Montgomery v. SmithKline Beecham Corp.
| Docket Number: | 2004-CA-00091-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 02-24-2005 Opinion Author: Dickinson, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Service of process - M.R.C.P. 4(h) - Good cause Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : Graves, J. Dissenting Author : Easley, J. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 01-05-2004 Appealed from: Lee County Circuit Court Judge: Thomas J. Gardner Disposition: Entered a final judgment granting the Defendants’ motions to dismiss and dismissing the case with prejudice as to all defendants was signed by the trial judge on January 5, 2004, and entered of record on January 7, 2004. Case Number: CV01-301(G)L |
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| Party Name: | Attorney Name: | |||
| Appellant: | Shannon Montgomery and John David Montgomery as the Lawful Heirs of David E. Montgomery, Deceased |
JONATHAN THOMAS CRUMP |
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| Appellee: | SmithKline Beecham Corporation f/k/a GlaxoWellcome, Inc., d/b/a Glaxosmithkline; Edward Gore, M.D.; North Mississippi Medical Center; North Mississippi Family Medical Clinic, Inc., d/b/a Chickasaw Family Medical Clinic; and Wal-Mart Stores, Inc. | JOSIAH DENNIS COLEMAN ROBERT K. UPCHURCH DAVID W. UPCHURCH JOHN G. WHEELER DONNA M. BARNES R. BRITTAIN VIRDEN CHARLES S. HEWINS |
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| Topic: | Medical malpractice - Service of process - M.R.C.P. 4(h) - Good cause |
| Summary of the Facts: | Following the death of David Montgomery allegedly as a result of taking Allopurinol, Shannon and John Montgomery filed suit against SmithKline Beecham Corp., Dr. Edward Gore, North Mississippi Medical Center, North Mississippi Family Medical Clinics, Inc. d/b/a Chickasaw Family Medical Clinic, and Wal Mart. Plaintiffs did not immediately attempt to have process served on the defendants but instead filed a motion representing to the court that additional time was needed for service of process. An order granting an additional 120 days from the date of entry of the order was signed on February 12, 2002, but the order was not entered of record until April 23, 2002. On July 22, 2002, neither counsel for plaintiffs had served process on the defendants. Plaintiffs filed another motion for additional time (60 days) for service of process. An order was entered on July 22, 2002, granting the requested extension and ordering that the order relate back to the court’s order of February 12, 2002. However, as of September 29, 2002, (sixty days later), process had not been served, and no further extension had been requested. On December 3, 2002, counsel for plaintiffs filed their third motion for additional time to serve process. An ordered was signed and entered on December 3, 2002, granting an additional 30 days from the entry of the order to effectuate service of process on the defendants and purporting to relate back to the court’s prior order of July 22, 2002. As of December 30, 2002, all defendants had been served with process. Dr. Gore, North Mississippi Medical Center, Inc., and North Mississippi Medical Clinics, Inc. filed a motion to dismiss based upon insufficiency of process and insufficiency of service of process with 120 days after the filing of the complaint, expiration of the statute of limitations, and failure to state a claim upon which relief can be granted. SmithKline Beecham filed its motion to dismiss on similar grounds, as did Walmart. The judge granted the defendants’ motions to dismiss, and the plaintiffs appeal. |
| Summary of Opinion Analysis: | The strict language of M.R.C.P. 4(h) suggests that good cause can only be shown after the expiration of the 120-day period and then, only to demonstrate why such service was not made within that period. The plaintiff must appear and attempt to show good cause why process was not served within the 120-day period for service. Good cause can never be demonstrated where plaintiff has not been diligent in attempting to serve process. If it appears process cannot be served within the 120-day period, 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. Here, the plaintiffs’ first motion for additional time was filed within the 120-day period, the second motion was filed within the 120-day extended period, and the third motion was filed after expiration of the second extension. The justification offered to the trial court by plaintiffs’ counsel for the first extension of time was that counsel of a newly associated firm made several unsuccessful attempts to confer with the clients and that counsel anticipated an amended complaint to simplify the issues. This fails to demonstrate good cause as required by Rule 4(h). The justification for the second motion was that the newly associated firm had withdrawn but not returned the file and the firm who took the file back had no reason to know that service had not been made. However, the fact is that the former firm never lost possession of the file, and the firm has been counsel of record in this matter since its inception. The justification for the third motion was the untimely death of one of the attorneys in the firm. However, there is no evidence or indication that plaintiffs used reasonable diligence to serve process prior to the attorney’s death. Since plaintiffs have failed to demonstrate good cause why process was not timely served, the dismissal of the action was proper. |
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