-Owners (in Vento’s view) had
already been served.
In reply, the Insurance Companies responded that the Baum
Affidavit amounted to two things: an acknowledgement that
“there was only one attempt to physically serve Unnamed
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Defendant Auto-Owners[,] . . . 99 days after filing the Complaint
and 77 days after the expiration of the statute of limitations,” and
an admission that, six months after the statute of limitations
expired, Vento had never even tried to serve Patel.
After full briefing, the district court entered an order
dismissing Vento’s case without prejudice, which determined that
dismissal was required because Vento failed to timely effectuate
service. Applying Georgia law, which both parties agreed was
appropriate, the district court explained that “a plaintiff generally
must effectuate service within the statute of limitations for the
service to count as timely.” Service outside of the limitations
period, the district court stated, can only be considered timely
where the plaintiff filed the complaint within the limitations period
and either (1) a process server effectuated service within five days
from the time he received the summons and complaint or (2) the
plaintiff acted in a reasonable and diligent manner in attempting to
ensure that proper service was made as quickly as possible.
Under these rules, the district court found Vento had failed
to timely serve any defendant. He had filed his complaint within
the limitations period, which closed on April 26, 2022. But he had
undisputedly not served anyone by that date. Nor had a process
server served any defendant within five days of receiving the
complaint and summons. And the court found that Vento had not
shown that he diligently sought to perfect service as quickly as
possible.
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23-11392 Opinion of the Court 7
As evidence of diligence, the district court stated, Vento
proffered only “a vague, two-page affidavit describing his efforts to
serve Auto-Owners. . . . But this affidavit says nothing about
Defendant [Patel] or Owners [Insurance], and lacks the kind of
‘specific dates and details’ required to show diligence.” The district
court highlighted the flaws in greater detail, noting that the Baum
Affidavit “does not include a single concrete date and its timeline is
littered with generalized references to ‘few weeks,’ ‘[s]everal days,’
‘two to three weeks,’ ‘[i]n the meantime,’ and the like.” This
limited information, the district court concluded—even if it were
sufficiently specific—suggested that Vento did not act diligently.
The district court also found that Vento had still not
attempted to serve Patel or Owners Insurance, even though eleven
months had passed since he filed his complaint and seven months
had passed since the Insurance Companies first raised the issue in
their motion to dismiss. The district court also determined that
Vento’s claimed ignorance of the law requiring him to serve Patel
was no excuse and, again, suggested a lack of diligence. The district
court also noted Vento’s confusion about which of the Insurance
Companies held his underinsured motorist policy but explained
that it was his obligation to investigate and that “[n]othing suggests
this happened. Nothing with the requisite specificity, anyway.”
For all these reasons, the district court dismissed Vento’s complaint
without prejudice for insufficient service of process under Georgia
law. In a footnote, the district court made two more observations.
First, it observed that dismissal would be similarly warranted under
federal law, since Federal Rule of Civil Procedure 4(m) requires
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8 Opinion of the Court 23-11392
service within 90 days. Second, “given the untimely service here,”
the district court noted that Vento’s “complaint is almost certainly
barred by the statute of limitations as well.”
This timely appeal ensued.
II. STANDARD OF REVIEW
We review for abuse of discretion a district court’s dismissal
without prejudice of a plaintiff’s complaint for failure to timely
serve a defendant. Lepone-Dempsey v. Carroll Cnty. Comm’rs, 476
F.3d 1277, 1280 (11th Cir. 2007). We also review for abuse of
discretion a court’s decision about whether to grant an extension
of time to serve. Id.
When, as in this case, “a plaintiff fails to show good cause for
failing to effect timely service pursuant to Rule 4(m)," the district
court must still consider whether any other circumstances warrant
an extension of time based on the facts of the case.” Id. at 1282. A
district court must consider, for example, whether the running of
the statute of limitations would bar the plaintiff from refiling his
claims. See id. As long as the district court considers the statute of
limitations, the expiration of the statute of limitations “does not
require that the district court extend time for service of process
under Rule 4(m).” Id.
III. ANALYSIS
Although Georgia law requires a process server to effect
service within five days of receipt of the complaint and summons,
see O.C.G.A. § 9–11–4(c)(5), “it states no time limit within which a
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23-11392 Opinion of the Court 9
plaintiff must seek service,” Arias v. Cameron, 776 F.3d 1262, 1269
(11th Cir. 2015) (citing Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 462
S.E.2d 713, 715 (Ga. 1995)). So as long as service is perfected before
the statute of limitations expires, “‘the mere time lapse’ between
the date of filing and the date of service is not a valid basis for
dismissal.” Ga. Farm Bureau., 462 S.E.2d at 715 (quoting Childs v.
Catlin, 216 S.E.2d 360, 363 (Ga. Ct. App. 1975)).
“Where service is made after the statute of limitation
expires, ‘the timely filing of the complaint tolls the statute only if
the plaintiff shows that he acted in a reasonable and diligent
manner in attempting to [e]nsure that a proper service was made
as quickly as possible.’” Lipscomb v. Davis, 783 S.E.2d 398, 399 (Ga.
Ct. App. 2016) (alteration in original) (quoting Slater v. Blount, 408
S.E.2d 398, 433 (Ga. Ct. App. 1991)). Additionally, “when the
statute of limitation has expired, and a defendant raises the issue of
defective service, the plaintiff must act with ‘the greatest possible
diligence’ from that point forward in order to serve the defendant
or risk dismissal of his case.” Id. (quoting Ingraham v. Marr, 540
S.E.2d 652, 655 (Ga. Ct. App. 2000)).
We conclude that the district court did not abuse its
discretion in finding that Vento failed to timely serve. Vento was
injured on December 26, 2019, and his statute of limitations lapsed
on April 26, 2022 (including the 122-day extension because of
Georgia’s COVID-19 Administrative Orders). He admittedly
served no one—neither Patel nor the Insurance Companies—by
that date. To save his case from dismissal, therefore, Vento needed
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10 Opinion of the Court 23-11392
to show that “he acted in a reasonable and diligent manner” to
ensure proper service “as quickly as possible.” See id. And because
the Insurance Defendants raised this service problem in their
motion to dismiss back in September 2022, the bar was set even
higher, requiring Vento to display “‘the greatest possible
diligence’” from that point forward.” Id. (quoting Ingraham, 540
S.E.2d at 644).
Here, Vento showed the district court little evidence of
diligence at all, let alone “the greatest possible diligence.” We
agree with the district court’s finding that the Baum Affidavit is
vague and superficial and lacking in the “dates or other specifics
sufficient to gauge his effort.” Brown v. State Farm Mut. Auto. Ins.
Co., 529 S.E. 2d 439, 441 (Ga. Ct. App. 2000). The Baum Affidavit
is thin on details and replete with generalities like “there was a two-
week delay,” “a few weeks passed,” and “for two to three weeks,”
all undercutting Vento’s claim that he acted with reasonable
diligence to effectuate service.
We also conclude that the district court did not abuse its
discretion in dismissing Vento’s complaint for failure to serve Patel
and Owners Insurance. Vento does not dispute that he failed to
serve Patel, evidenced by his request for an extension of time to do
so. That alone is a dispositive issue because “absent sufficient
service on the tortfeasor, a claimant cannot recover from his or her
UM carrier.” Hayward v. Retention Alts. Ltd., 661 S.E.2d 862, 865
(Ga. Ct. App. 2008), aff’d, 678 S.E.2d 877 (Ga. 2009); accord Barabont
v. Villanueva, 584 S.E.2d 74, 77 (Ga. Ct. App. 2003) (“[S]ervice on
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23-11392 Opinion of the Court 11
the tortfeasor is a condition precedent for recovery against the
uninsured motorist carrier.”).
Nor are we persuaded that the district court erred in its
treatment of Vento’s request for an extension of time to serve.
First, we note a procedural misstep: Federal Rule of Civil
Procedure 7(b) requires that any “request for a court order must be
made by motion.” Vento, instead, imbedded his request for an
extension of time to serve in his response to the Insurance
Companies’ motion to dismiss. The request was, therefore, not
properly before the district court in the first instance. See Herederos
De Roberto Gomez Cabrera, LLC v. Teck Res. Ltd., 43 F.4th 1303, 1312
n.4 (11th Cir. 2022) (“Herederos concedes that it ‘did not file a
distinct and entirely independent motion to take jurisdictional
discovery as it was required to’ [under Rule 7(b)].”), cert. denied, 143
S. Ct. 736 (2023).
In any event, the district court did acknowledge the request,
specifically noting how Vento “claim[ed] he did not realize he
needed to serve [Patel].” The district court also recognized that,
given Vento’s failure to serve, his “complaint is almost certainly
barred by the statute of limitations as well.” In other words, we
cannot conclude that the district court failed to consider whether
“any other circumstances warrant an extension of time based on
the facts of the case.” Lepone-Dempsey, 476 F.3d at 1282. On the
contrary, the district court expressly considered that the statute of
limitations would “almost certainly” bar Vento’s claims and found
no reason to grant him reprieve from that outcome.
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In summary, more than seven months lapsed between the
time the Insurance Companies made Vento aware of the need to
serve Patel and the time the district court dismissed the case, and
the docket is devoid of any motion for extension of time or any
other indication that Vento tried to serve Patel in the interim. Nor
has Vento suggested any such efforts to us. Given the lack of
diligence displayed in attempting to serve any party and Vento’s
failure to proffer any reason why the time to serve Patel should be
extended, we conclude that the district court did not abuse its
discretion in not granting an extension of time to serve.
IV. CONCLUSION
Because we hold that the district court did not abuse its
discretion in dismissing Vento’s complaint for failure to timely
perfect service, we affirm.
AFFIRMED.
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