Foss v. Williams


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Docket Number: 2007-IA-00615-SCT
Linked Case(s): 2007-IA-00615-SCT ; 2007-M-00615-SCT

Supreme Court: Opinion Link
Opinion Date: 09-25-2008
Opinion Author: DIAZ, P.J.
Holding: AFFIRMED AND REMANDED

Additional Case Information: Topic: Wrongful death - Service of process - M.R.C.P. 4(h) - Good cause
Judge(s) Concurring: EASLEY, GRAVES, RANDOLPH AND LAMAR, JJ.
Dissenting Author : CARLSON, J., with separate written opinion.
Dissent Joined By : SMITH, C.J., WALLER, P.J., AND DICKINSON, J.
Procedural History: Interlocutory Appeal; Dismissal
Nature of the Case: CIVIL - WRONGFUL DEATH; Interlocutory Appeal

Trial Court: Date of Trial Judgment: 03-26-2007
Appealed from: Coahoma County Circuit Court
Judge: Al Smith
Disposition: The circuit court denied Foss's motion to dismiss for the plaintiff's failure to serve process within 120 days.
Case Number: 14-CI-06-87

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: MICHAEL L. FOSS, M.D.




JASON EDWARD DARE, L. CARL HAGWOOD, BRADLEY KEITH OVERCASH



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: DOROTHY WILLIAMS, ADMINISTRATRIX OF THE ESTATE OF PETER D. PRICE, DECEASED EVERETT T. SANDERS  

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    Topic: Wrongful death - Service of process - M.R.C.P. 4(h) - Good cause

    Summary of the Facts: Dorothy Williams filed a complaint asserting claims of medical malpractice and wrongful death against Northwest Mississippi Orthopaedic Clinic, Clarksdale HMA, Inc., Dr. William M. Barr, and Dr. Michael Foss. All of the defendants, with the exception of Dr. Foss, were served with process within the 120-day time period provided under M.R.C.P. 4(h). Dr. Foss was served 121 days after the complaint was filed. Dr. Foss filed a motion to dismiss Williams’ complaint for failure to comply with Rule 4(h). The court entered an order denying the motion to dismiss, finding that Williams had demonstrated good cause for failing to serve the defendant within the required time period. The Supreme Court granted an interlocutory appeal.

    Summary of Opinion Analysis: Dr. Foss argues that the court erred in denying his motion to dismiss because the plaintiff did not demonstrate good cause for failure to comply with Rule 4(h). Plaintiff’s counsel argued that he had good cause for missing the deadline because he had associated local counsel whom he believed was responsible for serving process. The local attorney failed to initiate service, and the plaintiff’s counsel did not learn of the failure until 118 days after the complaint was filed. At that time, he immediately sought to have the defendants served. In order to establish that good cause exists for late service, a plaintiff must have made a diligent effort to effect service. In this case, the dismissal of Dr. Foss’ motion was based on the court’s fact-based finding that the miscommunication between Williams’ attorneys about who was responsible for serving the defendants constituted good cause. Based on the facts of this case, the trial court did not abuse its discretion in denying Dr. Foss’ motion to dismiss.


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