[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 8, 2006
No. 06-12898 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-03128-CV-TWT-1
EILEEN GEARY,
Plaintiff-Appellant,
versus
THE CITY OF SNELLVILLE,
A Political Subdivision of the State of Georgia,
JAMES DAVIS,
KEVIN SEBRING,
ROBERT PENDLETON, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 8, 2006)
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
On appeal, Eileen Geary appeals the dismissal with prejudice of her pro se
42 U.S.C. § 1983 civil complaint and the denial of her motion for leave to file an
amended supplemental complaint.
Geary argues that, even though she filed this complaint after the applicable
statute of limitations period had run, the statute should have been tolled during the
pendency of an earlier filed motion to dismiss in a prior identical action. Geary
also argues that she should have been granted leave to amend her complaint to add
new causes of action against a Snellville police officer and new causes of action
against individuals allegedly responsible for the failure of service of process in the
prior identical action.
First, Geary argues that her complaint should not have been dismissed,
because the statute of limitations period was tolled. We review the district court’s
application of the statute of limitations period and the grant of a motion for
summary judgment de novo, applying the same standards as used by the district
court. McCaleb v. A.O. Smith Corp. 200 F.3d 747, 750 (11th Cir. 2000). We
review a grant of a motion for summary judgment to determine whether “there
[was] no genuine issue of material fact,” and whether the defendants were “entitled
to judgment as a matter of law.” Fed.R.Civ.P 56(c).
Actions brought in a federal district court in Georgia pursuant to § 1983 are
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governed by the two-year statute of limitations period for personal injuries set forth
in O.C.G.A. § 9-3-33. Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir.
1986). The question of whether the statute of limitations period is tolled is also
governed by Georgia law. See Scott v. Muscogee County, 949 F.2d 1122, 1123
(11th Cir. 1992) (applying Georgia renewal statute to time-barred § 1983 action in
federal court), Cambridge Mut. Fire Ins. Co. v. Claxton, 720 F.2d 1230, 1233 (11th
Cir. 1983) (applying Georgia law to question of whether the statute of limitations
period is tolled).
Under Georgia law, an action may be filed after the running of the statute of
limitations period under certain circumstances. Georgia’s renewal statute, set forth
in O.C.G.A. § 9-2-61 provides that:
When any case has been commenced in either state or federal court
within the applicable statute of limitations and the plaintiff
discontinues or dismisses the same, it may be recommenced in a court
of this state or in a federal court within the original applicable period
of limitations or within six months after the discontinuance or
dismissal, whichever is later. . . .
However, “[t]he renewal statute applies only to actions that are valid prior to
dismissal. . . . To constitute a valid action, the complaint must be served personally
on the defendant. . . . Thus, the original suit is void if service was never perfected,
since the filing of a complaint without perfecting service does not constitute a
pending suit." Stephens v. Shields, 271 Ga. App. 141, 142 (2004). See also Black
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v. Knight, 231 Ga. App. 820, 821 (1998) (“ in order for a case to qualify as a
renewal action, the earlier filed suit must have been a valid action with proper
service on the defendant”).
Geary’s complaint, filed on December 12, 2005, was filed beyond the
applicable statute of limitations period for all of the alleged incidents of
wrongdoing against the named defendants. Because her prior action was void due
to lack of service of process, the Georgia renewal statute did not toll the time to file
her complaint.
Next, Geary argues that the district court should have granted her motion for
leave to file an amended supplemental complaint. We review the district court’s
refusal to grant leave to amend for abuse of discretion; however, the underlying
legal conclusion that an amendment is futile is subject to de novo review. Harris v.
Ivax Corp., 182 F.3d 799, 802-03 (11th Cir. 1999). After a responsive pleading
has been filed, a plaintiff may amend her complaint only by leave of court or by
written consent of the adverse party. Fed.R.Civ.P. 15(a). However, leave to amend
is to be freely given, absent substantial reason to deny the motion. Laurie v.
Alabama Ct. of Crim. App., 256 F.3d 1266, 1274 (11th Cir. 2001). Rule 15(a)’s
requirement that leave be granted “when justice so requires” places a limit on a
court’s discretion. (Id.). Reasons justifying a denial of leave to amend include
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undue delay, bad faith, dilatory motive on the part of the movant, undue prejudice
to the opposing party by virtue of allowance of the amendment, and futility of
amendment. (Id.).
The district court carefully reviewed the proposed amendments put forward
by Geary and concluded that they “would be unable to withstand a motion to
dismiss.” We agree.
Because Geary’s proposed amendments would have been futile, the district
court did not abuse its discretion in denying Geary’s motion for leave to amend.
Upon careful review of the record, and consideration of the parties’ briefs,
we find no reversible error.
AFFIRMED.
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