IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-IA-00570-SCT
RODNEY SHELTON FULGHAM
v.
CLARA JACKSON
DATE OF JUDGMENT: 03/30/2016
TRIAL JUDGE: HON. CHARLES E. WEBSTER
TRIAL COURT ATTORNEY: S. TODD JEFFREYS
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: M. GARNER BERRY
ATTORNEY FOR APPELLEE: S. TODD JEFFREYS
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED AND REMANDED - 06/22/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE DICKINSON, P.J., KING AND CHAMBERLIN, JJ.
CHAMBERLIN, JUSTICE, FOR THE COURT:
¶1. This interlocutory appeal arises from the Circuit Court of Bolivar County. Rodney
Fulgham argues that the trial judge below erred by denying his motion to dismiss. The
motion asserted that the plaintiff, Clara Jackson, failed to show good cause justifying a
second enlargement of time to serve process. Finding no error with the trial judge denying
the motion to dismiss, we affirm.
FACTS
¶2. On February 4, 2015, Jackson filed a complaint against Fulgham for damages arising
from a car accident.1 A summons was issued the next day, and both the complaint and
summons stated that Fulgham was incarcerated at the Bolivar County Correctional Facility
in Cleveland, Mississippi. On May 8, 2015, within the 120-day deadline to serve process,
Jackson filed a Motion for Enlargement of Time to Serve Process. In the motion, Jackson
stated that she believed Fulgham had been moved to the Carroll-Montgomery County
Regional Correctional Facility in Vaiden, Mississippi, and that additional time was needed
to serve Fulgham due to his movement through the prison system. The trial judge granted
the motion, giving Jackson an additional 120 days, until October 2, 2015, to serve process
on Fulgham.
¶3. On September 23, 2015, Jackson filed a Second Motion for Enlargement of Time to
Serve Process. In the motion, Jackson claimed that she had been advised that Fulgham
would be returning to the correctional facility in Bolivar County but that such return never
occurred. Therefore, Jackson requested an additional sixty days to serve process. The trial
judge granted the second enlargement, giving Jackson until December 2, 2015, to serve
Fulgham. Ultimately, Jackson effectuated service of process on Fulgham on November 12,
2015, at the correctional facility in Carroll County.
¶4. On December 17, 2015, Fulgham filed a Motion to Dismiss for failure to serve timely
process, along with his first responsive pleadings. Fulgham, through counsel, argued that his
1
The underlying facts concerning the car accident are not pertinent to this appeal.
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location in the prison system easily could have been determined by a name search on the
Mississippi Department of Corrections website and that Jackson was not diligent in locating
him. Thus, he argued that good cause was not shown for failing to serve process within the
first 120 days after the case had been filed. Jackson filed a response to the motion and the
trial judge held a hearing.
¶5. At the hearing, Fulgham admitted that the first enlargement was properly granted and
abandoned the argument presented in the written motion. Fulgham conceded that, because
the first enlargement was sought within the initial 120-day time frame to serve process,
Jackson need only to show “cause,” not “good cause.” See Johnson v. Thomas ex rel.
Polatsidis, 982 So. 2d 405, 412 (Miss. 2008) (“Rule 4(h) clearly does not apply to a motion
for additional time filed within the initial 120 days.”). The trial judge, however, allowed
Fulgham to present an ore tenus motion to dismiss, asserting that Jackson had failed to show
“good cause” as to why a second enlargement should have been granted.
¶6. In response to the ore tenus motion, counsel for Jackson claimed that he had contacted
an administrative official at the Bolivar County facility who initially stated that Fulgham was
in Rankin County for processing. Some time later, counsel learned from the administrative
official that Fulgham had been moved to the Carroll County facility but would be brought
back to Bolivar County within a couple of months. At this time, counsel said he sought the
first enlargement. Near the end of the 120-day period under the first enlargement, counsel
stated that he contacted the prison official again and learned that Fulgham’s return to Bolivar
County was not imminent, so he filed for the second enlargement of time to serve process.
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¶7. On April 5, 2016, the trial judge entered an order denying Fulgham’s motion to
dismiss, finding that Jackson had demonstrated cause for the first enlargement and good
cause for the second. In doing so, the trial judge determined: (1) Fulgham’s incarceration
was a mitigating circumstance; (2) the actions of the administrative official misdirected
Jackson’s attempts to locate Fulgham; (3) that Jackson diligently inquired into Fulgham’s
location; and (4) that Jackson timely filed motions requesting additional time.
¶8. On April 21, 2016, Fulgham filed a Petition for Interlocutory Appeal, which we
granted. Fulgham appeals, arguing the trial court abused its discretion in denying the motion
to dismiss.
DISCUSSION
¶9. “A trial court’s finding of fact on the existence of good cause for the delay in service
of process has been deemed ‘a discretionary ruling . . . and entitled to deferential review.’”
Collins v. Westbrook, 184 So. 3d 922, 929 (Miss. 2016) (quoting Rains v. Gardner, 731 So.
2d 1192, 1197–98 (Miss. 1999)). With regard to these fact-findings, our review is limited
to determining only “whether the trial court abused its discretion and whether there was
substantial evidence supporting the determination.” Id. (citing Rains, 731 So. 2d at 1197).
On the other hand, “a decision to grant or deny an extension based upon a question of law
will be reviewed de novo.” Foss v. Williams, 993 So. 2d 378, 380 (Miss. 2008).
A. Additional motions for enlargements of time to serve process before
the expiration of the original period or its previous extension
require cause shown.
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¶10. It is well-settled under Mississippi law that a plaintiff must serve process upon the
defendant(s) within 120 days of the filing of the complaint. See M.R.C.P. 4(h). Under Rule
4(h):
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.
Id. In Cross Creek Productions v. Scafidi, 911 So. 2d 958, 960 (Miss. 2005), we found that
Rule 4(h)’s good-cause requirement “does not apply to a motion for additional time filed
within the initial 120 days.” Instead, we determined that, under Rule 6(b), a party need only
show “cause” to obtain an enlargement of time so long as the enlargement is sought within
Rule 4(h)’s 120-day period. Id. Rule 6(b) of the Mississippi Rules of Civil Procedure states:
(b) Enlargement. When by these rules or by notice given thereunder or by
order of court 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 (1) with or
without motion or notice order the period enlarged if request therefore is
made before the expiration of the period originally prescribed or as extended
by a previous order, or (2) upon motion made after the expiration of the
specified period permit the act to be done where failure to act was the result
of excusable neglect; but it may not extend the time for taking any action under
Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent
and under the conditions therein stated.
M.R.C.P. 6(b) (emphasis added).
¶11. In Johnson, we again read Rule 4(h) in conjunction with Rule 6(b), restating that a
plaintiff is entitled to a first enlargement of time “for cause shown” when he or she files a
motion for enlargement of time within the 120-day time period prescribed in Rule 4(h).
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Johnson, 982 So. 2d at 413. However, we then stated—without citing any language from
the rules in support—that “once a party has received a first extension of time under Rule 4(h)
in which to serve process, a second or subsequent extension to effectuate service of process
may be granted by the trial court only upon a showing of ‘good cause.’” Johnson, 982 So.
2d at 413 (emphasis added). We are convinced that this statement of the law in Johnson was
in error as it conflicts with the plain language of Rule 6(b).
¶12. The Johnson Court stated:
While we recognize that Rule 6(b)(1) provides for an enlargement of time “for
cause shown,” when reading the two Rules together, it is apparent that Rule
4(h) requires “good cause” after the expiration of 120 days. Because Rule 4(h)
is the specific rule applicable in today’s case and Rule 6(b)(1) is a
general-application rule, the language in Rule 4(h) controls.
Id. Rule 4(h), however, is not a specific rule governing a general rule because Rule 4(h) and
Rule 6(b) are in no way contradictory. Rule 4(h) places a duty upon the trial court regarding
service after 120 days and does not address enlargements of time. Rule 6(b), on the other
hand, addresses enlargements of time and specifically notes the rules which remain
unaffected by Rule 6(b). See M.R.C.P. 6(b). Notably, Rule 4 is not one of those rules.
Therefore, if Rule 6(b) is meant to be read in conjunction with Rule 4(h), then a trial judge
has discretion to grant a second (or third, fourth, fifth, etc.) enlargement of time to serve
process “for cause shown” so long as the motion is “made before the expiration of the period
. . . as extended by a previous order.” Id. (emphasis added). Rule 6(b) provides that a trial
judge may grant an enlargement of time, not establish a separate period of time. Thus, Rule
4(h) actually requires a good-cause showing after the expiration of the 120-day period as
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enlarged by any court order pursuant to Rule 6(b), not just after “the expiration of 120 days.”
Contra Johnson, 982 So. 2d at 413. Therefore, we overrule Johnson v. Thomas ex rel.
Polatsidis, 982 So. 2d 405, 412 (Miss. 2008), to the extent that it requires a party to show
good cause instead of “ for cause shown” when a second motion for enlargement of time is
filed before the expiration of the time provided under the prior enlargement. This holding
is in conformity with a strict reading of the rules and their unambiguous language.
¶13. While in Johnson the Court expressed concern about “successive extensions” granted
upon a “showing [of] ‘cause’ as long as the next motion for extension is filed before the
existing extension expires,” the Johnson Court erred by construing our rules in a manner that
effectively added language to Rule 6(b). Johnson, 982 So. 2d at 415. Though this concern
is understandable, the remedy is to define “for cause shown” or “cause.”
¶14. To demonstrate “for cause shown” or “cause” to obtain an enlargement of time under
Rule 6(b)(1), a party must articulate a legitimate reason, made in good faith, as to why the
enlargement of time should be granted. While this may not rise to the level of Rule 4(h)’s
“good cause” standard, it requires something constituting diligence or a legitimate reason
excusing same. Collins, 184 So. 3d at 929-930 (quoting Webster v. Webster, 834 So. 2d 26,
28 (Miss. 2002)). This is not to say that continuous mistakes or inadvertence—while
possibly made in good faith—would continue to satisfy Rule 6(b)’s “for cause shown”
standard. Each case should be left to the discretion of the trial court so the judge can look
to the totality of the circumstances to determine if “cause” is being shown in light of all facts
and circumstances.
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¶15. Under this definition, we are able to issue a decision in compliance with the strict
reading of Rule 6(b)(1) while, at the same time, ensuring that parties seek to perfect timely
service of process. Further, this holding will not lead to unending litigation. Plaintiffs will
be held to this “for cause shown” standard to obtain any enlargement of time, including the
initial enlargement. Likewise, defendants still can challenge whether “cause” was shown.
Also, a trial court’s determination of cause will be reviewed under an abuse-of-discretion
standard as with any other “fact-based finding.” See Collins, 184 So. 3d at 929.
¶16. Because Jackson’s second enlargement of time was sought within the time permitted
by the first enlargement, only “cause” needed to be shown to obtain the enlargement of time.
Under the facts of this case, we find that Jackson articulated “cause” to obtain the second
enlargement of time to serve process. Jackson continuously sought to determine Fulgham’s
exact location, and she filed requests for enlargements of time within the required time
periods. Here, Fulgham was in prison, and the facts indicate that Jackson was misdirected
by the prison official’s statement that Fulgham would be brought back to Bolivar County.
Further, there are no allegations that Jackson’s failure to serve Fulgham within the original
120-day period or the first enlargement was in bad faith. As Jackson articulated legitimate
reasons, in good faith, for the delay in service of process, cause was shown here.
B. The trial court’s finding of “good cause” was not an abuse of
discretion.
¶17. We do not hesitate to apply retroactively our clarification of the law to this case, as
the trial court’s finding of “good cause” was also not an abuse of discretion. Because we
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find that good cause was shown, Fulgham is not prejudiced by the fact that Jackson has to
show only cause.
¶18. “To establish ‘good cause’ the plaintiff must demonstrate 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 usually does not suffice.’” Collins, 184 So. 3d at 929–930
(quoting Webster v. Webster, 834 So. 2d 26, 28 (Miss. 2002)). Even more, good cause
requires a diligent effort on behalf of the plaintiff to effectuate service in a timely manner.
Id. at 930. “What amounts to ‘good cause’ under any particular set of circumstances is
necessarily fact-sensitive.” Id. (quoting Lindsey v. United States R.R. Bd., 101 F.3d 444, 446
(5th Cir. 1996)). Generally, good cause exists
when 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, 993 So. 2d at 379.
¶19. Here, the trial judge did not abuse his discretion by finding good cause justifying the
second enlargement. Jackson timely sought enlargements of time to serve process and, as
shown below, did provide the trial judge with specific details concerning her attempts to
locate Fulgham. Based on the facts of this case and our deferential standard of review, we
cannot conclude that the trial judge erred.
¶20. As shown in the complaint and summons, Jackson initially believed that Fulgham was
housed at the Bolivar County Correctional Facility. When Jackson’s counsel first called the
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prison to inquire into Fulgham’s whereabouts, a prison official told counsel that Fulgham had
been moved to Rankin County for processing—a temporary status. Then, in a later
conversation with the same official, counsel was advised that Fulgham had been moved to
Carroll County but would return in the near future to Bolivar County. At this time, Jackson
timely sought the first enlargement of time due to Fulgham’s movement in the prison system.
Counsel for Jackson then contacted the prison official again within the additional time
permitted under the first enlargement and, from this conversation, learned that Fulgham’s
return to Bolivar County was not imminent. Thereafter, because Fulgham had not been
returned to Bolivar County as the prison official previously had stated, Jackson filed for a
second, shorter, period of time to serve process. Jackson then timely served Fulgham within
the time permitted by the second enlargement.
¶21. As noted above, good cause can be shown “when the failure [to serve process] is a
result of the conduct of a third person” and where a plaintiff is diligent in seeking to serve
process. Foss, 993 So. 2d at 379. These facts show that Jackson diligently inquired into
Fulgham’s whereabouts over the course of several months. Though Jackson did learn that
Fulgham would be in Carroll County for a period of time, she was not required to run out and
attempt service the next day, especially given that the defendant was incarcerated (and,
therefore, secure for future service) and she had been advised by proper officials that
Fulgham would return to Bolivar County shortly. Indeed, Jackson sought the second
enlargement only after she learned that Fulgham, in fact, would not be brought back to
Bolivar County in the near future.
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¶22. We also find that the trial judge did not err by finding that Fulgham’s incarceration
created a mitigating circumstance. To be clear, incarceration, in and of itself, does not
constitute “good cause.” In fact, we have even adopted a specific rule regarding service of
process on persons in penal institutions. See Miss. R. Civ. P. 4(d)(3). But here, Fulgham’s
incarceration and movement through the prison system, coupled with the statements from the
Bolivar County prison official upon which Jackson relied, misdirected Jackson’s ability to
serve Fulgham. Further, the trial judge was in the best position to determine the difficulty
of locating Fulgham, serving him while he was in jail as well as the effects of the interactions
with the Bolivar County Jail officials.
¶23. Finally, we note that Jackson sought her first enlargement of time within the 120-day
time period in Rule 4(h) and sought her second motion within the extra 120 days provided
by the first enlargement. See Montgomery, 910 So. 2d at 547-48 (“[A] plaintiff who—prior
to expiration of the service period—files a motion representing that he or she has been unable
to serve process, will more likely succeed in demonstrating diligence than a plaintiff who
does nothing.”). Here, we find that Jackson demonstrated diligence in seeking to serve
process upon Fulgham. To find otherwise would be to second-guess the learned trial judge
as relates to several accepted grounds for a showing of “good cause” that support the plaintiff
in this case.
¶24. Therefore, we find that good cause existed for Jackson’s delay in service of process.
Jackson was diligent by continuously and timely inquiring into Fulgham’s whereabouts.
Further, Jackson was misdirected by a third party. Jackson also filed timely motions for
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enlargements of time. Given our standard of review and the totality of the circumstances,
the trial court did not err in finding good cause for Jackson’s second enlargement of time.
CONCLUSION
¶25. For the reasons above, we affirm the trial judge’s decision to deny the motion to
dismiss. We remand this case to the trial court for further proceedings consistent with this
opinion.
¶26. AFFIRMED AND REMANDED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.
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