Patterson v. Mighty Muffler Shop, Inc., 1:10-cv-02176

Plaintiff Patterson filed Title VII action in DeKalb County Superior Court alleging race discrimination and class claims.
Defendants Mighty Muffler Shop and Mighty Muffler of Candler Road removed to ND Ga on July 14, 2010.
Defendants answered July 20, 2010 and asserted improper service as an affirmative defense.
Plaintiff later argued service timely under federal law and that removal cured defects.
Court must decide whether complaint was timely under 42 U.S.C. § 2000e-5(f)(1) and whether service was diligent.
Court recommends granting Defendants’ motion to dismiss for insufficient service/diligence under Georgia law

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff timely served under state law before removal	Patterson acted with due diligence in service	Untimely under five-day rule; delay prejudicial	Plaintiff not time-barred by §2000e-5 despite service delay
Whether the ninety-day limit applies to filing, not service	Filing within ninety days suffices—service not required	Service timing controls timeliness	Not time-barred; filing within ninety days satisfies §2000e-5(f)(1) per Pardazi/Baldwin
Whether Plaintiff acted with reasonable diligence in serving Defendants	Affidavit shows efforts to serve across counties	Delays were unexplained and not diligently pursued	Defendants not timely served; plaintiff failed diligence under Ga. law
Whether Defendants waived insufficiency of process by participating in litigation	Participation amounts to waiver	Waiver not shown; timely defense raised	No waiver; defense raised early in proceedings
Whether Court can cure service defects after removal	Court can remedy under 28 U.S.C. §1448	No cure for service defects post-removal	Court declined to cure service defects; recommended dismissal

Pardazi v. Cullman Medical Center, 896 F.2d 1313 (11th Cir. 1990) (service of process not required for ninety-day filing requirement under §2000e-5(f)(1))
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147 (1984) (Title VII action brought when complaint filed; Rule 3 governs timing)
Lee v. Kim, 622 S.E.2d 99 (Ga. 2005) (sheriff’s service timely when correct address supplied; reliance on sheriff allowed)
Walker v. Hoover, 383 S.E.2d 208 (Ga. App. 1989) (diligence required despite erroneous information from authorities)
Nee v. Dixon, 405 S.E.2d 766 (Ga. App. 1991) (diligence required despite incorrect information from sheriff’s office)
Kelley v. Lymon, 632 S.E.2d 734 (Ga. App. 2006) (dismissal affirmed for lack of diligence in locating/serving defendant)
Atcheson v. Cochran, 677 S.E.2d 749 (Ga. App. 2009) (evading defense; multiple delays; diligence questioned)
Lloyd v. Tyson, 392 S.E.2d 551 (Ga. 1990) (due diligence in locating defendant supported service)