         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-CA-00347-COA

WILLIAM KEVIN HADLEY                                                       APPELLANT

v.

FEDEX GROUND PACKAGE SYSTEM INC.                                           APPELLEES
AND STEVEN OTTO

DATE OF JUDGMENT:                          02/15/2018
TRIAL JUDGE:                               HON. JAMES McCLURE III
COURT FROM WHICH APPEALED:                 DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JOE MORGAN WILSON
                                           JERRY WESLEY HISAW
ATTORNEYS FOR APPELLEES:                   ROBERT A. BIGGS III
                                           CHARLES STEPHEN STACK JR.
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
DISPOSITION:                               AFFIRMED - 04/30/2019
MOTION FOR REHEARING FILED:                05/06/2019 - DENIED; AFFIRMED -
                                           09/17/2019
MANDATE ISSUED:

       EN BANC.

       TINDELL, J., FOR THE COURT:

              MODIFIED OPINION ON MOTION FOR REHEARING

¶1.    The motion for rehearing is denied. The original opinion is withdrawn, and this

modified opinion is substituted in its place.

¶2.    On June 20, 2017, Steve Otto (“Otto”) and FedEx Ground Package System Inc.

(“FedEx”) filed a Motion to Dismiss against William Kevin Hadley (“Hadley”) in the DeSoto

County Circuit Court, arguing that Hadley had failed to properly serve Otto and FedEx before

the statute of limitations expired. The circuit court granted the motion and dismissed
Hadley’s claims for insufficient service of process. In his response to the defendants’

motions, Hadley moved to amend his complaint to add J. Delivery Services, Otto’s actual

employer, as a defendant. The circuit court denied this motion as moot. Hadley now appeals

this judgment, arguing that the circuit court erred by not granting Hadley a 120-day extension

of time to perfect service of process and by not granting Hadley leave to amend his

complaint. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶3.    This case stems from a car accident that occurred on January 31, 2014, when Otto

rear-ended Hadley while driving a truck owned by FedEx. On January 31, 2017, Hadley filed

a complaint against FedEx and Otto in the circuit court exactly one day before the statute of

limitations expired.

¶4.    Hadley attempted to serve FedEx on its Mississippi registered agent, CT Corporation

System, via certified mail. After much difficulty locating Otto, Hadley’s attorney filed a

motion for additional time to serve process one week before the deadline to serve Otto would

expire. The motion was never set for a hearing, and no order was entered granting the

motion. Hadley had nonetheless attempted to serve Otto by publishing notice in the DeSoto

Times Tribune for three consecutive weeks beginning on June 20, 2017.

¶5.    On July 20, 2017, FedEx and Otto filed motions to dismiss Hadley’s complaint,

arguing that Hadley had failed to properly serve them with process within the 120-day

deadline prior to the expiration of the statute of limitations. Hadley responded, again

requesting an extension of time to serve the parties along with a motion for leave to amend



                                              2
the complaint to add J. Delivery Services, Otto’s actual employer at the time of the accident,

as a party to the action.

¶6.    The circuit court granted the defendants’ motions to dismiss, finding that Hadley

failed to properly serve FedEx and Otto within the 120-day deadlines and failed to show

good cause for invalid service. The circuit court also denied Hadley’s motion for leave to

amend his complaint. Aggrieved, Hadley now appeals.

                                STANDARD OF REVIEW

¶7.    This Court reviews the grant or denial of a motion to dismiss de novo. Blakeney v.

Warren County, 973 So. 2d 1037, 1039 (¶11) (Miss. Ct. App. 2008). A finding of good

cause or excusable neglect is usually left to the discretion of the circuit court, unless such

discretion is abused and requires reversal. Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35,

38 (¶5) (Miss. 2007). Where a circuit court applies interpretations of law in its analysis, the

court reviews its determination de novo. Id. at 38 (¶5). But, where the court applies fact-

based findings in its determination of good cause or excusable neglect, the Court defers to

the discretionary ruling of the circuit court and “whether there was substantial evidence

supporting the determination.” Rains v. Gardner, 731 So. 2d 1192, 1197 (¶18) (Miss. 1999).

“Motions for leave to amend complaint are left to the sound discretion of the trial court,” and

the Court reverses only where a determination of abuse of discretion is found. Moeller v.

Am. Guarantee & Liab. Ins. Co., 812 So. 2d 953, 961 (¶26) (Miss. 2002).

                                        ANALYSIS

¶8.    As a basic principle of pre-trial practice, plaintiffs are required to serve defendants



                                              3
with a copy of the complaint and summons within 120 days of filing the complaint in order

to effectively put defendants on notice of a pending lawsuit. M.R.C.P. 4(h). Filing a

complaint marks the tolling of the statute of limitations. Watters v. Stripling, 675 So. 2d

1242, 1244 (Miss. 1996). If service of process is not perfected during that time period, the

statute of limitations begins to run at the end of that 120 days. Owens v. Mai, 891 So. 2d

220, 223 (¶18) (Miss. 2005). Where a defendant is not properly served and the statute of

limitations expires, dismissal of the plaintiff’s case with prejudice is warranted. Stutts v.

Miller, 37 So. 3d 1,7 (¶17) (Miss. 2010).

       I.     FEDEX

¶9.    In this case, FedEx would be properly served with process as a corporation by delivery

of the summons and complaint to an officer, managing agent, general agent, or any other

agent authorized to receive process. M.R.C.P. 4(c)(4). But, as Hadley admits in his brief,

the only attempt to serve FedEx was via certified mail on its registered agent (CT

Corporation System), located in Flowood, Mississippi. Certified mail may be used to serve

process upon persons “outside this state.” Triple C Transp. Inc. v. Dickens, 870 So. 2d 1195,

1198-99 (¶21) (Miss. 2004) (citing M.R.C.P. 4(c)(5)). The comment to that rule provides

that “[t]he certified mail procedure is not available to serve a person within the state.” Id.

Rule 4(d)(4) makes no distinction for service between a domestic or foreign corporation. So

long as the foreign corporation does business in Mississippi, service of process is proper by

delivery to its registered agent for service of process. Miss. Code Ann. § 13-3-57 (Rev.

2012). Therefore, Hadley did not properly serve FedEx within the 120-day deadline.



                                              4
¶10.   Hadley argues that good-faith negotiations coupled with his attorney’s belief that

service of process was not an issue entitled him to a good-cause extension by the circuit

court. A plaintiff must serve defendants with process with the 120-day time frame or show

good cause as to why service was not made. Watters, 675 So. 2d at 1243. Good cause can

be established when the plaintiff demonstrates “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.” Peters v. United States, 9 F.3d 344, 345 (5th Cir.

1993). Where failure of service is the result of a third party’s conduct, evasion of service or

misleading conduct by the defendant, or understandable mitigating circumstances, good

cause may sometimes (but not always) be found. See Bloodgood v. Leatherwood, 25 So. 3d

1047, 1051-52 (¶20) (Miss. 2010); Holmes v. Coast Transit Authority, 815 So. 2d 1183, 1186

(¶12) (Miss. 2002).

¶11.   Here, there is no evidence that FedEx attempted to evade process or mislead Hadley.

The facts, as provided by both parties, reflect that Hadley waited until the day before his

statute of limitations expired to file his complaint, thereby narrowing his own window for

effective service of process. The fact that his counsel mistakenly believed that “service of

process was not an issue” is irrelevant absent some proof of improper representations by

FedEx. “A plaintiff must be diligent in serving process if he is to show good cause in failing

to serve process within 120 days.” In re Holtzman, 823 So. 2d 1180, 1184 (¶11) (Miss.

2002) (citing Bang v. Pittman, 749 So. 2d 47, 52 (¶25) (Miss. 1999)). In Holtzman, the

Mississippi Supreme Court held that a simple mistake by plaintiff’s counsel, such as



                                              5
misfiling a summons, did not warrant an extension for good cause where process was not

served within 120 days. Id. In this case, the fact that plaintiff’s counsel mistakenly believed

that any service of process issues were taken care of does not waive the duty to ensure that

all parties are served properly.

¶12.   Reliance on settlement negotiations is also an insufficient basis to establish good

cause for an extension of time to serve process. Holmes v. Coast Transit Auth., 815 So. 2d

1183, 1186-87 (¶11) (Miss 2002). In Holmes, the plaintiff failed to properly serve a

governmental entity within the 120-day time frame due to the mistaken belief by plaintiff’s

counsel that the defendant had accepted service. Id. at 1184 (¶4). When the circuit court

dismissed the case, the plaintiff argued on appeal that the defendant mistakenly led counsel

to believe service of process was accepted and that settlement negotiations were ongoing.

Id. at 1186 (¶10). The Court rejected this argument and found that “[r]eliance on indefinite

good faith negotiations clearly subverts the purpose of Rule 4(h), which is to bring claims

to a court for judicial review in a timely manner.” Id. at 1187 (¶14). The rationale of the

Holmes Court was not to punish plaintiffs who diligently seek to serve process but to

encourage parties to engage in settlement negotiations while properly and timely giving

plaintiffs their day in court. Id. Hadley’s case, while dealing with a corporation rather than

a governmental entity, is nevertheless similar in circumstances and warrants the same result.

Neither mistake of counsel nor ongoing settlement negotiations relieves a plaintiff from

adhering to service-of-process rules.

¶13.   Finally, Hadley argues that FedEx potentially waived its service of process defenses



                                              6
“based upon the facts of this case.” But the waiver of affirmative defenses occurs where

there is substantial and unreasonable delay plus active participation in litigation. Estate of

Puckett v. Clement, 238 So. 3d 1139, 1145 (¶10) (Miss. 2018). Here, FedEx filed its answer

less than one month after the plaintiff’s improper service, asserted its improper service of

process defenses, and then filed its Motion to Dismiss based upon the failure to properly

serve within one month of filing its answer. Such conduct does not constitute a waiver under

Mississippi law.

¶14.   The circuit court found that ongoing settlement negotiations and a mistaken belief that

service of process was not an issue failed to establish good cause for an extension of time to

serve FedEx. We find no abuse of discretion with the circuit court’s decision to deny

Hadley’s motion and dismiss the case.

       II.    OTTO

¶15.   Hadley also contends that the circuit court committed error by dismissing his claims

against Otto for failure to serve process. Otto, as an individual, could best be served with

process through personal delivery of the summons and complaint. M.R.C.P. 4(d)(1)(A). If,

after reasonable diligence, the defendant cannot be served personally, a copy of the complaint

and summons can be made “at the defendant’s usual place of abode with the defendant’s

spouse or some other person of the defendant’s family above the age of sixteen years who

is willing to receive service” and by first-class mail to the same address thereafter. M.R.C.P.

4(d)(1)(B). Additionally, Otto could have been properly served by first-class mail along with

two copies of a notice and acknowledgment and return envelope. M.R.C.P. 4(c)(3). If the



                                              7
defendant does not return the acknowledgment back to the sender under this rule, process

may be served using another proper method. Id.

¶16.   In his brief, Hadley states that there were difficulties locating Otto due to address

changes and alleged domestic-violence issues. But there is no indication that Hadley

attempted personal service or service by mail to any of Otto’s listed addresses. Hadley’s

counsel then filed a motion for additional time to serve process upon Otto approximately one

week before the 120-day deadline expired. However, he did not set the motion for hearing

or obtain a ruling on the motion. Hadley uses this motion to argue that he need only show

“cause” rather than “good cause” to warrant an extension. See Cross Creek Prod v. Scafidi,

911 So. 3d 958, 960 (¶¶5-6) (Miss. 2005). The Mississippi Supreme Court has held,

however, that “a party making a motion must ‘follow up that action by bringing it to the

attention of the judge and by requesting a hearing upon it.’ It ‘is the responsibility of the

movant to obtain a ruling from the court on motions filed by him, and failure to do so

constitutes a waiver of same.’” Billiot v. State, 454 So. 2d 445, 456 (Miss. 1984) (citing

Sharplin v. State, 357 So. 2d 940, 942 (Miss. 1978)). By failing to set his original motion

for hearing or obtain an order, Hadley waived that motion.

¶17.   Following the motion, Hadley’s only attempt to serve Otto was by publication in the

DeSoto Times Tribune. However, Rule 4(c)(4)(A) allows for service by publication only in

chancery court proceedings or other proceedings “where process by publication is authorized

by statute.” No such statute exists in this case—a circuit-court lawsuit for monetary

damages. In fact, Mississippi case law acknowledges that where a plaintiff seeks “a valid



                                             8
judgment imposing a personal obligation or duty . . . against [a] defendant,” such as an award

of monetary damages, service by publication is insufficient. Noble v. Noble, 502 So. 2d 317,

320 (Miss. 1987). Such process constitutes merely “constructive notice” and prevents a case

like Hadley’s from falling under the purview of the court’s jurisdiction. Id.

¶18.   Hadley acknowledged “difficulties” in locating Otto in his brief, including potential

address changes and domestic-violence issues. But Hadley never indicated that he made

diligent efforts to personally serve Otto or use other means of service. Because Hadley only

attempted to constructively serve Otto by publication, the Court finds that Otto was never

properly served.

¶19.   Hadley filed his second motion for an extension along with his response to Otto’s

motion to dismiss, arguing, as he does in his brief, that good cause existed to warrant an

extension. Where a plaintiff has not proven diligence in attempting to serve the defendant,

the Court will not find good cause for extension. Estate of Puckett v. Clement, 238 So. 3d

1139, 1148 (¶25) (Miss. 2018). Based upon the facts before this Court, we disagree with

Hadley that good cause was shown in his efforts to serve Otto. Because the statute of

limitations ran before Otto was properly served, the circuit court acted within its discretion

to dismiss the case.

       III.   J. DELIVERY SERVICES

¶20.   Finally, Hadley contends that the circuit court erred when it denied his motion to

amend the complaint to add J. Delivery Services, an independent contractor for FedEx that

was Otto’s actual employer. “A party may amend a pleading as a matter of course at any



                                              9
time before a responsive pleading is served, . . . [o]therwise a party may amend a pleading

only by leave of court or upon written consent of the adverse party. . . .” M.R.C.P. 15(a).

Amendments should be freely given unless the proposed amendment would still render the

claim futile. Jones v. Lovett, 755 So. 2d 1243, 1247 (¶8) (Miss. Ct. App. 2000).

¶21.   Here, Hadley filed his original complaint one day before the statute of limitations ran.1

Thus, the filing of the complaint tolled that one-day limitations period for 120 days for

service of process. The circuit found that Hadley failed to properly serve both Otto and

FedEx within the 120-day deadline, allowing the one-day statute of limitations time period

to run, and the court dismissed the original complaint as time-barred. Rule 15 allows for the

amendment of a complaint either during the limitations time period or after the statute of

limitations has run, so long as that amended complaint relates back to the original complaint.

M.R.C.P. 15. The requirements of Rule 15(c) “must be fulfilled before the statute of

limitations has run or within 120 days of the filing of the original complaint.” Brown v.

Winn-Dixie Montgomery Inc., 669 So. 2d 92, 94 (Miss. 1996) (citing Schiavone v. Fortune,

477 U.S. 21 (1986)). Because Hadley failed to properly serve Otto and FedEx, thereby

dismissing the original complaint as time-barred, this Court agrees with the circuit court that

the motion for leave to amend the complaint was moot. As such, the circuit court was within

its discretion to deny Hadley’s motion for leave to amend the complaint.

                                      CONCLUSION

¶22.   Hadley filed this lawsuit one day before the statute of limitations expired. As such,

       1
       The three-year statute of limitations would be applicable in this case. See Miss.
Code Ann. § 15-1-49 (1990).

                                              10
the statute of limitations period was only tolled for 120 days unless an extension was properly

granted. Hadley failed to obtain a ruling on his prior motion for extension and failed to

demonstrate good cause for extension before the circuit court on his second untimely motion.

Both FedEx and Otto were not effectively served with process before the statute of

limitations expired, and therefore their claims were properly dismissed. Furthermore, the

circuit court was within its discretion to deny Hadley’s motion for leave to amend the

complaint because the dismissal of the original complaint rendered the amendment futile.

For the foregoing reasons, we affirm the circuit court’s judgment.

¶23.   AFFIRMED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ.,
CONCUR.




                                              11
