                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2016-CA-01157-SCT

STACY TRIPLETT

v.

SOUTHERN HENS, INC.


DATE OF JUDGMENT:                          07/13/2016
TRIAL JUDGE:                               HON. DAL WILLIAMSON
TRIAL COURT ATTORNEYS:                     GARY DALE THRASH
                                           CHRISTOPHER RAY FONTAN
                                           STEPHEN J. CARMODY
                                           EUGENE M. HARLOW
                                           ADAM FRAZIER THRASH
                                           LAUREN OAKS LAWHORN
COURT FROM WHICH APPEALED:                 JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   ADAM FRAZIER THRASH
                                           GARY DALE THRASH
ATTORNEYS FOR APPELLEE:                    STEPHEN J. CARMODY
                                           CHRISTOPHER RAY FONTAN
NATURE OF THE CASE:                        CIVIL - TORTS - OTHER THAN PERSONAL
                                           INJURY & PROPERTY DAMAGE
DISPOSITION:                               AFFIRMED - 03/15/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.

       ISHEE, JUSTICE, FOR THE COURT:

¶1.    Stacy Triplett filed three lawsuits against her former employer, Southern Hens—all

stemming from an incident in which Triplett, while working, witnessed the gruesome death

of a coworker. This incident caused Triplett mental anguish leading to an award of workers’

compensation benefits. After Triplett allegedly incurred some trouble in collecting her award
of workers’ compensation benefits, Triplett sued Southern Hens and Southern Hens’s carrier,

Liberty Mutual. Triplett’s first lawsuit against Southern Hens, for failure to pay, ultimately

was dismissed. Triplett then filed a second lawsuit against Southern Hens in the Jones

County Circuit Court, this time for failure to report. But for whatever reason, Triplett failed

to serve Southern Hens within 120 days, as required under Mississippi Rule of Civil

Procedure 4(h).

¶2.    With no official court action on her second suit, and admittedly knowing that she

could not show good cause for failure to serve in the second suit, Triplett filed a third suit

against Southern Hens in the Jones County Circuit Court. This suit, like Triplett’s second

one, was for failure to report. Aware of the second suit, the circuit court dismissed Triplett’s

third suit as an impermissible duplicative suit. Triplett appeals. Finding no error, we affirm.

                        FACTS AND PROCEDURAL HISTORY

¶3.    In early September 2012, Triplett, an employee at Southern Hens working the night

shift, witnessed the gruesome death of a coworker. The incident caused Triplett emotional

trauma—for which she sought the medical treatment of a physician. The treating physician

released Triplett from work and prescribed her medication coupled with counseling sessions.

¶4.    While these facts are disputed, Triplett claims that Southern Hens received notice that

her injury was work-related on several occasions between September 9, 2012, and October

10, 2012. Triplett claims that Southern Hens failed to timely report the claim to the insurer,

Liberty Mutual—which led to an inexcusable delay of Triplett receiving her benefits. And

so, in July 2013, Triplett filed a petition to controvert her claim with the Mississippi



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Workers’ Compensation Commission (the Commission), alleging that she had suffered a

compensable injury in the course of her employment and she had suffered a disability as a

result. Then in August 2013, Triplett filed a motion to compel medical benefits and weekly

compensation against the employer and carrier. On October 17, 2013, the judge for the

Commission entered an order in which the judge found no medical evidence to dispute

Triplett’s total-disability claim and also awarded Triplett a ten-percent penalty for untimely

paid benefits. After the award, however, Triplett had trouble collecting the scheduled benefit

payments from the insurer. Triplett’s trouble in receiving timely payments led to three

different lawsuits.

¶5.    First, on April 9, 2014, Triplett filed suit against Southern Hens and Liberty Mutual

in the Jones County Circuit Court (Triplett I). In this suit, Triplett sued Southern Hens and

Liberty Mutual for alleged bad faith and gross negligence relating to their alleged failure to

pay her workers’ compensation benefits in a timely manner. On May 13, 2014, Southern

Hens and Liberty Mutual jointly removed the case to the United States District Court for the

Southern District of Mississippi. On August 27, 2014, the United States District Court

granted Southern Hens’s Rule 12(b)(6) motion and dismissed Triplett’s failure-to-pay lawsuit

against Southern Hens. Specifically, the district court ruled that Triplett had failed to state

a claim for relief against Southern Hens for alleged bad faith or gross negligence.

¶6.    Nearly ten months after filing her first suit, on June 9, 2015, Triplett filed a second

suit against Southern Hens, again in the Jones County Circuit Court (Triplett II). This time,

Triplett sued only Southern Hens, and did so under a new theory of liability—alleged bad



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faith and gross negligence in failing to report her claim to Liberty Mutual in a timely manner.

Even though she filed the claim, Triplett failed to serve Southern Hens with process within

the mandatory 120-day period prescribed under the Mississippi Rules of Civil Procedure.

¶7.    On December 22, 2015, with Triplett II still pending in the same court, Triplett filed

a third lawsuit against Southern Hens in the Jones County Circuit Court (Triplett III). The

legal theory on which Triplett sued on in this suit was the same as it was in Triplett II—bad

faith failure to report. Then on March 7, 2016, Southern Hens moved to dismiss Triplett

III. At the time it filed its motion, Southern Hens was unaware that Triplett II even

existed—because the company never had been served with process in that suit. Oral

argument on Southern Hens’ motion was heard, and during the hearing, Triplett’s counsel

notified Southern Hens and the circuit court of the existence of Triplett II—including the

fact that Triplett never had served Southern Hens with process in that case. Following the

hearing, the circuit court ordered both parties to provide supplemental briefing on the issue

of whether Triplett II tolled the statute of limitations for purposes of Triplett III.

¶8.    On May 23, 2016, the circuit court dismissed Triplett II. And then finally, after

reviewing the supplemental briefing, the circuit court dismissed Triplett III on July 13, 2016.

The basis for the circuit court’s dismissal was that—by filing Triplett III—Triplett had

violated Mississippi’s rule prohibiting duplicative litigation (claim-splitting). The circuit

court, however, declined to address the statute-of-limitations issue—as it was not dispositive.

¶9.    On August 8, 2016, Triplett appealed the circuit court’s dismissal of Triplett III.

                                STANDARD OF REVIEW



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¶10.   A motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure

presents an issue of law, and it is reviewed de novo. Cook v. Brown, 909 So. 2d 1075, 1077-

78 (Miss. 2005). Indeed, a Rule 12(b)(6) motion for failure to state a claim “tests the legal

sufficiency of the complaint.” Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So. 2d 1234,

1243 (Miss. 1999). This Court must affirm the grant of the circuit court’s motion to dismiss

if, taking the allegations in the complaint as true, there is no set of facts that would allow the

plaintiff to prevail. Poindexter v. Southern United Fire Ins. Co., 838 So. 2d 964, 966–67

(Miss. 2003).

                                        DISCUSSION

¶11.   On appeal, Triplett argues that the circuit court erred in finding that, by filing her third

lawsuit against Southern Hens while her second lawsuit was still pending, she violated

Mississippi’s prohibition on duplicative actions.

¶12.   Under Mississippi law, plaintiffs are prohibited from bringing duplicative actions. See

Carpenter v. Kenneth Thompson Builder Inc., 186 So. 3d 820, 824-827 (Miss. 2014).1 This

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           We find it important to note that—as for the duplicative-claim analysis—the
majority’s opinion in Carpenter garnered only a plurality of the votes of this Court. But the
concerns which kept the separate opinion in Carpenter from joining the majority opinion
do not apply here. For one, the separate opinion, authored by Justice Lamar, took issue with
the particular facts of Carpenter. Specifically, the separate opinion did not agree that, in that
case, the identity-of-the-parties element was met. Carpenter, 186 So. 3d at 828 (Lamar, J.,
concurring in part, dissenting in part). But Carpenter involved multiple defendants, and
here, it is undisputed that Triplett II and Triplett III both dealt with the same singular
defendant—Southern Hens. What is more, the separate opinion in Carpenter seems to
suggests that in this case, on these facts, there would be an impermissible duplicative action.
Indeed, the separate opinion noted that “[t]he majority correctly state[d] that ‘plaintiffs have
no right to maintain two actions on the same subject in the same court, against the same
defendant at the same time.’” Id. (quoting Curtis v. Citibank, 226 F. 3d 133, 139 (2d Cir.
2000)). And here, you have two actions (Triplett II and III), on the same subject (failure

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rule finds its roots in the policy rationale of judicial economy: it works to prevent the waste

of scarce judicial resources and to foster “the efficient and comprehensive disposition of

cases.” Id. at 824 (citing Katz v. Gerardi, 655 F. 3d 1212, 1217 (10th Cir. 2011)). Indeed,

we have held “[p]laintiffs have no right to maintain two actions on the same subject in the

same court, against the same defendant at the same time.” Id. (quoting Curtis v. Citibank,

226 F.3d 133, 139 (2d Cir. 2000)). And “[u]nlike the doctrine of res judicata, a final

judgment is not required in order to apply a claim-splitting analysis; rather, the test is

‘whether the first suit, assuming it were final, would preclude the second suit.’” Id. at 825

(quoting Katz, 655 F. 3d at 1218-19).

¶13.   Here, Triplett meets the test for duplicative actions as set forth in Carpenter. First,

Triplett was maintaining two actions (Triplett II and III), on the same subject (bad-faith

failure to report), against the same defendant (Southern Hens), at the same time. See

Carpenter, 186 So. 3d at 824. And if this Court were to assume that Triplett’s second suit

against Southern Hens, for bad-faith failure to report, was final, it certainly would have

precluded her third suit against Southern Hens, which also was for bad-faith failure to report.

See id. at 825.

¶14.   But Triplett contends that her case fails to meet this test. In fact, Triplett argues that

she was not maintaining two actions at the same time. In making this assertion, Triplett

argues that when she filed her third case, the second suit already was nullified due to her

failure to serve process under Rule 4(h). Triplett’s argument, simply put, is that there was


to report), filed in the same court (Jones County Circuit Court), against the same defendant
(Southern Hens), and at the same time.

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no duplicative action here because her second suit was dismissed by operation of Rule 4(h).

¶15.   Rule 4(h) requires service of the summons and complaint within 120 days of filing of

the complaint, or the action shall be dismissed without prejudice unless “good cause” can be

shown as to why service was not made within that period. M.R.C.P. 4(h). Triplett admits

that she did not possess “good cause” as required under Rule 4(h). Instead, what Triplett

argues is that, once the 120-day period had passed, her second case (Triplett II) was

dismissed by operation of Rule 4(h). In other words, Triplett’s position is that the circuit

court need not dispose of the action for it to be dismissed. But this argument runs counter

to this Court’s holding that, even after the 120-day period for service of process lapses, the

trial court must formally dismiss the complaint before it becomes a nullity. Crumpton v.

Hegwood, 740 So. 2d 292, 294 (Miss. 1999) (holding that, at the end of the 120 days

provided for under Rule 4(h), the statute-of-limitations period begins to run again, but the

complaint itself is not automatically dismissed).

¶16.   Here, despite the fact that Triplett admittedly had no basis to seek an extension of time

to effectuate service of process, the circuit court did not dismiss Triplett II until May 23,

2016—five months after she had filed the duplicative suit, Triplett III. And so Triplett’s

second suit, despite her argument, technically was being maintained at the time she filed her

third suit. Because of this, we find Triplett’s argument—that she was not maintaining two

actions at the same time—unpersuasive.

¶17.   Next, in support of her contention that she was not maintaining two suits at the same

time, Triplett argues that, at the time the order dismissing her third suit was rendered, her



                                               7
second suit had been formally terminated. And so Triplett argues that she was not

maintaining her second suit. We also find this argument unpersuasive. Triplett violated the

prohibition of duplicative actions at the moment she filed her third suit, on December 22,

2015. At that time, both of Triplett’s suits (Triplett II and Triplett III) were active, and thus,

her third suit became null. That her second suit was dismissed before the circuit court’s order

dismissing her third suit is irrelevant.

¶18.   And finally, Triplett argues that there was no evidence that she filed her third action

to improperly extend a procedural right that she otherwise would not have had. Indeed in

Carpenter, we quoted an opinion from the Tenth Circuit Court of Appeals explaining that

“a plaintiff may not use the tactic of filing two substantially identical complaints to expand

the procedural rights he would have otherwise enjoyed.” Carpenter, 186 So. 3d at 824

(quoting Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F. 3d 982, 990 (10th

Cir. 2002) (internal quotations omitted)). That said, we find this argument unpersuasive. For

one, under Carpenter, this is not the conclusive test for whether a plaintiff has violated the

prohibition on duplicative actions; it is but a part of a broader consideration. Also, contrary

to Triplett’s assertion here, the record shows that, in filing her third suit, Triplett did extend

a procedural right which she otherwise would not enjoy. Indeed, filing the third suit—had

the circuit court allowed it to proceed—would have tolled the statute of limitations for her

bad-faith, failure-to-report claim.

¶19.   As for the Carpenter case itself, Triplett argues that the facts of that case are wholly

distinguishable from the facts here. Indeed, in Carpenter, the plaintiff, a year after filing her



                                                8
suit, moved to amend the complaint to add new defendants. Carpenter, 186 So. 3d at 822.

The motion to amend was filed within the statute of limitations. Id. Later, the plaintiff filed

a second motion seeking leave to amend her complaint and unsuccessfully attempted to set

a hearing on the motion before the expiration of the statute of limitations. Id. at 823. The

circuit court ultimately approved the second amended complaint—after the statute of

limitations had run. Id. Anticipating that the amendment would not be granted, the plaintiff

filed a second complaint prior to the statute-of-limitations deadline. Id. The defendant then

moved to dismiss both cases, and the circuit court dismissed the second suit, finding that it

impermissibly split the plaintiff’s claim. Id. On appeal, this Court affirmed the circuit-court

judgment, holding that plaintiffs have no right to maintain two actions on the same subject,

in the same court, against the same defendant, at the same time. Id. at 824.

¶20.   We recognize that the facts of Triplett’s case are not the same as the facts of

Carpenter. Triplett was not awaiting a ruling on a motion before the circuit court; however,

the plaintiff in Carpenter was. Additionally, the plaintiff in Carpenter filed the second

action to bar the newly discovered defendants from raising a statute-of-limitations defense;

while here, Triplett filed Triplett III against the same defendant (Southern Hens). So, while

we are cognizant of the fact that these cases are not factually similar, we find that Carpenter

is important here, not because of its specific facts, but because of the rule set forth in the

opinion. And this rule gives us a test, which, as we explained above, is met here.

¶21.   What is more, in expounding upon the rule prohibiting duplicative claims, this Court

in Carpenter relied on a case from the Seventh Circuit Court of Appeals that is factually



                                              9
similar to Triplett’s case here. See Carpenter, 186 So. 3d at 826; see also Serlin v. Arthur

Anderson & Co., 3 F.3d 221 (7th Cir. 1993). In Serlin, the defendants moved to dismiss a

complaint on grounds that it was not served within the time limits as set forth in Rule 4(j) of

the Federal Rules of Civil Procedure. Serlin, 3 F.3d at 223. Realizing that the motion might

not be ruled upon within the applicable statute of limitations, the plaintiff in Serlin filed a

second complaint in the same court, against the same defendant. Id. Upon motion by the

defendant, the trial court dismissed the plaintiff’s second complaint as duplicative of his first

one. Id. On appeal, the Seventh Circuit affirmed the dismissal as a duplicative action, which

it found was filed in an attempt to preserve a claim after the plaintiff had failed to serve

process in conformance with the rules in the original action. Id. at 221.

¶22.   The facts of Serlin are similar to the facts here. Like the plaintiff in Serlin, Triplett,

in Triplett II, failed to serve process on the defendants within the time frame (120 days)

required under the rules. And so, knowing she could not show good cause, Triplett, just as

like the plaintiff in Serlin, filed another suit, Triplett III—alleging the same cause of action,

against the same defendant, in the same court. In fact, the only difference between the two

cases is that in Serlin, there was a pending motion to dismiss for failure to timely serve

process; where as here, there was no pending action on Triplett II relating to Triplett’s failure

to timely serve process. Indeed, the record shows that Southern Hens was not even aware

of the second suit, Triplett II, for failure to report—as it had not been served with process.

¶23.   That Triplett may find herself outside of the statute of limitations due to Triplett III

being declared null is of no consequence. As the Seventh Circuit noted in Serlin, “even if



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[the plaintiff] eventually does find himself out of court, that result will be entirely a

consequence of the plaintiff’s own failure to follow the rules.” Serlin, 3 F.3d at 224.

Additionally, the Serlin Court further noted that the plaintiff had legitimate methods to

preserve his claim—for example, he could have promptly and voluntarily dismissed the case

and then refiled it with proper service. Id. Here, by not effectuating service within 120

days, Triplett, like the plaintiff in Serlin, failed to follow the rules. And just as the Seventh

Circuit noted, Triplett, like the plaintiff in Serlin, could have used legitimate means to

preserve her claim—such as voluntarily dismissing Triplett II. But Triplett did not do this;

she instead chose to file a duplicative claim in the same court, regarding the same matter,

against the same defendant.

                                       CONCLUSION

¶24.   In sum, we find that Triplett—by filing Triplett III while Triplett II was still

pending—violated the prohibition against duplicative actions. Indeed, Triplett III was filed

against the same defendant as in Triplett II (Southern Hens), in the same court as Triplett II

(Jones County Circuit Court), and Triplett III sought the same relief sought in Triplett II

(bad-faith failure to report). And so this Court must ask “whether the first suit, assuming it

were final, would preclude the second suit.” See Carpenter, 186 So. 3d at 825 (quoting Katz,

655 F. 3d at 1218-19). And to that end, we find that it would. For these reasons, we affirm

the circuit court’s dismissal of Triplett III as an impermissible duplicative action.

¶25.   AFFIRMED.

       WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN,



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MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.




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