MRCP 4(h) and the Divorce Complaint

October 27, 2014 § Leave a comment

We talked here last week about the applicability of MRCP 4(h) to R81 actions. Whichever side of that particular issue you come down on, you need to be aware that, yes indeed, R4(h) does apply to divorce complaints. And it can bite you in uncomfortable regions of your anatomy if you’re not careful.

In Webster v. Webster, 834 So.2d 26 (Miss. 2003), Charles Webster had left his wife, Jean, and moved to Texas, where he obtained a divorce judgment against her.

On October 5, 1999, Jean filed her own action in Mississippi, claiming that Texas never obtained personal process on her, and that she had never lived in Texas. She attempted several times unsuccessfully to effect certified mail process. On February 8, 2002, she filed a motion to allow out-of-time service of process, which the chancellor granted, finding that good cause existed to allow an additional 120 days.

On June 21, 2000, outside the 120-day extension, Jean filed an amended complaint and issued a new summons. Charles was served with process on July 3, 2000. On October 30, 2000, the chancellor entered a judgment granting alimony and other relief that Charles found distasteful enough that he filed a R60 motion complaining that the court did not have personal jurisdiction because of the out-of-time process. The chancellor overruled the motion, and Charles appealed.

The MSSC reversed and remanded.

Was Jean’s motion for extension of time untimely? Jean waited until after the initial 120 days had run before she filed for additional time. The court took note of a split of authority in other states, but noted that there is nothing in the rules that requires filing a motion for extension within 120 days. It did point out that a diligent attorney should file within the 120 days, and would actually support a finding in favor of the extension.

Did Jean show good cause for not meeting the 120-day requirement? The court said no. You can read the opinion for yourself, but to me there are two salient points to take away: (1) Jean did not support her motion with affidavits, which would have made a record; and (2) You have to make a convincing effort to find and serve the defendant; a few random, half-hearted stabs at it will not suffice.

I also wonder whether that amended complaint was done properly. We’ve talked about that here before.

The moral of this story is that failure to get process on a defendant within 120 days of filing your complaint is one of those fatal problems that can lurk in your record until it rises, zombie-like via a R60 motion, and then on appeal, causing you to lose a case you and your disappointed client had thought you had won.

Do you think this is an academic point you’re not likely to see in your lifetime? Not so fast, my friend. The following scenario happens every day: You file a complaint for divorce on HCIT and alternatively on ID, anticipating, based on your client’s confidence, that everything will be worked out swimmingly. After six months the defendant still has not come to terms — and he has not been served with process. Finally, you issue process and get the case moving. Your 192-day process is ticking away in your case like a time bomb.

Best practice is to wait no longer than 60-90 days to get a waiver and agreed PSA. Immediately after that, have the defendant served with process. You can then continue to attempt a settlement, but R4(h) will no longer be a concern.

Does MRCP 4(h) Apply to R81 Cases?

October 21, 2014 § 2 Comments

R4(h) states:

If a 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.

In the case of Roberts v. Lopez, decided September 23, 2014, the COA said this:

[¶9]  Notwithstanding the provisions of Rule 4(h), Rule 81(a)(9) provides, in pertinent part:

Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures [:] . . . Title 933 of the Mississippi Code of 1972.

(Emphasis added).

¶10. Rule 81(d)(2) provides that modification of custody matters “shall be triable 7 days after completion of process in any manner other than by publication . . . .” Rule 81(d)(5) provides in part:

Upon the filing of any action or matter listed in subparagraphs (1) and (2) [of Rule 81(d)], summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order[,] or rule of court.

David was served with a Rule 81 summons commanding him to appear at the August 24, 2012 hearing. Therefore, it is of no moment that Liza’s initial complaint and amended complaint, which sought to set aside or modify previous custody orders, were filed more than 120 days prior to David being served with the Rule 81 summons. The modification of custody orders that Liza sought was governed by Rule 81(d), not Rule 4(h) as David contends …

This is a novel rationale. The court did not cite, nor have I been able to find, a prior case that supports this assertion. There is nothing in the language of R4(h) that excepts R81 matters. I had always understood the limitation language of R81(a) as applying to statutory provisions that set out specific deadlines such as some estate and guardianship matters.

As a practical matter, R4(h) is usually applied in circuit court actions where its application has statute-of-limitations ramifications. In chancery, since statutes of limitation seldom apply, the 4(h) dismissal is without prejudice, and one can simply shrug it off and refile. David, in his case, tried to use 4(h) as a sword to set aside the trial court’s judgment. He failed, though, based on the court’s reasoning above, but most importantly due to this:

Moreover, David appeared and participated generally in the August 24, 2012 hearing. So even if process were defective, which it was not, David waived the defect by his appearance and general participation in the hearing. See Isom v. Jernigan, 840 So. 2d 104, 107 (¶9) (Miss. 2003). Thus, this issue is without merit.

As we all know, a voluntary general appearance waives any objection to personal jurisdiction.

So, does Roberts v. Lopez establish the rule that R4(h) simply does not apply to R81 matters based on the language quoted above? I think I’m going to treat that language as dicta, since the dispositive fact here was that David waived the objection. It was unnecessary for the court to go into that R4 vs. R81 analysis when all that had to be said was that David’s general appearance subjected him to personal jurisdiction regardless of any defect of process. Your chancellor may see it differently.

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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