Lorna Bledsoe v. Office Depot

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 10, 2018
• Docket: 17-12004
• Status: Unpublished

Opinion

Case: 17-12004 Date Filed: 04/10/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12004 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-04147-SCJ

LORNA BLEDSOE,

Plaintiff-Appellant,

versus

OFFICE DEPOT, OFFICE DEPOT RISK MANAGEMENT, Claim #3012597378001,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(April 10, 2018)

Before TJOFLAT, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 17-12004 Date Filed: 04/10/2018 Page: 2 of 4

Lorna Bledsoe, proceeding pro se, appeals the district court’s order granting

the motion to dismiss her negligence action against Office Depot and Office Depot

Risk Management (“Office Depot”). Bledsoe argues that the district court

incorrectly applied Georgia law when it determined that her claim was barred by

the statute of limitations. Alternatively, Bledsoe argues that she demonstrated

reasonable and diligent efforts to serve Office Depot as quickly as possible after

the expiration of the statute of limitations period and that the limitations period

should be tolled because of her incompetency.

I.

A district court’s interpretation and application of a statute of limitations is

reviewed de novo. Foudy v. Miami-Dade Cty., 823 F.3d 590, 592 (11th Cir. 2016),

cert. denied, 137 S. Ct. 651 (2017). A district court’s determination that a plaintiff

failed to exercise reasonable diligence in perfecting service is reviewed for abuse

of discretion. See Cambridge Mut. Fire Ins. Co. v. City of Claxton, 720 F.2d 1230,

1233 (11th Cir. 1983). Generally, we will not consider on appeal issues that were

not raised in the district court. Narey v. Dean, 32 F.3d 1521, 1526–27 (11th Cir.

1994).

In diversity actions, federal courts must apply state substantive law. Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). State statutes of limitations are

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substantive laws and must be followed by federal courts in diversity actions.

Cambridge, 720 F.2d at 1232. Georgia courts have interpreted their service of

process statute as an integral part of the state statutes of limitations. Id.

Accordingly, Georgia law governs whether service made after the statute of

limitations expires relates back to the date the action was filed. See id.

Under Georgia law, actions for personal injuries must be brought within two

years after the right of action accrues. O.C.G.A. § 9-3-33. When service is made

after the statute of limitations expires, the timely filing of the complaint will only

toll the statute of limitations if the plaintiff demonstrates that she acted reasonably

and diligently in attempting to obtain service as quickly as possible. Lipscomb v.

Davis, 783 S.E. 2d 398, 399 (Ga. App. 2016). If a person suffers a disability after

a right of action accrues, which causes them to be legally incompetent, the statute

of limitations may be tolled during that period of disability. O.C.G.A. §§ 9-3-90,

9-3-91.

The district court correctly applied Georgia law in a diversity case based on

a Georgia cause of action. Cambridge, 720 F.2d at 1232. The district court did not

abuse its discretion when it determined that Bledsoe had failed to demonstrate

reasonable and diligent efforts to obtain service as quickly as possible after the

statute of limitations expired, because Bledsoe did not assert any efforts she took to

obtain service until almost 60 days after the limitations period expired. We need

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not consider whether the statute of limitations period was tolled during a period of

disability, because Bledsoe did not properly raise this issue before the district

court. Narey, 32 F.3d at 1526–27. Therefore, the district court did not err by

granting the motion to dismiss, and we affirm the district court’s order.

AFFIRMED.