O.C.G.A. 9-11-4(h) provides that a return or affidavit reflecting service on a defendant shall be made and filed within 5 business days of service on the defendant. This causes confusion and concern for litigants who miss that deadline for various reasons such as the sheriff delaying providing the return or the mail delaying the process server’s affidavit.
What happens if you miss the five business days? Does that later invalidate the server that was successful? Do you have to serve the defendant all over again?
Unequivocally, the answer is no. But it can delay things.
In Georgia, a defendant, generally, has 30 days to answer a complaint that is properly served on him. If the 30th day is a day on which the courts are closed, then the last day to answer defaults to the next business day. However, the day of service does not count as a day during the 30 days. The day of the event, so the day of service, is considered day 0 in terms of calculating times to answer or what day the plaintiff can request a default from the court where the action is filed. For example, if someone is served on March 1st, day 1 of the 30 days is March 2nd. Thus, the 30th day would be April 1st if the courts are open.
For the 5-day rule for the affidavit or return being filed, let us assume that the date of service was April 1st. Day 1 of the 5-day rule would be April 2nd. The last day to answer would be five business days from April 2nd. For example, if April 2nd is a Wednesday, then the 5th business day would be Wednesday, April 8th.
What happens if you do not file the affidavit of service until April 9th?
According to O.C.G.A 9-11-4(h), if the affidavit of service is not filed within 5 business days of service, then “the time for the party served to answer the process shall not begin to run until such proof of service is filed.” Simply, failure to adhere to the 5-day rule extends the time in which the person served has to answer. It does not invalidate the service.