Stutts v. Miller


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Docket Number: 2008-CA-01866-SCT
Linked Case(s): 2008-CA-01866-SCT

Supreme Court: Opinion Link
Opinion Date: 03-18-2010
Opinion Author: Carlson, P.J.
Holding: Affirmed

Additional Case Information: Topic: Personal injury - Failure to serve process - M.R.C.P. 4(h) - Good cause
Judge(s) Concurring: Randolph, Lamar, Chandler and Pierce, JJ.
Judge(s) Concurring Separately: Pierce, J., Specially Concurs with Separate Written Opinion Joined by Randolph, Lamar and Chandler, JJ.
Non Participating Judge(s): Dickinson, J.
Dissenting Author : Kitchens, J., with separate written opinion
Dissent Joined By : Waller, C.J., and Graves, P.J.
Procedural History: Dismissal
Nature of the Case: CIVIL - PERSONAL INJURY; Dismissal

Trial Court: Date of Trial Judgment: 10-06-2008
Appealed from: Alcorn County Circuit Court
Judge: James L. Roberts
Disposition: The Circuit Court dismissed the complaint with prejudice due to Carla Stutts’s failure to serve the defendants with process within 120 days, as required by Mississippi Rule of Civil Procedure 4(h), and the expiration of the applicable statute of limitations.
Case Number: CV07-000483RA

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: CARLA STUTTS




THOMAS L. SWEAT, JR.



 
  • Appellant #1 Reply Brief

  • Appellee: JANICE MILLER AND JACI MILLER DINETIA BROOKE NEWMAN, ROBERT F. STACY, JR.  

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    Topic: Personal injury - Failure to serve process - M.R.C.P. 4(h) - Good cause

    Summary of the Facts: Carla Stutts filed a complaint for damages against Janice Miller and Jaci Miller due to an automobile accident, which Stutts asserts was a result of Jaci Miller’s negligent driving. The circuit court dismissed the complaint with prejudice due to Carla Stutts’s failure to serve the defendants with process within 120 days and the expiration of the applicable statute of limitations. Stutts appeals.

    Summary of Opinion Analysis: M.R.C.P. 4(h) provides that a complaint will be dismissed only if the plaintiff cannot show good cause for failing to serve process within 120 days. 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. Stutts argues that her efforts to locate and serve process on the Millers constituted good cause, and she offered ten affidavits in support of her argument. Stutts’s attorney stated in his affidavit that he sent a process server to the address he had for the Millers in late September or early October 2007, only to learn that the Millers no longer lived there. Stutts’s attorney also stated that he had checked local telephone directories for addresses or telephone numbers in early October 2007 to no avail, and he had contacted young men around the age of Jaci Miller for contact information in the fall of 2007, but also to no avail. The affidavits of two Alcorn County constables, an employee of the Alcorn County Tax Collector’s Office, a former Alcorn County supervisor, an Alcorn County Justice Court employee, a former Alcorn County deputy sheriff, and a Kossuth Middle School teacher, all provided essentially the same information. All seven of the persons contacted were unaware of the information requested other than the address where Stutts’s attorney previously had attempted service on the Millers. The affidavit of the secretary for Stutts’s attorney related the same attempts to obtain information related to the Millers. Also, the attorney’s secretary stated, without providing a date for this action, that she had checked the land rolls for Alcorn County and had found no real property owned by the Millers, and she had checked debt-collection programs designed to locate residences and employment of individuals without success in the fall of 2007. The efforts related in these affidavits occurred in either September or October 2007, or after the expiration of the 120-day period. Some of the affidavits simply referenced the fall of 2007, but none of the affidavits related efforts to locate or serve process on the Millers in the winter months leading to the expiration of the 120 days. Although Stutts argues that her efforts to locate the Millers were not only diligent, but exhaustive, she failed to request even one extension of time from the trial court. It would be prudent for a diligent plaintiff who files his or her complaint only four days before the running of the applicable statute of limitations at least to file a motion for additional time to serve process if it appears that service of process will not be accomplished within the 120-day period provided by Rule 4(h). Thus, the trial judge did not abuse his discretion in finding that Stutts had failed to show good cause for not timely serving the Millers. Furthermore, although a dismissal for failure to show good cause why service was not effected within the 120-day period pursuant to Rule 4(h) is without prejudice, the trial court correctly dismissed this case with prejudice. Stutts did not serve the Millers until January 24, 2008, six days after the expiration of the 120-day period, on January 18, 2008. On this date, the statute of limitations resumed running and expired on January 22, 2008, before the Millers were served.


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