        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-00200-COA

TEIAWAN COX                                                                APPELLANT

v.

SMG AND CAPITAL CITY CONVENTION                                            APPELLEES
CENTER COMMISSION D/B/A JACKSON
CONVENTION CENTER COMPLEX

DATE OF JUDGMENT:                         01/27/2016
TRIAL JUDGE:                              HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT,
                                          FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   JAWANZA KOBIE WATSON
ATTORNEY FOR APPELLEES:                   MICHAEL D. SIMMONS
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              REVERSED AND REMANDED: 09/05/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       FAIR, J., FOR THE COURT:

¶1.    In late 2013, Teiawan Cox filed a personal injury lawsuit against SMG and the Capital

City Convention Center Commission, alleging that she was injured as a result of an unsafe

condition at the Jackson Convention Center Complex. Cox did not have process issued for

any of the named defendants, and the case sat on the docket for more than a year and a half

before Cox filed a motion for an extension of time to serve process. On July 24, 2015, she

filed an amended complaint and had process issued for SMG and the Convention Center,

who were apparently then served. SMG and the Convention Center filed answers on

September 3, 2015, that did not assert deficiency of service of process as a defense. On
October 30, 2015, they filed motions to amend their answers to raise that defense.

¶2.    The trial court ultimately entered an order denying the motion for an extension of time

to serve process. It further found the motions to amend the answers moot, and the same day

also entered a final judgment dismissing the case without prejudice for insufficiency of

process. On appeal, Cox contends that SMG and the Convention Center waived the defense

of insufficiency of process by failing to assert it in their answer. We agree, and we reverse

the dismissal and remand the case for further proceedings consistent with this opinion.

                                       DISCUSSION

¶3.    The question of the sufficiency of the process is not at issue on appeal, nor whether

the trial court should have granted an extension of time to serve process. The only issue

raised by Cox is whether the defense of insufficiency of process was waived.

¶4.    Mississippi Rule of Civil Procedure 12(h)(1) provides that a defense of insufficiency

of process is waived if it is not raised in a pre-answer motion or in the answer. Mississippi

courts “have consistently held that failure to assert the defense in an answer, motion, or other

pre-responsive pleading is a waiver that will be enforced.” U.S. Bancorp v. McMullan, 183

So. 3d 833, 836 (¶10) (Miss. 2016) (citation omitted).

¶5.    Burleson v. Lathem, 968 So. 2d 930, 935-36 (¶¶14-15) (Miss. 2007), is almost exactly

on point. There, the service of the summons was untimely, as it was in our case. The

defendant did not raise the defense of insufficiency of process in its answer, and the

Mississippi Supreme Court found the defense to have been waived. See id.


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¶6.    SMG and the Convention Center attempt to distinguish this case from Burleson by the

fact that, unlike the defendant there, they filed motions to amend their answers to include the

defense. These motions were filed outside the thirty days allowed for amendment as a matter

of course under Mississippi Rule of Civil Procedure 15(a), so SMG and the Convention

Center requested leave of the court to amend the answers, as the Mississippi Supreme Court

has held to be potentially allowed under Rule 15(a). But the trial court never granted those

motions, apparently finding them to be moot.

¶7.    On appeal SMG and the Convention Center suggest that we should nonetheless affirm

the trial court here because it “likely would have granted the motion” had it recognized it as

a predicate to dismissal, instead of denying it as moot. We agree that the motions were not

moot, but we cannot, as they urge, affirm the trial court because the motions “likely” would

have been granted.

¶8.    First of all, the law governing the motions is not so clear as SMG and the Convention

Center suggest. It is true that our supreme court has, at least twice, stated that the issue of

untimely/insufficient service of process may be raised in an amended answer filed with leave

of court under Rule 15. Rains v. Gardner, 731 So. 2d 1192, 1197 (¶17) (Miss. 1999); accord

Burleson, 968 So. 2d at 934-36 (¶¶12 & 14). While we (and the trial court) are bound to

follow that precedent, it does not appear to be consistent with the text of the rules or the

holdings of other courts. Rule 12(h)(1) provides that the defense of insufficiency of process

“is waived” if it is not asserted in a party’s answer “or an amendment thereof permitted by


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Rule 15(a) to be made as a matter of course.” The rule’s advisory committee note similarly

states that a party “must raise” insufficient service of process and other enumerated defenses

“in the answer or an amended answer made as a matter of course pursuant to Rule 15(a) to

avoid waiver of such defenses.”1 As we read its text, Rule 12(h)(1) permits a party to assert

these specified defenses in an amended answer only if the amended answer is one permitted

as a matter of course under Rule 15(a), and not if leave of court is required. That appears to

be the prevailing interpretation of the parallel federal rule. See Glater v. Eli Lilly & Co., 712

F.2d 735, 738 (1st Cir. 1983); Morgan Guar. Tr. Co. of N.Y. v. Blum, 649 F.2d 342, 345 (5th

Cir. 1981); Konigsberg v. Shute, 435 F.2d 551, 552 (3d Cir. 1970); Miller v. Batesville

Casket Co., 219 F.R.D. 56 (E.D.N.Y. 2003); 5C Wright & Miller, Federal Practice and

Procedure § 1391 (2004).

¶9.    Moreover, even if it is permissible to grant leave to amend, it should be “freely given”

– but only “when justice so requires.” M.R.C.P. 15(a). “[L]iberality in permitting

amendments is not allowed to encourage delay, laches and negligence.” Natural Mother v.

Paternal Aunt, 583 So. 2d 614, 617 (Miss. 1991) (citation omitted). Appellate courts have

“consistently affirmed . . . denial of an amendment where the party requesting the amendment

has not exercised due diligence.” Id.


       1
         The advisory committee “notes, while not official comments of the Supreme Court,
are the product of extensive research and review and have been vetted by the members of
the [Supreme Court Rules Advisory] Committee as well as other trial judges and practicing
members of the bar.” Order Adopting the Mississippi Rules of Civil Procedure Advisory
Committee Notes, No. 89-R-99001-SCT (Miss. June 9, 2014).

                                               4
¶10.   Whether to grant leave to amend a pleading is entrusted to the sound discretion of the

trial court. Id. at 616-17. We cannot say that discretion could only have been exercised to

grant the motion for leave to amend.

¶11.   SMG and the Convention Center also seem to contend that, although they may have

waived the defense of insufficiency of process, the trial court could still dismiss the action

on its own initiative pursuant to Mississippi Rule of Civil Procedure 4(h). Rule 4(h) could

indeed be read to permit or even require a court to dismiss an untimely served complaint even

if the defendant has already waived the defense, though SMG and the Convention Center

present no authority to that effect, and the authorities of which we are aware do not support

it. Construing the parallel federal rule,2 the Second Circuit held that Rule 4 and Rule 12(h)

concerning waiver of defenses must be read together, and therefore Rule 4’s “provision that

the court may dismiss for untimely service on its own motion does not mean that the court

may revive a service-of-process defense that the defendant has waived.” Santos v. State

Farm Fire & Cas. Co., 902 F.2d 1092, 1096 (2d Cir. 1990). Other federal courts of appeals

have reached the same conclusion. See O’Brien v. R.J. O’Brien & Assocs., 998 F.2d 1394,

1399 (7th Cir. 1993); Pusey v. Dallas Corp., 938 F.2d 498, 501 (4th Cir. 1991); Pardazi v.

Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990). The Third Circuit reasoned that

Rule 4’s “mandatory language” – requiring a court to dismiss an action if the plaintiff,



       2
         Prior to 1993, the parallel federal provision was Federal Rule of Civil Procedure
4(j). In 1993, it was moved to Rule 4(m).

                                              5
without good cause, fails to serve process within 120 days – “is applicable until” the

defendant waives the defense pursuant to Rule 12(h), and Rule 12(h), regarding waiver of

defenses, “governs thereafter.” McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 195

(3d Cir. 1998); accord Kersh v. Derozier, 851 F.2d 1509, 1511-12 (5th Cir. 1988). This is

a persuasive interpretation because, otherwise, a court could be required to dismiss a case

even if the issue of untimely service is first noticed or raised after years of litigation on the

merits.

¶12.      Accordingly, we reverse the trial court’s order dismissing SMG and the Convention

Center, and we remand this case for further proceedings consistent with this opinion.

¶13.      REVERSED AND REMANDED.

     BARNES, ISHEE, WILSON, GREENLEE AND WESTBROOKS, JJ.,
CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY LEE, C.J., GRIFFIS, P.J., AND CARLTON, J.

          IRVING, P.J., DISSENTING:

¶14.      With respect, I must dissent because, unlike the majority, I do not believe that

Burleson is controlling. For the reasons discussed below, I would affirm the judgment of the

circuit court.

¶15.      I recite the relevant facts in Burleson:

          On May 15, 2002, Mary P. Burleson, the mother and personal representative
          of Bobby Shiers, Jr., filed a complaint against [Roy Michael] Lathem in the
          Circuit Court of Warren County, asserting a claim for wrongful death on
          behalf of and for the benefit of the five minor children of the deceased. The
          summons was issued on September 12, 2002. Lathem was served with process
          on September 17, 2002, 125 days after the filing of the complaint, exceeding

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       the 120-day requirement of Mississippi Rule of Civil Procedure 4(h). On
       October 15, 2002, Lathem filed his answer to the complaint, asserting only the
       affirmative defenses of failure to state a claim upon which relief can be
       granted and improper venue.

¶16.   I do not find Burleson controlling for two reasons. First, the Burleson facts are

different from our facts in a material way. In Burleson, the initial responsive pleading was

made to the initial complaint. Second, Burleson does not address the interplay between Rule

15(a) of the Mississippi Rules of Civil Procedure, which allows a party to amend a pleading

anytime before a responsive pleading is served, and Rule 4(h) of the Mississippi Rules of

Civil Procedure, which requires that the service of the summons and complaint be made

within 120 days of the filing of the complaint. Since the initial responsive pleading in

Burleson was made to the initial complaint, the court did not reach the outcome-

determinative issue in today’s case—whether the affirmative defense of insufficiency of

service of process is waived if it is not asserted in the initial response to an amended

complaint filed, without permission of the court, more than 120 days after the date of the

filing of the initial complaint.

¶17.   SMG and the Convention Center filed an answer to an unauthorized, amended

complaint, which, in my view, is not permitted by our rules or caselaw. So they could not

waive the affirmative defense of insufficiency of process for failing to assert it in the initial

responsive pleading that they filed but were not required to file. I explain.

¶18.   Cox filed her initial lawsuit on October 13, 2013, and did not have process issued for

any of the defendants. On July 9, 2015, Cox filed a motion for an extension of time to serve

                                               7
process but did not notice the motion for hearing until December 2, 2015. In the interim, on

July 24, 2015, Cox filed an amended complaint, without permission of the court, and had

summons issued for the first time. It is the amended complaint that SMG and the Convention

Center answered, without asserting the affirmative defense of insufficiency of process.

¶19.   Although Rule 15(a) of the Mississippi Rules of Civil Procedure permits “a party to

amend a pleading as a matter of course at any time before a responsive pleading is served,”

a common-sense interpretation of the rule, in my view, compels the conclusion that the at-

any-time provision of the rule is qualified by the condition that the amended pleading does

not and cannot extend the120-day time period specified in Rule 4(h) of the Mississippi Rules

of Civil Procedure. To interpret the provision otherwise would render meaningless the

provision of Rule 4(h) that requires the service of the summons and complaint—and by

extension an amended complaint filed as a matter of course—upon a defendant within 120

days of the filing of the complaint. So when Cox failed to have her initial complaint served

within 120 days, she could not do an end-run around the requirements of Rule 4(h) by filing

an amended complaint and restarting the 120-day time period. Her only remedy was to file

a motion for an extension of time to serve process and show good cause why service of

process was not made within the 120 days required by Rule 4(h). Failing to obtain an

extension, Cox would have been required to voluntarily dismiss her complaint, assuming it

was not dismissed by the court, and file a new complaint.

¶20.   Implicit in the reasoning of the majority is the conclusion that the amended


                                             8
complaint—to which SMG and the Convention Center responded and failed to assert the

affirmative defense of insufficiency of process—extended the 120-day time period that

began to run on October 13, 2013, when Cox filed her initial complaint. I disagree, for

neither our rules nor our caselaw allows a plaintiff to split or spread her single cause of

action between two lawsuits, which is exactly what Cox attempted to do here.

¶21.   I am aware of Mississippi Comp Choice v. Clark, 981 So. 2d 955 (Miss. 2008),

holding that “Rule 15(a) does not require that a pleading be served before it may be amended;

rather, it allows a plaintiff to amend his complaint “at any time before a responsive pleading

is served.” Id. at 959 (¶12). However, in Clark, the amended complaint was filed within

120 days of the filing of the original complaint, as the original complaint was filed on

September 14, 2005, and the amended complaint on January 9, 2006, or 117 days after the

filing of the original complaint. Id. at 957 (¶5). It is noteworthy that the amended complaint

was served on the defendants on January 10, 2006, or 118 days after the filing of the original

complaint. Id. at 958 (¶7). So the original complaint was still viable when the amended

complaint was filed, and the amended complaint was served within 120 days of the filing of

the original complaint. The issue in Clark was not whether an amended complaint was

viable despite the amendment having been made as a matter of course more than 120 days

after the filing of the original complaint, but whether the substituted plaintiff named in the

amended complaint—which was served within 120 days of the original complaint—was the

real party in interest, resulting in the amended complaint relating back to the date of the filing


                                                9
of the original complaint.

¶22.   As noted, on July 9, 2015, Cox filed a motion to extend the time to serve process with

respect to her initial complaint. While that motion was pending and without dismissing her

initial complaint, Cox filed a second complaint, covering the same matter, and captioned it

an amended complaint. The circuit court denied Cox’s motion to extend the time for serving

process on SMG and the Convention Center because Cox did not even attempt to serve the

defendants within 120 days of the filing of her initial lawsuit. I find no abuse with that

ruling. It would be an absurdity to find, as does the majority, that notwithstanding the lawful

ruling of the circuit court refusing to grant an extension of time to serve process, Cox is

nevertheless entitled to pursue her lawsuit because SMG and the Convention Center

answered her amended lawsuit, which was filed, without permission of the court, three days

prior to the running of the statute of limitations and more than 120 days after the filing of her

initial complaint that she never attempted to serve.3 Had Cox dismissed her original

complaint and filed and served another complaint within the three days prior to the expiration

of the statute of limitations, everything would have been fine, but she did not do so. Rather,

she waited until after the statute of limitations had expired and sought a ruling on her motion

for an extension of time to serve process of the original complaint.

¶23.   For the reasons discussed, I dissent. As stated, I would affirm the judgment of the


       3
       The record does not inform us if the amended complaint was served within the three
days remaining before the statute of limitations ran. The docket sheet reflects that the
summons was issued, but it does not show a return.

                                               10
circuit court.

       LEE, C.J., GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION.




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