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Jay O’Brien Prevails on Motion to Dismiss

August 7, 2018

Jay O’Brien prevailed on a motion to dismiss with prejudice in favor of an employee and the owner/operator of a residential reentry facility, or halfway house, that provides services to inmates that are transitioning from a federal correctional facility back to society.  The Plaintiff, one of the residents assigned to the facility, alleged that he was forced by the Defendants to register as a sex offender with the Fulton County Sheriff’s Department, despite Plaintiff’s understanding that there was no such requirement that he register as a sex offender.  Plaintiff alleged that he eventually registered as a sex offender, but it was determined three weeks later by the Georgia Bureau of Investigation, that Plaintiff was not a sex offender, so his name was removed from the list.  Plaintiff alleged that his name continued to be listed on internet sites as a registered sex offender.

The initial lawsuit was filed in 2015, and alleged defamation.  The lawsuit was later dismissed without prejudice, but then re-filed within the six month period permitted by the Georgia renewal statute.  After the suit was re-filed, Plaintiff failed to timely serve the corporate defendant with process until 87 days after re-filing his lawsuit; and he never served the employee.  A motion to dismiss was filed on the grounds that the claims were barred by the statute of limitation because Plaintiff failed to exercise due diligence in perfecting service of process in a timely manner on the Defendants.  After the motion to dismiss was filed, in an effort to avoid the statute of limitation bar, Plaintiff amended his complaint to allege that the defamation was a continuing tort, as he was still listed on the internet as a sex offender, and therefore, the statute had not yet started to run.  The judge agreed with the Defendants and granted the dismissal with prejudice.

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For informational purposes only. Past success does not indicate the likelihood of success in future cases.