                                                            [DO NOT PUBLISH]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



                                            4
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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