OF JUDGMENT: 03/10/2017
COUNTY CIRCUIT COURT TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
ATTORNEY FOR APPELLANT: TIMOTHY ALLEN MCCOY (PRO SE)
ATTORNEY FOR APPELLEES: NO APPEARANCE
IRVING, P.J., WILSON AND TINDELL, JJ.
Timothy McCoy (McCoy) appeals the Rankin County Circuit
Court's dismissal of his complaint against Direct
Express, Anthony McCoy, and Kim Havard (collectively, the
Defendants). McCoy argues the circuit court erred by finding
that he failed to perfect service of process on any of the
Defendants within 120 days of filing his complaint.
See M.R.C.P. 4(h). Finding no error, we affirm.
On September 27, 2016, McCoy filed a pro se complaint against
the Defendants. McCoy alleged that Anthony and Havard
fraudulently used his Direct Express debit card to steal over
$6, 000 from his bank account and that Direct Express allowed
Anthony and Havard to commit the unauthorized withdrawals. On
February 1, 2017, the circuit court entered an order finding
that McCoy had failed to serve a summons and copy of the
complaint on any of the Defendants within 120 days of filing
his complaint. See id. The circuit court gave McCoy
thirty days to show good cause for his failure to effect
service. See id. On February 16, 2017, McCoy
responded to the circuit court's order. McCoy asserted
that, on October 20, 2016, he mailed the following documents
to each Defendant at the Defendant's last known address:
(1) a notice, (2) the complaint, and (3) a summons. McCoy
attached copies of these documents to his response. According
to McCoy's information, Havard resided in Mississippi
while both Anthony and Direct Express were located out of
On March 10, 2017, the circuit court entered a judgment
finding that McCoy had failed to show good cause for his
failure to timely serve the Defendants. The circuit court
therefore dismissed McCoy's complaint under Rule 4(h).
McCoy filed an unsuccessful motion for reconsideration.
Aggrieved, McCoy appeals the circuit court's judgment
dismissing his complaint.
Under Rule 4(h), a plaintiff has 120 days after filing his
complaint to perfect service of process on a defendant. Where
a plaintiff fails to perfect service within the 120-day
period and fails to show good cause for the untimely service,
Rule 4(h) directs the court to dismiss the plaintiff's
complaint without prejudice. In the present case, McCoy
argues the circuit court erroneously dismissed his complaint
because he timely effected service of process on each
McCoy attempted to serve the Defendants by mailing process to
their last known addresses. Mississippi Rule of Civil
Procedure 4(c)(3) provides a mechanism for service of process
by mail. To perfect service under Rule 4(c)(3), a plaintiff
must mail "a copy of the summons and . . . the complaint
(by first-class mail, postage prepaid) to the person to be
served, together with two copies of a notice and
acknowledgment . . . ." "The defendant, either
individually or through its agent, must then return the
acknowledgment to the plaintiff." Tucker v.
Williams, 7 So.3d 961, 965 (¶10) (Miss. Ct. App.
2009) (citing M.R.C.P. 4(c)(3)(A)). Where the person or
entity being served by mail fails to return the
acknowledgment to the plaintiff "within 20 days after
the date of mailing, service of such summons and complaint
may be made in any other manner permitted by [Rule 4]."
Here, McCoy mailed each Defendant a copy of the notice, the
summons, and the complaint. However, Rule 4(c)(3) required
McCoy to mail two copies of the notice to each Defendant. The
rule further required McCoy to mail two copies of an
acknowledgment to each Defendant. See M.R.C.P.
4(c)(3). The record contains no proof, though, that McCoy
ever mailed the Defendants an acknowledgment, and McCoy never
asserts that he did so. As a result, McCoy never received the
acknowledgment back from any of the Defendants "within
20 days after the date of mailing, " which is the final