Written by attorney Dustin R. Marlowe

Acknowledgment of Service v. Waiver of Service

Lawyers, particularly those who intend to keep their licenses to practice law, are serious about deadlines. They keep a calendar on their phone and on their desktop, and their assistants generally maintain a duplicate calendar, all with the hope and expectation that deadlines won’t get missed. But, as a recent decision of the Georgia Court of Appeals reminds us, the best calendaring system in the world won’t help you if you don’t know the correct deadline that the law fixes for whatever it is you are calendaring.

In Satnum Waheguru Corp. v. Buckhead Community Bank, — S.E.2d —-, 2010 WL 2384934 (Ga. App. June 16, 2010), the trial court entered a default judgment in favor of the plaintiff bank after the defendant debtor filed an answer more than 30 days after acknowledging service of the complaint. On appeal, the defendant debtor argued that a default judgment should not have been entered against it because, under O.C.G.A. § 9-11-4(d)(5), it had 60 days to file an answer because it waived service.

Under § 9-11-4(d)(3),

[T]he plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request shall:

(A) Be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent or other agent authorized by appointment to receive service of process for a defendant subject to service under paragraph (1) or (2) of subsection (e) of this Code section;

(B) Be dispatched through first-class mail or other reliable means;

(C) Be accompanied by a copy of the complaint and shall identify the court in which it has been filed;

(D) Make reference to this Code section and shall inform the defendant, by means of the text prescribed in subsection (l) of this Code section, of the consequences of compliance and of failure to comply with the request;

(E) Set forth the date on which the request is sent;

(F) Allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside any judicial district of the United States; and

(G) Provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.

(Emphasis added). If the plaintiff follows this process and the defendant, “before being served with process, returns a waiver so requested in a timely manner is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside any judicial district of the United States." O.C.G.A. § 9-11-4(d)(5).

The problem for the defendant debtor in Buckhead Community Bank, however, was that the plaintiff bank did not request a waiver of service from the defendant pursuant to § 9-11-4(d)(3). It requested that the debtor acknowledge service, which is what it did. As the Court of Appeals explains,

O.C.G.A. § 9-10-73[which provides that a defendant may acknowledge service or waive process by a writing signed by the defendant] does not prescribe a particular form for the notice. The “Acknowledgment of Service" here stated simply that “the undersigned hereby acknowledges service of the Summons and Complaint, … and does hereby acknowledge that he is authorized to accept service of same, and waives any and all further service of process herein."

Because the 60-day provision of O.C.G.A. § 9-11-4(d)(5) was not implicated by the executed acknowledgment of service (not waiver of service), “the trial court was authorized to conclude that [the defendant's] counsel executed an acknowledgment and waiver pursuant to O.C.G.A.9-10-73; that [the defendant's] answer was therefore due within 30 days after the acknowledgment and waiver; and that, because it failed to serve an answer within that 30-day period, its answer was untimely."

The lesson is simple but important: A calendar is only as good as the information on it; if you don’t correctly determine deadlines for your cases, you may as well not bother writing them down.

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