Copiah County Sch. Dist. V. Buckner
| Docket Number: | 2010-IA-00343-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 05-19-2011 Opinion Author: Chandler, J. Holding: Reversed and rendered. |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Service of process - M.R.C.P. 4(h) - Good cause - Statute of limitations - Section 11-46-11 - Notice of claim - M.R.C.P. 6(a) - Dismissal with prejudice Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Lamar, Pierce and King, JJ. Non Participating Judge(s): Kitchens, J. Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 02-05-2010 Appealed from: Copiah County Circuit Court Judge: Lamar Pickard Disposition: The trial court granted the motion, allowing Buckner an additional 120 days to effect service. However, Buckner failed to serve either defendant until after the additional 120-day period had expired. The trial court denied the defendants' motion to set aside the order granting the extension of time and for summary judgment. Case Number: 2007-0405 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Copiah County School District and Kenneth Funches |
JOSEPH WALTER GILL, REBECCA B. COWAN |
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| Appellee: | Charles Buckner | RAMEL LEMAR COTTON | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Tort Claims Act - Service of process - M.R.C.P. 4(h) - Good cause - Statute of limitations - Section 11-46-11 - Notice of claim - M.R.C.P. 6(a) - Dismissal with prejudice |
| Summary of the Facts: | Charles Buckner filed a personal-injury action against the Copiah County School District and Kenneth Funches. Buckner failed to serve process on either defendant within the 120-day period provided by M.R.C.P. 4(h). After the running of the statute of limitations, Buckner moved for an extension of time to effect service of process. The trial court granted the motion, allowing Buckner an additional 120 days to effect service. However, Buckner failed to serve either defendant until after the additional 120-day period had expired. The trial court denied the defendants’ motion to set aside the order granting the extension of time and for summary judgment. The Supreme Court granted an interlocutory appeal. |
| Summary of Opinion Analysis: | Pursuant to M.R.C.P. 4(h), the trial court was required to dismiss Buckner’s complaint unless he showed good cause why service was not made within 120 days. The rule has also been interpreted to require that, if the defendant is not served within 120 days, the plaintiff must either refile the complaint before the statute of limitations ends or show good cause; otherwise, dismissal is proper. The plaintiff bears the burden to demonstrate good cause for a failure to serve process in a timely manner. To establish ‘good cause’ the plaintiff must demonstrate 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. Good cause is likely (but not always) to be found when the plaintiff’s failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service, or there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or in forma pauperis. However, placing blame upon a process server, without more, is insufficient to demonstrate good cause. The plaintiff must make a showing of diligence in seeking to effect service. In this case, Buckner’s counsel asserted that he had relied upon the process server’s assertion that the defendants had been served. Counsel’s belief that service had been achieved was evidenced by his filing of an affidavit to that effect with an application for entry of default when the defendants had failed to answer. However, a more attentive review of the file would have informed counsel that, because there was no return of service for the defendants, the reason they had failed to answer was that they had not been served with process. Evidently, Buckner’s counsel did not check for a return of service until after the statute of limitations had expired, after the trial court had set a date for a status hearing, after he had filed an application for entry of default, and after opposing counsel, upon discovering the lawsuit, had notified him that their clients never had been served. The trial court abused its discretion in refusing to set aside the extension of time, because Buckner did not present substantial evidence to support a finding of good cause for the failure to serve the defendants within the 120-day period. Additionally, Buckner did not file a motion for extension of time before the 120-day period had elapsed. While there is no actual requirement that a motion for additional time be filed, a plaintiff who – prior to expiration of the service period – files a motion representing that he or she has been unable to serve process, will more likely succeed in demonstrating diligence than a plaintiff who does nothing. Because Buckner did not serve the defendants within the 120-day period and he was not entitled to an extension of time, his complaint was subject to dismissal. Normally, as provided in Rule 4(h), the dismissal is to be without prejudice. However, if the statute of limitations has run, then dismissal with prejudice is appropriate. Pursuant to section 11-46-11(3), a one-year statute of limitations, along with tolling provisions, applied to Buckner’s claim against Copiah County School District and its employee, Funches. Section 11-46-11 requires a plaintiff to file a notice of claim with the State or a political subdivision and allows for the statute of limitations to be tolled for a certain amount of time, depending on the facts of the case. Notice of claim must be filed ninety days prior to filing suit. But if the plaintiff receives a denial of notice of claim, the plaintiff may file suit without waiting the full ninety days. Once a notice of claim is properly filed (received by the statutorily designated official of the governmental entity), the 365-day statute of limitations applicable to Tort Claims Act cases may be tolled for either 95 or 120 days. After the tolling period has passed, the running of the 365-day statute of limitations resumes. After the tolling period has expired, the claimant shall then have an additional ninety days to file any action. Here, the defendants’ allegedly tortious conduct occurred on December 15, 2006. It is undisputed that Buckner timely filed the notice of claim required by section 11-46-11(1). However, the record does not reveal when the required notice was received by the governmental entity, Copiah County School District, in order to trigger the tolling provisions of the Act. Nor does the record reveal that Copiah County School District denied the claim. To give Buckner the benefit of all the available tolling provisions under the Act, it is presumed that Copiah County School District received Buckner’s notice of claim 210 (120 + 90) days prior to filing suit. Thus, because Buckner filed suit on October 30, 2007, it is presumed that he filed the notice of claim 210 days earlier, on April 3, 2007. On April 3, 2007, 109 days had run on the limitations period. The receipt of the notice of claim by Copiah County School District tolled the limitations period for 210 days under the provisions of section 11-46-11(3), from April 3, 2007 to October 30, 2007. When Buckner filed the complaint on October 30, 2007, the provisions of Rule 4(h) tolled the running of the limitations period for 120 days. Because Buckner did not effect service of process, the statute of limitations resumed running on February 27, 2008, after the expiration of the 120-day period provided by Rule 4(h). On that day, 256 days remained of the one-year limitations period. Applying the rules for computation of time under M.R.C.P. 6(a), the limitations period expired on November 10, 2008. Because the statute of limitations had run before the defendants were served, dismissal with prejudice was proper. |
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