Mississippi Court of Appeals: six efforts to serve process at the registered agent’s address within 120 days, plus a motion for extension on the 121st day, plus two more attempts (one being successful) shortly thereafter amounted to “good cause” and “diligence”; thus avoiding the harsh penalty of the statute of limitations.
Joshua Adams v. MBA Foundation d/b/a Mississippi Basketball & Athletics
This appeal dealt with civil procedure in a personal injury action arising out of a fight in the parking lot at a basketball tournament that left the referee (Griffin) dead and a coach (Adams) with serious injuries. Adams filed suit in Hinds County Court three days prior to the running of the three-year statute of limitations. He sued Mississippi Basketball & Athletics (MBA), Mississippi Boys Hoops, Inc. and Amateur Athletics Union under theories alleging negligent hiring, retention, supervision or control of Griffin. The filing in “county court” (with jurisdictional limits of $200,000) was said to have been a mistake because damages exceeded that amount.
While Adams’ motion to transfer the case to circuit court was pending, he served two defendants but was unable to serve MBA. Within 120 days of filing, Adams’ process server made six attempts to serve MBA’s registered agent at the listed address in Ridgeland, Mississippi. No one answered the door. On the 121st day, Adams moved the court for an extension of time to serve MBA on the following ground:
Plaintiff’s process server has tried serving the defendant on numerous occasions. Despite diligent efforts, Plaintiff’s process server has not been able to effectuate process on Defendant.
The county court granted the motion, as follows:
This matter came before the Court on the Plaintiff’s Motion For Extension of Time to Serve Process on the defendants in this cause, and the Court, after considering said motion, finds that it is well taken and should be granted.
Adams received an additional allotment of 120 days to serve MBA. About a month later, the Madison County Sheriff’s Office attempted service of MBA at the same address on the Secretary of State’s website. Again, service was unsuccessful. Later that same month the case was transferred to circuit court. Shortly thereafter, Adams served MBA at MBA’s facility in Jackson where MBA’s registered agent worked.
MBA moved the circuit court to set aside the county court’s order granting the 120-day extension of time to serve process. Also, MBA moved for summary judgment on the grounds that, without the 120-day extension, the statute of limitations barred the claim. According to MBA, Adams failed to show good cause[1] for an extension of time. Adams had provided no facts and no affidavit or other evidence in support of his motion for extension.
In response to the motion to set aside, Adams filed an affidavit from his process server. Therein, the process server recounted having attempted service on MBA more than six times at the registered agent’s address. The affidavit showed there were vehicles in the driveway but no one answered the door. Adams also provided documentation of the Deputy Sheriff’s effort. After a hearing, the circuit court set aside the county court’s order granting an additional 120 days for service of process, and entered summary judgment on statute of limitations grounds.
The Mississippi Court of Appeals applied an abuse of discretion standard on the decision to set aside the order granting an extension of time. It applied a de novo standard for the circuit court’s grant of summary judgment: viewing evidence in a light most favorable to the non-movant (here, Adams).
Mississippi Rule of Civil Procedure 4(h) states:
Summons: Time Limit for Service. 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.
M.R.C.P. 4(h).3
As the Mississippi Court of Appeals explained, it is preferable to file a motion for extension before the 120-day period expires, but failure to do so is not fatal. Adams had missed the mark by one day. Even after the lapse of 120 days, “an extension of time to serve process continues to toll the statute of limitations [but] only if granted for good cause.” Heard v. Remy, 937 So. 2d 939, 943 (Miss. 2006). The plaintiff must demonstrate good cause for having failed to timely serve process. “Good cause” requires “at least as much as would be required to show excusable neglect”. Further, “simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Id. at 166. Adams was required to show diligence on his part. “Good cause” has been shown to exist in the following cases:
[W]hen the failure is a result of the conduct of a third person; when the defendant has evaded service of process or engaged in misleading conduct; when the plaintiff has acted diligently; when there are understandable mitigating circumstances; or when the plaintiff is proceeding pro se or in forma pauperis.
Foss v. Williams, 993 So. 2d 378, 379 (Miss. 2008).
The appellate court found Adams to have shown good cause. Adams’ motion included “good cause” language, even though the magic words “good cause” were not used: “Plaintiff’s process server has tried serving the defendant on numerous occasions. Despite diligent efforts, Plaintiff[’]s process server has not been able to effectuate process on Defendant.” Further, the county court’s order incorporated the motion and thus properly found good cause: “[A]fter considering said motion [this Court] finds that it is well taken and should be granted.” The appeals court stated that both the circuit court and the dissent required more “good cause” than Mississippi’s supreme court. Unlike a Rule 56 motion, the motion for an extension of time does not require a supporting affidavit. Rule 4 does not require an affidavit to establish good cause.
Adams’ diligence was shown by having filed a motion for extension merely one day after the initial 120 days. (We do not know how many days after “one” still counts as “diligence”.) Nor was Adams required to show MBA’s registered agent was evading service of process. It was enough for Adams to have acted diligently. Finally, Adams having attempted service only at the registered agent’s home address did not amount to “no good cause”. There was no evidence in the record that the registered agent’s whereabouts were known, should have been known, or could have been known. An internet search by Adams was not required to establish good cause, as the registered agent’s address was undisputed.
With the grant of 120 extra days for service of process, Adams “diversified his efforts.” After the Deputy Sheriff likewise failed to effect service at the registered agent’s home, attempt was made and had at the MBA facility. In summary, three different methods of service, with one method occurring six times in 120 days, constituted diligence. Adams showed good cause. The circuit court abused its discretion in setting aside the county court’s order. Therefore, the circuit court also erred when granting MBA’s motion for summary judgment. The county court’s order granting an extension of 120 days tolled the statute. Reversed and remanded.
Read the full opinion here: Joshua Adams v. MBA Foundation d/b/a Mississippi Basketball & Athletics, in the Court of Appeals of the State of Mississippi, No. 2018-CA-00497-COA (06/04/2019)
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[1] “Good cause” is required for the granting of an extension of time after the initial 120 days to serve process has expired. See M.R.C.P. 4(h). However, MBA provided no authority that affidavits are required when seeking an extension of time to serve process beyond the initial 120 days.