March 20, 2024. Partner Nik Makarenko and Associate Jessica Devins won a dismissal on behalf of their client in the State Court of Fulton County in a Non-Resident Motorist Act Case.
This case arose out of an automobile collision that occurred on December 16, 2019. The Plaintiff filed her Complaint for injuries on December 21, 2021. The Defendant was a resident of Ohio at the time of the accident thus service needed to be effected on him out of state.
The Georgia Non Resident Motorist Act requires service of process upon a nonresident to be made by serving a copy of the complaint on the Secretary of
State, along with a copy of the affidavit of service to be submitted to the court. That service is sufficient as long as notice of the service and a copy of the complaint are sent by registered or certified mail or statutory overnight delivery by the plaintiff to the defendant and the return receipt also filed with the Court.
In this case, Plaintiff filed a Certificate of Acknowledgment with the Georgia Secretary of State on February 16, 2022. Plaintiff attached to that certificate a record of an attempt at service which indicated “Return to Sender, Attempted- Not Known. Unable to Forward.” Plaintiff then sought the appointment of a Special Process Server who atttempted personal service at that same address. The current resident confirmed to the process server that the Defendant did not reside there. Plaintiff then filed a second certificate purporting to effect service under the Nonresident Motorist Act based upon that attempt.
Ms. Devins and Mr. Makarenko argued that in order to effect service under the Non-Resident Motorist Act, the certified mail must be sent to an address known to be where the defendant resides pursuant to Guerrero v. Tallez, 242 Ga. App. 354 (2000) and other precedent. They aregued that the law required that the statute must be strictly complied with.
On March 1, 2024, Judge John Mather of the State Court of Fulton County granted Ms. Devins and Mr. Makarenko’s Motion Dismissing the case rejecting Plaintiffs arguments that they had satisfied the Non Resident Motorist Act.
The case is Esther Tella v. Troy Davis, State Court of Fulton County, CAFN 21-EV-7202.
Read more about Attorney Jessica Devins here.
Read more about Partner Nik Makarenko here.
