United States Court of Appeals, Eleventh Circuit

720 F.
2d 1230
CAMBRIDGE MUTUAL FIRE INSURANCE CO., Liberty

Mutual Fire
Insurance Co., Maryland Casualty Co. and New
Hampshire Insurance Co., Plaintiffs-Appellants,
v.
CITY OF CLAXTON, GEORGIA, A Municipal Corporation,
Defendant-Appellee.
No. 82-8755.
United States Court of Appeals,

Eleventh Circuit.
Dec. 5, 1983.
Fred Clark, Malberry Smith, Jr., Savannah, Ga., for plaintiffs-appellants.

William E. Callaway, Jr., Ronald W. Hallman, Claxton, Ga., for
defendant-appellee.
Appeal from the United States District Court for the Southern District of
Georgia.
Before HILL and VANCE, Circuit Judges, and TUTTLE, Senior Circuit
Judge.
TUTTLE, Senior Circuit Judge:
In this diversity action, plaintiffs-appellants Cambridge Mutual Fire Insurance

Co., Liberty Mutual Fire Insurance Co., Maryland Casualty Company, and New
Hampshire Insurance Co., as subrogees and assignees of Claxton Poultry
Company, Inc. ("Claxton Poultry"), seek to recover property damages from
defendant-appellee City of Claxton, Georgia. Plaintiffs allege that defendant
negligently overpressurized natural gas lines leading into the Claxton Poultry
plant causing a massive explosion on November 23, 1972. The United States
District Court for the Southern District of Georgia, Savannah Division, 96
F.R.D. 175, dismissed the action. We affirm.
I. BACKGROUND
2
This action was first brought in the Superior Court of Evans County, Georgia
on November 7, 1973. The superior court case was still pending when, on
November 22, 1976, the day before the Georgia statute of limitations would
have run, 1 an action was filed in federal district court. The district court
dismissed the case for lack of diversity jurisdiction.
The superior court case, which had never been dismissed, proceeded to a jury
trial that resulted in a judgment in favor of defendant. The Georgia Court of
Appeals reversed and remanded for a new trial because of the trial court's
failure to give a requested charge. Claxton Poultry Co. v. City of Claxton, 155
Ga.App. 308, 271 S.E.2d 227 (1980). On September 8, 1981, plaintiffs
voluntarily dismissed the action pending in superior court.
On February 19, 1982, plaintiffs filed a new complaint, which is the basis of
this action, in federal district court. A summons was issued on February 19,
1982 and served on defendant on February 23, 1982 by certified mail addressed
to and received by the Mayor of the City of Claxton. On March 10, 1982,
defendant moved to dismiss on several grounds, one of which was insufficiency
of service of process. On April 22, 1982, in defendant's answers to plaintiffs'
interrogatories, it stated that service was defective because defendant was
served by mail rather than personally. On October 14, 1982, plaintiffs filed a
motion asking the court for leave to properly serve a summons on defendant by
personal service. On November 24, 1982, the trial court entered an order
dismissing the action based on its discretion under Rule 41(b) of the Federal
Rules of Civil Procedure, as well as on the ground that under Georgia law
service would not relate back to the date the complaint was filed so as to toll the
statute of limitations which had by then expired.
II. DISCUSSION
5
Although plaintiffs filed their complaint in federal court more than nine years
after the cause of action arose, under Georgia law the complaint was not barred
by the four year statute of limitations. The Georgia statute provides that a case,
which is dismissed and then renewed within six months of the dismissal, shall
stand upon the same footing as to the statute of limitations as the original case.
O.C.G.A. Sec. 9-2-61 (1982) (formerly Ga.Code Ann. Sec. 3-808). Although
plaintiffs filed their complaint and served process on defendant within six
months of the dismissal of the prior case, service of process was defective
under Rule 4(d)(6) of the Federal Rules of Civil Procedure.2 Rule 4(d)(6)
provides that when a municipal corporation is served, service must be made
personally or in the alternative, that service may meet state law requirements.
The state law requirement was not met since the Georgia statute also requires
personal service. See O.C.G.A. Sec. 9-11-4(d)(5) (1982) (formerly Ga.Code
Ann. Sec. 81A-104(d)(5)). Thus, defendant was not properly served before the
Georgia statute of limitations had run.
6
We first must determine whether federal or state law governs the outcome of
this case. Under Rule 3 of the Federal Rules of Civil Procedure, a suit
commences when the complaint is filed. If Rule 3 dictates at what point a suit
commences for purposes of this diversity suit, defendant is not barred by the
Georgia statute of limitations because the complaint was filed within the six
month period. Consequently, the dismissal of the suit would be analyzed under
the standards of Rule 41(b) of the Federal Rules of Civil Procedure, which
authorizes the district court to dismiss an action with prejudice for failure to
prosecute. If, however, Rule 3 is not controlling, Georgia law would determine
whether the action is barred by the statute of limitations.
Under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938), a federal court in a diversity action must apply the
controlling substantive law of the state. In Guaranty Trust Co. v. York, 326
U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), the Supreme Court held that
state statutes of limitations are substantive laws and must be followed by
federal courts in diversity actions. In Ragan v. Merchants Transfer &
Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), the
Supreme Court held that a Kansas statute rather than Rule 3 of the Federal
Rules of Civil Procedure dictated the commencement date of the suit for
purposes of determining whether the statute of limitations was tolled. The state
statute, which provided for commencement of a suit upon service of process,
controlled because it was an integral part of the state statute of limitations. Id.
at 534, 69 S.Ct. at 1235. According to the Supreme Court, a state created cause
of action "accrues and comes to an end when local law so declares. Where local
law qualifies or abridges it, the federal court must follow suit. Otherwise, there
is a different measure of the cause of action in one court than in the other, and
the principle of Erie R. Co. v. Tompkins is transgressed." Id. at 532, 69 S.Ct. at
1235 (cites omitted). The Supreme Court reaffirmed its holding in Ragan in
Walker v. Armco Steel Corp., 446 U.S. 740, 748, 100 S.Ct. 1978, 1984, 64
L.Ed.2d 659 (1980), which it described as indistinguishable from Ragan. In
Walker, the Court stated that "[t]here is no indication that ... Rule was intended
to toll a state statute of limitations, much less that it purported to displace state
tolling rules for purposes of state statutes of limitations." 446 U.S. at 750-51,
100 S.Ct. at 1985, 64 L.Ed.2d 659 (footnotes omitted).
Thus, we now examine Georgia law to determine whether Georgia's

commencement of action statute is an integral part of the statute of limitations.
Like the federal rule, the Georgia statute provides that a civil action is
commenced by the filing of a complaint. O.C.G.A. Sec. 9-11-3 (1982)
(formerly Ga.Code Ann. Sec. 81A-103). Service of process is to be made
within five days from the time of receiving the summons and complaint,
although failure to make it within the five days will not invalidate a later
service. O.C.G.A. Sec. 9-11-4 (1982) (formerly Ga.Code Ann. Sec. 81A-104).
Although the Georgia commencement statute is identical to the federal rule, the
Georgia Court has stated that "filing is still not the commencement of the suit
unless followed by service within a reasonable time, but that once service is
perfected upon a defendant, it will relate back to the original date of the filing
which will be considered the date of the commencement of the law suit."
Franek v. Ray, 239 Ga. 282, 285-86, 236 S.E.2d 629, 632 (1977).
The next question under Georgia law is whether service of process relates back
when the statute of limitations has run between the filing of the petition and the
perfection of service, as in this case. If service is perfected within five days of
filing the complaint, even though the statute of limitations has run before
service is perfected, service will relate back. Hilton v. Maddox, Bishop, Hayton
Frame & Trim Contractors, Inc., 125 Ga.App. 423, 427, 188 S.E.2d 167, 170
(1972). If, however, service is perfected more than five days after the filing of
the complaint and after the statute of limitations has run, service will relate back
only if the plaintiff diligently attempted to perfect service. Webb v. Murphy,
142 Ga.App. 649, 236 S.E.2d 840, 841 (1977); Bible v. Hughes, 146 Ga.App.
769, 770, 247 S.E.2d 584, 585 (1978); Hilton, 125 Ga.App. at 426, 188 S.E.2d
at 170.
10
By holding that service of process does not relate back to toll the statute of
limitations unless the plaintiff has acted diligently, the Georgia courts have
interpreted their commencement statute and service of process statute as
integral parts of the state statute of limitations.3 Thus, this Court finds that
Georgia law determines whether plaintiffs are barred by the statute of
limitations.4 Such a finding is consistent with the Supreme Court's statement in
Walker v. Armco Steel Corp. that
11
[T]here
is simply no reason why, in the absence of a controlling federal rule, an
action based on state law which concededly would be barred in the state courts by
the state statute of limitations should proceed through litigation to judgment in
federal court solely because of the fortuity that there is diversity of citizenship
between the litigants.
12
446 U.S. at 753, 100 S.Ct. at 1986, 84 L.Ed.2d 859.
13
The trial court is vested with discretion to determine the cause of the delay and
if the trial court determines that the delay is attributable to the plaintiff and so
dismisses the complaint, the court of appeals will not intervene. Bible, 146
Ga.App. at 770, 247 S.E.2d at 385; Webb, 142 Ga.App. at 650, 236 S.E.2d at
841. In this case, the trial judge found that plaintiffs had not exercised
reasonable diligence to see that defendant was properly served. We cannot say
that the trial judge abused his discretion. Plaintiffs knew or should have known
of the defect in their service of process no later than April 22, 1982, yet they
waited until October 14, 1982 before moving the court for leave to perfect
service. See Bible, 146 Ga.App. at 770, 247 S.E.2d at 585 (action dismissed
where nonresident and resident defendants were served 56 days and 215 days
respectively after action filed); Webb, 142 Ga.App. at 649, 236 S.E.2d at 841
(action dismissed where defendant was served 56 days after complaint filed).
Plaintiffs have not met their burden of showing lack of fault. Bible, 146
Ga.App. at 771, 247 S.E.2d at 585.
14
In view of the foregoing, this Court need not address the merits of the dismissal
of defendant's suit under Rule 41(b).
15
AFFIRMED.
In Georgia, the statute of limitations for tortious damage to realty and

personalty is four years. O.C.G.A. Secs. 9-3-30, 9-3-31 (1982) (formerly
Ga.Code Ann. Secs. 3-1001, 3-1002)
In a diversity action, Rule 4 of the Federal Rules of Civil Procedure governs the
manner of service of process. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14
L.Ed.2d 8 (1965)
Because the state statutes do not in and of themselves specify when an action
shall be deemed commenced for the purpose of the statute of limitations, we
look to the Georgia courts' definition of when an action commences. Contra,
Reisinger v. Cannon, 127 F.Supp. 50, 51 (D.Conn.1954) (where there was no
statutory freezing of the definition as an integral part of the statute of
limitations, the district court would not look at state court decisions). Our
approach seems consistent with the Supreme Court's holding in West v.
American Telephone and Telegraph Co., 311 U.S. 223, 236-37, 61 S.Ct. 179,
185, 85 L.Ed. 139 (1940), that in a diversity action, state court decisions as well
as state statutes comprise the law of the state

4
The Fifth Circuit reached a similar result in applying Walker v. Armco Steel
Corp. to a Louisiana statute in Calhoun v. Ford, 625 F.2d 576 (5th Cir.1980)

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720 F.

CAMBRIDGE MUTUAL FIRE INSURANCE CO., Liberty

United States Court of Appeals,

Fred Clark, Malberry Smith, Jr., Savannah, Ga., for plaintiffs-appellants.

In this diversity action, plaintiffs-appellants Cambridge Mutual Fire Insurance

Thus, we now examine Georgia law to determine whether Georgia's

446 U.S. at 753, 100 S.Ct. at 1986, 84 L.Ed.2d 859.

In Georgia, the statute of limitations for tortious damage to realty and

as state statutes comprise the law of the state

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