James H. Wilson III sued Hearos, LLC in Georgia state court, alleging he suffered permanent hearing loss at a shooting range because of Hearos’s faulty earplugs. Wilson v. Hearos, LLC, No. 23-12550 (11th Cir. Feb. 18, 2025). A non-party, Protective Industrial Products, Inc. (PIP), removed that suit to federal court, where it was dismissed as time-barred under Georgia’s service-of-process law. Wilson appealed, raising two issues: (1) whether removal by a non-party was a jurisdictional or a waivable, procedural defect, and (2) whether it was error to apply Georgia’s service-of-process law instead of the federal equivalent. The Eleventh Circuit affirmed on both points.
Wilson sued Hearos almost exactly two years after he suffered the alleged injury. But his first summons was rejected by the company Wilson believed was Hearos’s registered agent. Wilson then unsuccessfully attempted to serve this same summons on Hearos’ parent, PIP. Finally, Wilson got a second summons, on which he changed the case caption to list PIP as an additional defendant, and he properly served that on PIP more than two years after the alleged injury. At the time PIP sought to remove the case to federal court, the complaint still listed only Hearos as the defendant. Wilson had not amended the complaint, and Hearos had not been successfully served.
After the case was removed, Hearos and PIP jointly moved to dismiss for insufficient process, insufficient service of process, and failure to state a claim. Wilson then successfully served Hearos, so PIP and Hearos dropped their argument as to insufficient service. Wilson did not move to remand to state court.
The district court denied the motion to dismiss as moot for PIP because it was a non-party. The court then ruled that PIP’s improper removal was a waivable, procedural defect, rather than a non-waivable, jurisdictional defect. Because Wilson did not move to remand the case, the district court retained jurisdiction.
On the merits, the district court applied Georgia law and determined that Wilson’s claims were time-barred. Georgia law requires a plaintiff to exercise “the greatest possible diligence” to serve the defendant where service is attempted after the statute of limitations runs and the defendant notifies the plaintiff of a service problem. In the district court’s view, Wilson did not meet this exacting standard because he did not accomplish proper service until 117 days after the statute of limitations expired and 41 days after Hearos raised its insufficiency-of-service defense.
On appeal, Wilson argued “that an improper removal by a non-party strips the district court of subject matter jurisdiction and requires remand to state court at any time during the proceedings.” In an opinion authored by Judge Lagoa, the Eleventh Circuit rejected this argument, reasoning that 28 U.S.C. § 1447 provides only two bases for a remand: (1) lack of subject matter jurisdiction and (2) some other defect raised by a party within thirty days of removal. The first basis was not applicable, as there was complete diversity and a sufficient amount in dispute. Nor was the second, even though there was a plain defect—the case was removed by non-party PIP—because Wilson did not move to remand the case within the 30-day period required by law. Wilson’s contention that the faulty removal was jurisdictional rather than procedural also failed. Analogizing to its treatment of improper forum-defendant removal, the Eleventh Circuit concluded that non-party removal “is a waivable defect” separate and distinct from “more substantive” defects like a lack of complete diversity. Because Wilson did not raise the procedural defect within the allotted thirty days, he waived this objection. The district court, then, correctly determined that the faulty, non-party removal did not divest it of jurisdiction.
The Eleventh Circuit next turned to the merits. In Wilson’s view, Federal Rule of Civil Procedure 4(m) governed once PIP removed the dispute to federal court. This would have given him 90 days from the date of removal to perfect service on Hearos. But the district held that Georgia’s service-and-diligence rule applied instead. Pursuant to O.C.G.A. § 9-11-4(c), service after the statute of limitations has run can relate back to the filing of the complaint if the plaintiff exercised diligence in perfecting service. When the defendant asserts service was insufficient after the statute of limitations has run, the plaintiff must show she exercised “the greatest possible diligence.”
The success of Wilson’s argument depended on the Eleventh Circuit casting Georgia’s service-and-diligence rule as procedural rather than substantive. But the panel did not oblige. Georgia courts have interpreted their service of process statute as an “integral part[] of the state statute of limitations,” and state statutes of limitations are substantive law. Because federal courts sitting in diversity “must apply the controlling substantive law of the state,” O.C.G.A. § 9-11-4(c) and not Federal Rule 4(m) governed the service requirements. Wilson, unable to show the requisite diligence in accomplishing service, thus failed to make timely service. As such, his claims were time barred.
Wilson demonstrates the intricacies involved in negotiating two dichotomies: federal and state on the one hand; substantive and procedural on the other. The case also shows that in navigating these dichotomies, as ever, the details make all the difference.