The 4(h) Club

July 24, 2014 § Leave a comment

No, I’m not talking about raising livestock and watermelons. I’m talking about how you can get clubbed by operation of MRCP 4(h), which can raise some nasty lumps.

R 4(h) states:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

The obvious peril of this rule is operation of the statute of limitations (SOL). If your complaint is dismissed and the statute runs before you can get it refiled, your proverbial goose is cooked. But it is equally parboiled if you fail to effect process within the 120-day period. Here’s what the MSSC said in the case of Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss. 2002):

Filing a complaint tolls the applicable statute of limitations 120 days, but if the plaintiff fails to serve process on the defendant within that 120-day period, the statute of limitations automatically begins to run again when that period expires. Watters v. Stripling, 675 So. 2d 1242, 1244 (Miss.1996). A plaintiff who does not serve the defendant within the 120 day period must either re-file the complaint before the statute of limitations ends or show good cause for failing to serve process on the defendant within that 120 day period; otherwise, dismissal is proper. Id. at 1244; Brumfield v. Lowe, 744 So. 2d 383, 387 (Miss. Ct. App.1999). The plaintiff bears the burden of establishing good cause. M.R.C.P. 4(h).

That language is quoted in the recent MSSC decision in Lewis Entertainment Inc. d/b/a Extreme Skate Zone v. Brady, decided July 17, 2014.

In that case, the plaintiffs had failed to get process on Lewis within the 120 days, and the SOL ran the day after the 120-day period ended. The court noted that, under the rule, the only way for the plaintiffs to keep their action alive was to show good cause for failure to serve Lewis within the 120 days.Justice Lamar, for the unanimous court, set out what constitutes good cause:

¶9. To establish good cause, the plaintiff has the burden to 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 does not suffice.” When making a good-cause determination, the following factors should be considered:

a. the conduct of a third person, typically the process server,

b. the defendant has evaded service of the process or engaged in misleading conduct,

c. the plaintiff acted diligently in trying to effect service or there are understandable mitigating circumstances, or

d. the plaintiff is proceeding pro se or in forma pauperis.

The Bradys are not proceeding pro se or in forma pauperis and nothing in the record suggests that their failure to timely serve Lewis is attributable to the conduct of a third person or to Lewis. The Bradys simply claim their failure to serve Lewis is justified by their attempts to serve Oak Grove. We disagree.

¶10. The Bradys waited until the last day of the 120-day period to attempt to serve Oak Grove. On that day, their process server learned that the Bradys had named the wrong defendant, but, instead of identifying the correct defendant, the Bradys continued to attempt service on the wrong party for two weeks. The Bradys also failed to request additional time to serve process until seventy days after the 120-day period expired and three weeks after they were informed that their case was going to be dismissed. And, even after they filed a motion for additional time, they failed to set it for hearing and have yet to name the proper defendant.

The court went on to hold that those facts did not constitute good cause that would save the plaintiffs’ case.

Lewis is an appeal from a county court case. In chancery, we do not routinely deal with statutes of limitation like they do in county and circuit courts. But for those chancery matters that do involve SOL, R 4(h) is as applicable here as it is in the law courts.

Beware of the club.

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