Kingston v. Splash Pools of Miss., et al.
Docket Number: | 2005-CA-02257-COA | |
Oral Argument: | 03-20-2007 | |
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Court of Appeals: |
Opinion Link Opinion Date: 05-08-2007 Opinion Author: CHANDLER, J. ROBERTS AND CARLTON, JJ. Holding: Affirmed |
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Additional Case Information: |
Topic: Personal injury - Service of process - Good cause - M.R.C.P. 4(h) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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Trial Court: |
Date of Trial Judgment: 10-20-2005 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: Samac Richardson Disposition: DISMISSED Case Number: 2002-0356 |
Party Name: | Attorney Name: | |||
Appellant: | WILLIAM KINGSTON |
T. JACKSON LYONS
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Appellee: | SPLASH POOLS OF MISSISSIPPI, INCORPORATED AND DONNA N. PARKER WITHROW, JOINTLY AND SEVERALLY | MONA VIDIN PATEL JAMES D. HOLLAND |
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Topic: | Personal injury - Service of process - Good cause - M.R.C.P. 4(h) |
Summary of the Facts: | William Kingston filed suit against Splash Pools of Mississippi, Inc. and its corporate manager after one of its employees allegedly attacked and beat Kingston while Kingston was a patron. The defendants moved to dismiss the suit, and the court granted the motion due to untimely service of process. Kingston appeals. |
Summary of Opinion Analysis: | Kingston argues that the court based its ruling on Kingston’s failure to file a motion for additional time or that the court, at the very least, implied that the failure to request additional time was required. Failure to serve process within 120 days will only cause a complaint to be dismissed if the plaintiff cannot show good cause for failing to meet the deadline. Under M.R.C.P. 4(h), the plaintiff bears the burden of establishing good cause. If the plaintiff is unable to meet the 120-day deadline, a diligent plaintiff should file a motion for additional time to serve process within the 120-day time period. Such diligence would support an allegation that good cause exists for failure to serve process timely. The motion for additional time must be filed before the expiration of the 120-day time period. Kingston did not file such a request before the 120-day time limit lapsed. No evidence was presented to the court to establish good cause beyond broad assertions of diligence at the hearing on the motion to dismiss. Therefore, nothing in the record supports Kingston’s argument that the lower court either mandated or implied that filing a motion to request additional time was required. Kingston also argues that the court erred by not considering statements made by his attorney that diligent efforts were made to effectuate service of process. While Kingston or his attorney may have had personal knowledge of the server’s attempts, the record is void of any detail to support such an assertion. The court cannot rely solely on an inference based upon the unsworn statement of an attorney made during argument at a hearing without any evidence to support his assertion of fact. A plaintiff attempting to establish good cause must show 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. Because the record is void of any example of diligent effort made to serve process, good cause has not been shown. |
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