Cross Creek Prods. V. Scafidi
| Docket Number: | 2004-IA-01588-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 09-29-2005 Holding: Affirmed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Motion for additional time to serve process - M.R.C.P. 4(h) - Enlargement of time - M.R.C.P. 6(b) Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 07-13-2004 Appealed from: Tunica County Circuit Court Judge: Al Smith Disposition: Cross Creek filed a motion to dismiss, alleging that good cause did not exist for Scafidi’s failure to serve process within the original 120 days for service. This motion was denied, and we granted Cross Creek permission to bring this interlocutory appeal pursuant to M.R.A.P. 5. Case Number: 2003-0239-ABS |
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| Party Name: | Attorney Name: | |||
| Appellant: | Cross Creek Productions |
SHEA S. SCOTT, ROBERT F. STACY, JR. |
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| Appellee: | Andrea Scafidi | ANDREW C. BURRELL |
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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 - Motion for additional time to serve process - M.R.C.P. 4(h) - Enlargement of time - M.R.C.P. 6(b) |
| Summary of the Facts: | Andrea Scafidi, an employee of the Grand Casino in Tunica, was injured when she fell from a production truck which was taping a sports event. In a pro se complaint, she alleged that, at the time of the incident, she was acting in the scope of her employment and that, if a guard rail had been attached to the truck’s stairs, she would not have fallen. Scafidi named the following as defendants: Grand Casino Tunica; Grand Casinos Mississippi Development, Inc.; Park Place Entertainment Corporation; John Does One through Ten; and Cross Creek Productions. The complaint was filed on July 29, 2003, and the M.R.C.P. 4(h) deadline for service of process was November 26, 2003. Scafidi never requested that summonses be issued. She hired an attorney to represent her, and, on November 18, 2003, he moved for an additional 120 days in which to serve process. This motion was made within 120 days of the filing of the complaint. The order granting the motion gave Scafidi until March 26, 2004, to serve process. On December 3, 2003, Scafidi filed an amended complaint. The summons served on Cross Creek was personally served on February 19, 2004; Cross Creek filed its response on March 15, 2004. Cross Creek then filed a motion to dismiss, alleging that good cause did not exist for Scafidi’s failure to serve process within the original 120 days for service. This motion was denied. The Supreme Court granted Cross Creek permission to bring this interlocutory appeal. |
| Summary of Opinion Analysis: | Issue 1: M.R.C.P. 4(h) Cross Creek argues that Scafidi’s motion for additional time in which to serve process should have been denied because she failed to show good cause for failing to serve process within 120 days. M.R.C.P. 4(h) clearly does not apply to a motion for additional time filed within the initial 120 days. In fact, under Rule 4(h), a showing of good cause is not required unless and until the complaint is subject to dismissal for failure to serve process within 120 days. There is no requirement in the Rules that, during the initial 120-day period, a plaintiff must show good cause in order to obtain additional time in which to serve process. The case of Bang v. Pittman, 749 So. 2d 47, 52 (Miss. 1999) is overruled to the extent that it states that good cause is required for such a motion, because the case cannot be reconciled with the Mississippi Rules of Civil Procedure. Issue 2: M.R.C.P. 6(b) M.R.C.P. 6(b) provides that when an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion for notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed. An application under Rule 6(b)(1) normally will be granted in the absence of bad faith or prejudice to the adverse party. Here, Scafidi did not act in bad faith in failing to issue and serve summons. Her excuse for this failure was that she was proceeding pro se. Ignorance of the court rules does not constitute bad faith. Further, Cross Creek has shown absolutely no prejudice as a result of the delay in being notified about the lawsuit. Therefore, the circuit court did not abuse its discretion in granting additional time in which to serve summons and did not err in denying Cross Creek’s motion to dismiss. However, this finding is specifically limited to those situations where the motion for additional time is filed before the deadline. |
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