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O'Hara v. City of Hattiesburg

Court of Appeals of Mississippi

March 21, 2017

SHAWN RICHARD O'HARA APPELLANT
v.
CITY OF HATTIESBURG, MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 02/027/2015

         FORREST COUNTY CIRCUIT COURT HON. ROGER B. HELFRICH, TRIAL JUDGE

          ATTORNEY FOR APPELLANT: SHAWN RICHARD O'HARA (PRO SE)

          ATTORNEYS FOR APPELLEE: R. LANE DOSSETT L. CLARK HICKS JR.

          BEFORE GRIFFIS, P.J., BARNES AND WILSON, JJ.

          WILSON, J.

         ¶1. On February 7, 2014, Shawn O'Hara was walking across South 28th Avenue in Hattiesburg when the street suddenly caved in and his left leg went under the street to his knee. O'Hara managed to avoid oncoming traffic and crawl out of the road, and an ambulance transported him to the emergency room.[1] Almost a year later, O'Hara filed suit against the City of Hattiesburg in the Forrest County Circuit Court. He alleges that he is entitled to recover $300, 000 in actual damages, including past and future medical expenses, pain and suffering damages, and $280, 000 in lost earnings on his third motion picture, Dixie Lady, the film's production apparently having been derailed by his injuries. O'Hara also demands $24, 700, 000 in punitive damages.

         ¶2. The circuit court dismissed O'Hara's complaint without prejudice for insufficient service of process and failure to provide proper pre-suit notice under the Mississippi Tort Claims Act (MTCA). The court also denied O'Hara's subsequent motion for reconsideration. For the reasons that follow, we affirm the dismissal of the action. Additional facts are discussed as necessary in the course of our analysis.

         DISCUSSION

         I. Insufficient Service of Process

         ¶3. Mississippi Rule of Civil Procedure 4(d)(7) provides that service of process on a municipal corporation shall be "by delivering a copy of the summons and complaint to the mayor or municipal clerk." O'Hara initially served the city attorney's wife and later served the city attorney. Neither attempt at service satisfied Rule 4(d)(7).

         ¶4. However, the circuit court dismissed the complaint for insufficient service of process on March 2, 2015, only a little over three weeks after the complaint was filed. Rule 4(h) provides that a plaintiff has 120 days in which to serve the defendant. "[U]ntil that 120-day period has expired, any attempt to seek dismissal on the grounds of defective service clearly would be premature." McGinnis v. Shalala, 2 F.3d 548, 551 (5th Cir. 1993) (applying then- Federal Rule of Civil Procedure 4(j), subsequently relettered as Rule 4(m)); accord State Farm Fire & Cas. Co. v. Smith, 39 So.3d 1172, 1174 (Ala. Civ. App. 2009) (applying Alabama Rule of Civil Procedure 4(b) and holding that a trial court cannot dismiss a complaint for insufficient service within the 120-day period permitted for service).

          ¶5. The record indicates that O'Hara served both the mayor and the "acting city clerk" on April 30, 2015, only eighty-three days after he filed suit. O'Hara thereby satisfied the requirements of Rule 4. Although he effected service after the circuit court's order dismissing the case, his motion for reconsideration was pending, and he was still well within the 120-day period allowed by Rule 4. The prior order dismissing the case was premature to the extent it was based on insufficient service of process. Therefore, we must determine whether dismissal was proper because O'Hara failed to provide proper pre-suit notice under the MTCA.

         II.Insufficient ...


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