OF JUDGMENT: 02/027/2015
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.
GRIFFIS, P.J., BARNES AND WILSON, JJ.
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. 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.
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.
Insufficient Service of Process
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).
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
¶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.