United States Court of Appeals,

Eleventh Circuit.

No. 94-8554

Non-Argument Calendar.

Paul MORRIS, Plaintiff-Appellant,

v.

Michael Ray HAREN, Defendant, Cross-Defendant-Appellee,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant, CrossClaimant-Appellee.

May 19, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:92-01817-CV-RHH), Robert L. Vining,

Jr., Chief Judge.

Before KRAVITCH, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

Paul Morris appeals from the district court's judgment

dismissing his suit against Michael Ray Haren for lack of

jurisdiction. We affirm.

Morris originally brought suit in Georgia state court. On

April 20, 1992, after beginning the trial, Morris announced in

court that he intended to dismiss his case. Although this

announcement ended the trial, Morris did not file a written

dismissal with the state court until April 27, 1992. Morris

refiled his claim in federal district court in July 1992; however,

service of process was not obtained on Haren until October 27,

1992. The district court dismissed the case sua sponte for lack of

jurisdiction, finding that Haren was not timely served within the

period prescribed by Georgia law. Morris makes several challenges
to the district court's judgment, each of which we reject.

I.

 Morris first argues that the district court misconstrued the

applicable statute governing the time period for renewing suits

that have been discontinued or dismissed. Georgia's statute

states:

When any case has been commenced in either a 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, if permitted by the

federal rules of civil procedure, in a federal court either

within the applicable period of limitations or within six

months after the discontinuance or dismissal, whichever is

later....

O.C.G.A. § 9-2-61(a) (Supp.1994) (emphasis added). Morris contends

that April 27, 1992, is the date that begins the six-month period

because that is the date the written dismissal was filed; Haren

asserts that the relevant date is April 20, the date Morris ended

the trial by announcing his intention to discontinue prosecution of

the case. We review de novo questions of statutory interpretation.

We disagree with Morris's argument that the term

"discontinuance" has no independent meaning in the statute and his

assertion that we should therefore look only to the date of the

filing of the written dismissal. Because section 9-2-61(a)

expressly provides for the "discontinuance or dismissal" (emphasis

added) of a case, Morris's construction would ignore the plain

meaning of the statute and read out one of the statutory terms.

United States v. Myers, 972 F.2d 1566, 1572 (11th Cir.1992)

("Courts should give statutory language its ordinary, usual, and

plain meaning."), cert. denied, --- U.S. ----, 113 S.Ct. 1813, 123

L.Ed.2d 445 (1993); Butterworth v. Butterworth, 227 Ga. 301, 180
S.E.2d 549, 552 (1971) ("[A]ll the words of the legislature,

however numerous, ought to be preserved.") (citation omitted).

Thus, we hold that discontinuance and dismissal refer to two

different occurrences and that Haren discontinued his case on April

20, 1992.

Morris argues that even if we hold that he discontinued his

suit on April 20, he is entitled under section 9-2-61(a) to use the

date of dismissal to start the six-month period because it is the

"later" date. Under his interpretation, the time period expires

upon one of three dates, "whichever is later": (1) the expiration

of the statute of limitations; (2) six months from the date of

discontinuance; or (3) six months from the date of dismissal.

Such a construction is contrary to the plain language of the

statute. The plain meaning of the term "either" is a reference to

two choices. See Random House Unabridged Dictionary 625 (2d ed.

1993). Thus, the plain meaning of the phrase "whichever is later"

refers to the later date of two dates: (1) the end of the statute

of limitations; or (2) six months after the date of discontinuance

or dismissal. We also agree with the district court that, where,

as here, the discontinuance of a case precedes the filing of the

written dismissal, the six-month period begins to run on the

earlier date of discontinuance. Otherwise, the potential for abuse

or manipulation of the statutory time period would exist.

Therefore, we hold that the relevant date in this case to begin

running the six-month period under section 9-2-61(a) is April 20,

1992, the date Morris discontinued his lawsuit.

II.
 Next, Morris argues that the district court abused its

discretion in finding that he did not exercise due diligence in

serving process. In this case, Morris timely filed his complaint

with the district court within the six-month period of section 9-2-

61(a), but did not serve Haren within that period. Under Georgia

law, service that is perfected after the statute of limitations has

run and more than five days after the complaint was filed will

relate back to the date of filing only if the plaintiff "diligently

attempted to perfect service." Cambridge Mutual Fire Insurance Co.

v. City of Claxton, 720 F.2d 1230, 1233 (11th Cir.1983). For the

reasons stated in the district court's order, we hold that the

district court did not abuse its discretion in finding that the

untimely service was the result of Morris's failure to use due

diligence in serving Haren within the statutory time period. See,

e.g., id. at 1233-1234; Walker v. Hoover, 191 Ga.App. 859, 383

S.E.2d 208, 209 (1989).

III.

We also reject Morris's assertion that the district court's

failure to hold an evidentiary hearing was an abuse of discretion

or denial of due process.

IV.

The judgment of the district court is AFFIRMED.