OF JUDGMENT: 10/06/2017
FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH JUDGE.
ATTORNEYS FOR APPELLANT: PAUL MANION ANDERSON CORY NATHAN
FERRAEZ SAMUEL STEVEN McHARD MARCUS ALAN McLELLAND.
ATTORNEYS FOR APPELLEES BRADLEY ADAM HAYS MICHAEL D. GOGGANS
CHRISTOPHER OWEN MASSENBURG.
On September 3, 2015, Cynthia Holland was involved in a motor
vehicle accident with an employee of the Mississippi
Department of Rehabilitation Services ("MDRS").
Pursuant to the Mississippi Tort Claims Act
("MTCA"), on August 15, 2016, Holland served MDRS
with a notice of complaint and thereafter waited ninety-five
days before filing her complaint. Holland filed suit in the
Forrest County Circuit Court on December 2, 2016, against
multiple defendants, including MDRS. Holland then hired a
process server, who failed to "properly serve" the
Attorney General's Office within 120 days pursuant to
Mississippi Rule of Civil Procedure 4(d)(5). After learning
about the process server's error, Holland served MDRS
sixteen days after the 120-day deadline required by Rule 4(h)
and immediately filed a motion for determination that service
was proper upon MDRS or alternatively for an extension of
time to serve process.
MDRS filed a motion to dismiss for failure to properly serve
within 120 days of filing the complaint. In its order and
final judgment, the circuit court denied Holland's motion
and granted MDRS's motion, finding that Holland failed to
establish good cause and failed to properly serve MDRS within
120 days. The circuit court also dismissed Holland's suit
without prejudice, which Holland now appeals. Finding that
Holland properly demonstrated good cause for her failure to
serve MDRS, we reverse the circuit court's judgment.
AND PROCEDURAL HISTORY
Holland was involved in a motor vehicle accident on September
3, 2015, when her vehicle collided with a vehicle owned by
Ability Works Inc. and driven by an MDRS employee. Holland
served MDRS with her notice of complaint on August 15, 2016,
and then, pursuant to the MTCA, waited the requisite ninety
days to file her complaint. Holland filed suit in the Forrest
County Circuit Court on December 2, 2016, for damages
relating to the accident.
On March 10, 2017, Holland delivered a copy of the complaint
and summons to the MDRS office in Hattiesburg. Holland then
hired Davy Keith, an experienced process server, to serve all
the named defendants with copies of the complaint, summons
and written discovery, including MDRS, through the Attorney
General's Office. On March 27, 2017, Holland's
attorney emailed Davy Keith, inquiring about the service of
process. Keith responded the same day, stating, "[A]ll
served and aff's [affidavits] will be scanned and mailed
to you." Thereafter, MDRS filed its answer and responses
to written discovery on April 7, 2017.
On April 15, 2017, Holland's attorney received the
affidavits showing proof of service from Keith, except for an
affidavit for the Attorney General's Office on behalf of
MDRS. Holland's attorney contacted Keith to ask about the
missing affidavit, but received no response from Keith until
April 17, 2017. Keith responded, notifying Holland that due
to a computer assignment error the complaint and summons
intended for the Attorney General's Office had been
mistakenly served upon another defendant. Holland's
counsel then notified Keith to immediately serve the Attorney
General's Office, and Keith did so accordingly. Service
of process, however, at this point, was sixteen days past the
expiration of the 120-day deadline imposed by Mississippi
Rule of Civil Procedure 4(h).
The following day, on April 18, 2017, Holland's counsel
filed a "Motion for Court Determination of Proper
Service on Defendant Mississippi Department of Rehabilitation
Services or in the Alternative Motion for Additional Time to
Perfect Service." MDRS filed its motion to dismiss for
failure to serve process on May 10, 2017, and Holland filed
her response to this motion on May 15, 2017. After conducting
a hearing on the matters, the circuit court denied
Holland's motion on June 7, 2017, finding that she had
failed to serve the Attorney General's Office within the
requisite 120-day time period and that she had failed to
provide the court with a proper showing of good cause. The
circuit court entered its final judgment on October 6, 2017,
dismissing Holland's claim without prejudice, and Holland
We review the grant or denial of a motion to dismiss de novo.
Blakeney v. Warren County, 973 So.2d 1037, 1039
(¶11) (Miss. Ct. App. 2008). But when the circuit court
applies fact-based findings in its determination of good
cause or excusable neglect, the Court defers to the
discretionary ruling of the circuit court and questions
"whether there was substantial evidence supporting the
determination." Rains v. Gardner, 731 So.2d
1192, 1197 (¶18) (Miss. 1999). We will reverse a circuit
court's determination of good cause of excusable neglect
upon a finding that the circuit court abused its discretion.
Long v. Memorial Hosp. at Gulfport, 969 So.2d 35, 38
(¶5) (Miss. 2007).
The Mississippi Rules of Civil Procedure mandates that a
plaintiff serve process upon the defendants in a lawsuit
within 120 days of filing the complaint. M.R.C.P. 4(h).
"A plaintiff who does not serve the defendant within the
120 day period must either re-file the complaint before the
statute of limitations ends or show good cause for failing to
serve process on the defendant within that 120-day
period." Watters v. Stirpling, 675 So.2d 1242,
1244 (Miss. 1996). Plaintiffs bear the burden of establishing
good cause. Holmes v. Coast Transit Authority, 815
So.2d 1183, 1185 (¶7) (Miss. 2002). The burden requires
a showing of "at least as much as would be required to
show excusable neglect, as to which simple inadvertence or
mistake of counsel or ignorance of the rules usually does not
suffice." Watters, 675 So.2d at 1243. Good
cause requires the plaintiff to show that he or she made a
diligent effort to timely serve the defendant. Fulgham v.
Jackson, 234 So.3d 279, 284 (¶18) (Miss. 2017). If
the plaintiff establishes good cause based upon this
standard, dismissal is not appropriate. Collins v.
Westbrook, 184 So.3d 922, 929 (¶19) (Miss. 2016).
Holland argues that the circuit court abused its discretion
by finding that Holland had failed to sufficiently establish
good cause for her untimely service of MDRS. Holland's
untimely service was the result of a computer error which
directed Keith to serve the wrong defendant. MDRS argues that
Holland may not simply rely upon the errors of her process
server to establish good cause. But Mississippi courts have
never articulated a ban upon using a process server's
error as a basis to show good cause. To the contrary, the
Mississippi Supreme ...