2020 Georgia Code
Title 14 - Corporations, Partnerships, and Associations
Chapter 2 - Business Corporations
Article 5 - Office and Agent
Part 1 - Registered Agents and Service of Process
§ 14-2-504. Service on Corporation

1. A corporation's registered agent is the corporation's agent for service of process, notice, or demand required or permitted by law to be served on the corporation.
2. If a corporation has no registered agent or the agent cannot with reasonable diligence be served, the corporation may be served by registered or certified mail or statutory overnight delivery, return receipt requested, addressed to the secretary of the corporation at its principal office. Service is perfected under this subsection at the earliest of:
   1. The date the corporation receives the mail;
   2. The date shown on the return receipt, if signed on behalf of the corporation; or
   3. Five days after its deposit in the mail, as evidenced by the postmark, if mailed postage prepaid and correctly addressed.
3. This Code section does not prescribe the only means, or necessarily the required means, of serving a corporation.

(Code 1981, §14-2-504, enacted by Ga. L. 1988, p. 1070, § 1; Ga. L. 2000, p. 1589, § 3.)

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the amendment to this Code section was applicable with respect to notices delivered on or after July 1, 2000.

- For article summarizing law relating to jurisdiction and venue over domestic and foreign corporations in Georgia, and service thereon, see 21 Mercer L. Rev. 457 (1970). For survey article on business associations, see 34 Mercer L. Rev. 13 (1982). For annual survey of trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For comment on Rossville Crushed Stone, Inc. v. Massey, 219 Ga. 467, 133 S.E.2d 874 (1963), see 1 Ga. St. B. J. 116 (1964). For comment advocating a "single-act" jurisdictional statute as basis for jurisdiction over a foreign corporation, in light of Singer v. Walker, 21 A.D.2d 285, 250 N.Y.S.2d 216 (1964), see 2 Ga. St. B. J. 131 (1965).

Source: Model Act, § 5.04. This replaces former § 14-2-62.

Somewhat the same circularity problem that arose in connection with the resignation of registered agents (see the Comment to Section14-2-503) also sometimes arose in connection with service of process under former Georgia law, § 14-2-62(c). Under that provision, if service could not be made on the registered agent at its registered office, a duplicate of the process was forwarded to the Secretary of State who served it at the registered office (where the agent previously could not be found). It is unlikely that this arrangement resulted in the copy being forwarded routinely to the corporation. Instead of providing for service on the Secretary of State if service cannot be perfected on the registered agent, therefore, Section14-2-504 provides for service by registered or certified mail addressed to the secretary of the corporation at its principal office shown in its most recent annual registration.

Cross-References Annual registration, see § 14-2-1622. Foreign corporations, see Article 15. "Notice" defined, see § 14-2-141. "Principal office": defined, see § 14-2-140; designated in annual registration, see § 14-2-1622. Registered office and agent: designated in annual registration, see § 14-2-1622; required, see § 14-2-501. "Secretary" defined, see § 14-2-140.

ANALYSIS

• General Consideration
• Service Upon Registered Agent
• Reasonable Diligence
• Effect on Other Manner of Service
• Foreign Corporations

General Consideration

Editor's notes.

- In light of the similarity of the provisions, decisions under former Civil Code 1910, § 2258, former Code 1933, §§ 22-403 and 22-1101 and former Code Section 14-2-62, which were repealed by Ga. L. 1988, p. 1070, § 1, effective July 1, 1989, are included in the annotations for this Code section.

The true test of jurisdiction is not residence or nonresidence of the plaintiff, or the place where the cause of action originated, but whether the defendant can be found and served in the jurisdiction where the cause of action is asserted. A corporation can be found in any jurisdiction where it transacts business through agents located in that jurisdiction, and suits may be maintained against it in that jurisdiction if the laws of the jurisdiction provide a method for perfecting service on it by serving its agents. Southern Ry. v. Parker, 194 Ga. 94, 21 S.E.2d 94 (1942) (decided under former Code 1933, § 22-1101).

- The statutory scheme providing different procedures for handling service upon foreign and domestic corporations does not deny domestic corporations equal protection under the state and federal constitutions. Ticor Constr. Co. v. Brown, 255 Ga. 547, 340 S.E.2d 923 (1986) (decided under former § 14-2-62).

- The substituted mode of service upon domestic corporations, in lieu of personal service, being a creature of statute and in derogation of common law must be strictly construed. Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977) (decided under former Code 1933, § 22-403).

- In the absence of service in conformity with the statute, or the waiver thereof, no jurisdiction over defendant is obtained and the judgment is void. Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977) (decided under former Code 1933, § 22-403).

If the pleadings show the officer charged with executing the process does not comply with former by attempting "with reasonable diligence" to perfect service of the summons and complaint at the registered address, the service is not irregular but defective and the judgment is void. Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977) (decided under former Code 1933, § 22-403).

- The court is not restricted in perfecting service of its processes on individuals or on corporations, whether by serving officers or agents or by substituted service, to the hours during which a corporation opens its doors to the public. Clements v. Sims T.V., Inc., 105 Ga. App. 769, 125 S.E.2d 705 (1962) (decided under former Code 1933, § 22-1101).

- In suit against receiver of railroad for loss of hogs allegedly destroyed by negligent operation of a train, court properly overruled demurrer (motion to dismiss) on grounds that receiver did not have an agent or office upon whom service could be made and that it did not appear whether the action was brought against the receiver or the railroad, because the receiver appeared and pleaded in answer to the summons and would not be heard to say that the receiver and the railroad were not one and the same for the purposes of the suit. Pidcock v. Stripling, 66 Ga. App. 692, 19 S.E.2d 178 (1942) (decided under former Code 1933, § 22-1101).

Cited in American Photocopy Equip. Co. v. Lew Deadmore & Assocs., 127 Ga. App. 207, 193 S.E.2d 275 (1972); Padgett Masonry & Concrete Co. v. Peachtree Bank & Trust Co., 130 Ga. App. 886, 204 S.E.2d 807 (1974); Lukas v. Pittman Hwy. Contracting Co., 134 Ga. App. 305, 214 S.E.2d 398 (1975); Jere Power Car Land, Inc. v. Moss, 134 Ga. App. 523, 215 S.E.2d 288 (1975); Adams Drive, Ltd. v. All-Rite Trades, Inc., 136 Ga. App. 703, 222 S.E.2d 174 (1975); Frazier v. HMZ Property Mgt., Inc., 161 Ga. App. 195, 291 S.E.2d 4 (1982); KMM Indus., Inc. v. Professional Ass'n, 164 Ga. App. 475, 297 S.E.2d 512 (1982); S. Donald Norton Properties, Inc. v. Triangle Pac., Inc., 253 Ga. 761, 325 S.E.2d 160 (1985); Bricks v. Walker Showcase, Inc., 255 Ga. 122, 336 S.E.2d 37 (1985); Lovett Sports, Inc. v. Atlantic Exhibit Servs., Inc., 178 Ga. App. 278, 342 S.E.2d 726 (1986); D & C Trading Co. v. Indian Prods., Ltd., 179 Ga. App. 198, 345 S.E.2d 865 (1986); Due W. Assocs. v. Renfroe Mining & Grading Co., 194 Ga. App. 397, 391 S.E.2d 13 (1990); Castellana v. Conyers Toyota, Inc., 200 Ga. App. 161, 407 S.E.2d 64 (1991); Ritts v. Dealers Alliance Credit Corp., 989 F. Supp. 1475 (N.D. Ga. 1997); Teledata World Servs., Inc. v. Tele-Mart, Inc., 242 Ga. App. 842, 531 S.E.2d 372 (2000); Stephens v. McDonald's Corp., 245 Ga. App. 109, 536 S.E.2d 566 (2000); Munoz v. Pac. Ins. Co., 261 Ga. App. 246, 582 S.E.2d 207 (2003).

Service Upon Registered Agent

Legislative intent.

- In creating registered agent service statute, the legislature intended to virtually eliminate the possibility of evasion of service of process by domestic corporations. American Consol. Serv. Corp. v. Nationwide Mut. Ins. Co., 156 Ga. App. 193, 273 S.E.2d 898 (1980) (decided under former Code 1933, § 22-403).

- Service of a corporation may be perfected by serving any agent of such corporation; and the word "agent" is to be taken in its ordinary sense, but the agent served must be an agent of the defendant company as distinguished from a mere servant or employee. Georgia Power & Light Co. v. Wilson, 48 Ga. App. 764, 173 S.E. 220 (1934) (decided under former Civil Code 1910, § 2258).

- The representative of a corporation, such as will meet the requirements of law governing service upon it by serving the representative personally, must be an officer of the corporation or any agent who has some sort of control or authority over some department or sphere of the corporation's business, but not a mere employee or servant. Dowe v. Debus Mfg. Co., 49 Ga. App. 412, 175 S.E. 676 (1934) (decided under former Civil Code 1910, § 2258).

- Since the object of service is to give notice and afford a hearing, it will be sufficient if made upon an agent whose character and rank are such as to afford reasonable assurance that the agent will inform the company that such process has been served. Louisville & N.R.R. v. Meredith, 194 Ga. 106, 21 S.E.2d 101 (1942) (decided under former Code 1933, § 22-1101).

An execution or process against named person, with the added words "agent for" another, is a process against the person named, and not against the principal. Georgia Power & Light Co. v. Wilson, 48 Ga. App. 764, 173 S.E. 220 (1934) (decided under former Civil Code 1910, § 2258).

- In serving the corporation by serving an officer or agent, the process must be handed to the agent personally. Leaving the process at the agent's most notorious place of abode is not good service. Clements v. Sims T.V., Inc., 105 Ga. App. 769, 125 S.E.2d 705 (1962) (decided under former Code 1933, § 22-1101).

It is mandatory that service upon the agent be personal. If follows that leaving a copy of the petition and process at the "most notorious place of abode" of the agent of the corporation constitutes no service upon the corporation. Georgia Power & Light Co. v. Wilson, 48 Ga. App. 764, 173 S.E. 220 (1934) (decided under former Civil Code 1910, § 2258).

- In one sense, all service of process on corporations is either substituted or constructive, for the reason that the corporate entity is incapable of service other than through persons who represent it; but for practical purposes, service on the proper officer or agent of the corporation is considered personal, rather than substituted or constructive, service. Clements v. Sims T.V., Inc., 105 Ga. App. 769, 125 S.E.2d 705 (1962) (decided under former Code 1933, § 22-1101).

- Service was perfected on a corporation, otherwise doing business within the jurisdiction of the court, by serving an agent who is employed to solicit business and perform other duties for the corporation, such agent is an agent for service. Southern Bell Tel. & Tel. Co. v. Jackson, 102 Ga. App. 699, 117 S.E.2d 550 (1960) (decided under former Code 1933, § 22-1101).

- A casual salaried laborer with neither discretionary power nor managing authority, hired as a service station attendant and working solely in that capacity, is not an agent in the sense contemplated by former Code 1933, § 22-403. Thoni Oil Co. v. Tinsley, 140 Ga. App. 887, 232 S.E.2d 162 (1977) (decided under former Code 1933, § 22-403).

- Although a corporation, at its own expense, provided group insurance through certain master group policies, and, at its own expense, provided assistance to its employees in presenting their claims and collecting their benefits under such policies, the employees of such corporation rendering such assistance were not for that reason, agents of the insurance company upon whom process could be legally served. Blaylock v. Prudential Ins. Co. of Am., 84 Ga. App. 641, 67 S.E.2d 173 (1951) (decided under former Code 1933, § 22-1101).

In a tort action brought because of the alleged negligent construction and maintenance of rented property belonging to a corporation, the agent of the corporation in charge of its office in that county, and also in charge of the renting, repairing, and keeping in repair of such property, is the agent of the company to be served in that county, and the superior court of such county has jurisdiction of the suit. Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683, 9 S.E.2d 773 (1940) (decided under former Code 1933, § 22-1101).

- Because a corporation failed in its burden of showing that the person who actually received service of process was not authorized to accept service on behalf of its registered agent, the service was properly found to be sufficient. Thus, the trial court was not required to dismiss the action based on a lack of sufficient service of process. Holmes & Co. v. Carlisle, 289 Ga. App. 619, 658 S.E.2d 185 (2008).

Reasonable Diligence

Who is authorized to determine whether agent can be found.

- Persons required to determine whether the "registered agent cannot with reasonable diligence be found at the registered office," are those persons authorized to serve the "summons and complaint" - those designated by the applicable statute. Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977) (decided under former Code 1933, § 22-403).

The person designated by statute, and not the plaintiff, is to determine whether the defendant corporation or its registered agent can be found at the registered address. Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977) (decided under former Code 1933, § 22-403).

- Although the record does not affirmatively reveal full compliance with the statutory provisions as to reasonable diligence, absent a contrary showing by the defendant, the court will presume the regularity of the proceedings. Stesu, Inc. v. Roger Toole Drywall, Inc., 141 Ga. App. 636, 234 S.E.2d 102 (1977) (decided under former Code 1933, § 22-403).

- Service held defective because deputy marshal attempting service made no attempt to serve the defendant corporation or the registered agent at the registered address, after the summons had issued - which is the date the determination must be made as to whether defendant or its agent is at the registered location, and should be made by one designated in the statute. Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977) (decided under former Code 1933, § 22-403).

- In a personal injury action, because plaintiff failed to investigate fully and correctly identify the parent corporation of a corporation which leased and occupied the premises in question, a default judgment would be set aside because of the resulting ambiguity created by naming the wrong defendant or improperly serving the named defendant. Charming Shoppes of Del., Inc. v. Parrish, 214 Ga. App. 729, 448 S.E.2d 781 (1994).

- Even assuming that the plaintiff exercised the requisite diligence in attempting to serve the defendant's registered agent and was thereby entitled to employ service by mail on the corporate secretary, the plaintiff offered no admissible evidence that this was, in fact, accomplished since plaintiff offered no testimony or transcript of any proceeding and plaintiff's evidence of service was an unauthenticated document purporting to indicate that a law office attempted a certified mailing of some article to the corporate secretary at a specified cost. Payne v. Mimms Enters., Inc., 234 Ga. App. 199, 505 S.E.2d 520 (1998).

- Because the plaintiff presented sufficient evidence that, after filing its complaint, it provided the sheriff's office with the defendant's correct address, and a few weeks later, contacted the sheriff's office to inquire whether service had been completed upon the defendant and learned that repeated service attempts were unsuccessful, evidence of reasonable diligence supporting the denial of a motion to set aside a default judgment was found; moreover, unlike O.C.G.A. § 9-11-4(e)(1), service via overnight delivery was supported and did not violate the defendant's due process rights. B&B Quick Lube, Inc. v. G&K Servs. Co., 283 Ga. App. 299, 641 S.E.2d 198 (2007).

- Under O.C.G.A. § 14-2-504, a registered agent must receive service of process on behalf of the company, but the statute does not require an agent to perform any particular acts in receiving service of process. Because Georgia law is silent on the duty that a registered agent owes to an LLC, a registered agent simply owes a duty of reasonable care in receiving service of process. Azalea House LLC v. Nat'l Registered Agents, Inc., F.3d (11th Cir. Feb. 25, 2011)(Unpublished).

Former Code 1933, § 22-403 and Ga. L. 1966, p. 604 (see now O.C.G.A. §§ 14-2-504 and9-11-4(d)(1)) were cumulative and alternative methods of perfecting service upon domestic corporations, except former Code 1933, § 22-403 could be used notwithstanding any inconsistent provisions of Ga. L. 1966, p. 604 (see now O.C.G.A. § 9-11-1 et seq.). Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977) (decided under former Code 1933, § 22-403).

Former Code 1933, § 22-403 (see now O.C.G.A. § 14-2-504) was designed to supplement Ga. L. 1966, p. 604 (see now O.C.G.A. § 9-11-4(d)) by adding the registered agent to the list of those who may be served and thus virtually to eliminate the possibility of a domestic corporations evading service of process. O'Neal Constr. Co. v. Lexington Developers, Inc., 240 Ga. 376, 240 S.E.2d 856 (1977) (decided under former Code 1933, § 22-403).

- Because it was shown that defendant corporation had vacated the addresses it had given the Secretary of State for both its principal and registered offices, plaintiff was authorized to effect substituted service under O.C.G.A § 9-11-4(d)(1) without making any additional efforts to effect personal service. Daly's Driving Sch., Inc. v. Scott, 238 Ga. App. 443, 519 S.E.2d 1 (1999).

This section has been held to embrace foreign corporations. Hirsch v. Shepherd Lumber Corp., 194 Ga. 113, 20 S.E.2d 575, answer conformed to, 67 Ga. App. 474, 21 S.E.2d 110 (1942) (decided under former Code 1933, § 22-1101).

A foreign corporation doing business in this state is subject to the jurisdiction of the courts of this state, if it can be served with process, and Georgia law provides for the service of process upon foreign as well as domestic corporations. Louisville & N.R.R. v. Meredith, 66 Ga. App. 488, 18 S.E.2d 51 (1941), aff'd, 194 Ga. 106, 21 S.E.2d 101 (1942) (decided under former Code 1933, § 22-1101).

A foreign corporation doing business in this state and having agents located therein for this purpose may be sued and served in the same manner as domestic corporations upon any transitory cause of action whether originating in this state or otherwise; and it is immaterial whether the plaintiff be a nonresident or a resident of this state, provided the enforcement of the cause of action would not be contrary to the laws and policy of this state. Southern Ry. v. Parker, 194 Ga. 94, 21 S.E.2d 94 (1942) (decided under former Code 1933, § 22-1101).

Having an agent within a county of such kind as could be served is alone sufficient to give jurisdiction of the nonresident corporation if service upon the agent is had, and maintaining an office within the county by the corporation is not necessary in such a case. The rule is the same as to both resident and nonresident corporations except that in the case of resident corporations, jurisdiction of the corporation in contract actions requires that it have an agent transacting business and that it maintain an office. Swift & Co. v. Lawson, 95 Ga. App. 35, 97 S.E.2d 168 (1957) (decided under former Code 1933, §§ 22-1101 and 22-1102).

When a corporation is engaged in the exercise of its franchises in a state other than that of its creation, it cannot be said that the corporate entity is confined to its principal office in the latter; in fact, for the purpose of being sued, in personam, it may be treated as a resident of each state in which it does business under state laws. Louisville & N.R.R. v. Meredith, 66 Ga. App. 488, 18 S.E.2d 51 (1941), aff'd, 194 Ga. 106, 21 S.E.2d 101 (1942) (decided under former Code 1933, § 22-1101).

If foreign corporation is not subject to equitable action in county because it has no agent in that county, it cannot be made subject to the jurisdiction of the court because an agent of the corporation may come into the county and there be personally served with process. Modern Homes Constr. Co. v. Mack, 218 Ga. 795, 130 S.E.2d 725 (1963) (decided under former Code 1933, § 22-1101).

- The reference to other methods of service in former Code 1933, § 56-1204 (see now O.C.G.A. § 33-4-4) included that of serving "any agent" of the company as provided in by former Code § 22-1101 (see now O.C.G.A. § 14-2-504). Aetna Cas. & Sur. Co. v. Sampley, 108 Ga. App. 617, 134 S.E.2d 71 (1963) (decided under former Code 1933, § 22-1101).

- Service upon the designated agent of a German corporation's wholly-owned American subsidiary did not constitute adequate service of process upon the German corporation. May v. Volkswagen of Am., Inc., 125 F.R.D. 521 (N.D. Ga. 1989) (decided under former § 14-2-62).

Neither O.C.G.A. § 9-11-4, the general service of process statute, nor O.C.G.A. § 14-2-504 authorized service on an agent of a domestic subsidiary as constituting proper service on a foreign parent corporation. Rovema Verpackungsmaschinen v. Deloache, 232 Ga. App. 212, 500 S.E.2d 647 (1998).

- Legal service may be perfected on a defendant railroad corporation which does business in this state, i.e., has tracks in the state, by serving its soliciting freight agent who has an office in the county in which the present suit is filed and service perfected, although the defendant does no business in the county other than that of the soliciting of freight. Louisville & N.R.R. v. Meredith, 66 Ga. App. 488, 18 S.E.2d 51 (1941), aff'd, 194 Ga. 106, 21 S.E.2d 101 (1942) (decided under former Code 1933, § 22-1101).

- In five consolidated aviation wrongful death cases and one aviation property case, the trial court properly denied the motion to dismiss filed by an out-of-state damper part seller on the ground of insufficient service of process as personal service upon the seller's registered agent was appropriate under both the seller's state of Delaware and Georgia law. Vibratech, Inc. v. Frost, 291 Ga. App. 133, 661 S.E.2d 185 (2008), overruled on other grounds by Bowen v. Savoy, 308 Ga. 204, 839 S.E.2d 546 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 22-403 and former Code Section 14-2-62, which were repealed by Ga. L. 1988, p. 1070, § 1, effective July 1, 1989, are included in the annotations for this Code section.

Only feasible method for charging corporations with crimes is through the return of an indictment by a grand jury. 1970 Op. Att'y Gen. No. 70-155 (decided under former Code 1933, § 22-403).

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, §§ 1882 et seq., 2083 et seq.

- 19 C.J.S., Corporations, § 802 et seq.

- What suits at domicil of corporation involving corporate stock or rights and obligations incident thereto are in rem jurisdiction which may rest upon constructive service of process against nonresidents, 145 A.L.R. 1393.

Requisites of service upon, or delivery to, designated public official, as a condition of substituted service of process on him, 148 A.L.R. 975.

Nonresident director or officer of domestic corporation as subject to constructive service of process in suit or proceeding to enforce duty or obligation to corporation, its stockholders, or creditors, 148 A.L.R. 1251.

Who is "managing agent" of domestic corporation within statute providing for service of summons or process thereon, 71 A.L.R.2d 178.

Who has possession, custody, or control of corporate books or records for purposes of order to produce, 47 A.L.R.3d 676.

Right of member, officer, agent, or director of private corporation or unincorporated association to assert personal privilege against self-incrimination with respect to production of corporate books or records, 52 A.L.R.3d 636.

Availability of sole shareholder's Fifth Amendment privilege against self-incrimination to resist production of corporation's books and records - modern status, 87 A.L.R. Fed. 177.