                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-CA-01866-SCT

CARLA STUTTS

v.

JANICE MILLER AND JACI MILLER


DATE OF JUDGMENT:                           10/06/2008
TRIAL JUDGE:                                HON. JAMES LAMAR ROBERTS, JR.
COURT FROM WHICH APPEALED:                  ALCORN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     THOMAS L. SWEAT, JR.
ATTORNEYS FOR APPELLEES:                    DINETIA BROOKE NEWMAN
                                            ROBERT F. STACY, JR.
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
DISPOSITION:                                AFFIRMED - 03/18/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Carla Stutts filed a complaint for damages against Janice Miller and Jaci Miller1 in the

Circuit Court of Alcorn County due to an automobile accident, which Stutts asserts was a

result of Jaci Miller’s negligent driving. The Circuit Court dismissed the complaint with

prejudice due to Carla Stutts’s failure to serve the defendants with process within 120 days,

as required by Mississippi Rule of Civil Procedure 4(h), and the expiration of the applicable




       1
       Jaci Miller was a minor at the time of the accident which led to this action; thus, her
mother, Janice Miller, also was named as a defendant.
statute of limitations. Carla Stutts appeals the trial court’s dismissal of her lawsuit to this

Court. Finding no reversible error, we affirm.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    According to the complaint filed by Carla Stutts (Stutts), she was traveling west on

Highway 72 in Corinth on September 24, 2004, when Jaci Miller, who was attempting to turn

left onto Alcorn Drive, failed to yield the right of way to Stutts, causing an automobile

accident. Stutts filed this action for damages for the injuries she sustained as a result of the

accident. Stutts asserted that Jaci’s mother, Janice Miller, was jointly and severally liable

for her damages, since Jaci Miller was a minor at the time of the accident.

¶3.    Stutts filed her complaint in the Circuit Court of Alcorn County on September 20,

2007, four days before the running of the applicable three-year statute of limitations. See

Miss. Code Ann. § 15-1-49 (Rev. 2003). Pursuant to Mississippi Rule of Civil Procedure

Rule 4(h), Stutts had 120 days after filing her complaint to serve process on the Millers. See

Miss. R. Civ. P. 4(h). The 120-day period elapsed on January 18, 2008; however, Stutts did

not serve the Millers with process until January 24, 2008, six days after the expiration of the

120-day period. Thus, the Millers filed a motion to dismiss on July 1, 2008, asserting that

the “plaintiff failed to serve either defendant within the 120 day period,” and the three-year

statute of limitations “began to run again after the 120 day period to accomplish service of

process expired. The statute of limitations expired no later than January 22, 2008.” On July

29, 2008, a hearing was held on the Millers’ motion to dismiss in the Alcorn County Circuit

Court, Judge James L. Roberts, Jr., presiding, and at the conclusion of the hearing, the trial

                                               2
court granted Stutts fourteen days to submit “good cause” affidavits. These affidavits were

filed with the trial court within the allotted time, responded to by the Millers, and considered

by the trial court.2

¶4.    The trial court ruled that “the Plaintiff’s subsequent affidavits fail to establish ‘good

cause’ as contemplated by Rule 4(h) or case law” and “[a]pplicable law is clear that a failure

to effect service of process during the 120 days, coupled with no motion for request of

extension of time, bars the Plaintiff’s claims against the Defendants due to the expiration of

the applicable three year statute of limitations contained in Miss. Code Ann. § 15-1-49.”

Thus, the trial court dismissed the case with prejudice, and Stutts subsequently perfected this

appeal.

                                        DISCUSSION

¶5.    Stutts presents eight issues to this Court for our consideration. We set out here,

verbatim, the issues submitted by Stutts:

       1. Does Rule 4(h)of the Mississippi Rules of Civil Procedure (“MRCP”) call
       for automatic dismissal of a case if summons is not served within 120 days of
       the filing of a complaint without a review of “good cause”?

       2. What judicial determination must be made concerning the “good cause” that
       must be shown if process is not served within 120 days as set forth in Rule
       4(h) of MRCP?




       2
        The Millers, through counsel, objected at the hearing to the trial court’s grant of
additional time to Stutts’s counsel to submit “good cause affidavits,” and once the affidavits
were filed with the trial court, the Millers filed a written response which asserted, inter alia,
that the trial court should not consider these affidavits.

                                               3
       3. Was good cause established in the case at bar for failing to serve process
       within 120 days required by Rule 4(h) of MRCP?

       4. Is it an abusive [sic] discretion or otherwise improper for a Court to fail to
       make a finding of facts or otherwise explain why the efforts of a party in
       attempting to serve process within the 120 days required by Rule 4(h) of
       MRCP are not good cause for failing to serve process within said timeframe?

       5. Does the specific language of Rule 4(h) of MRCP contemplate or require a
       request for additional time if good cause has been exercised in attempting to
       serve process as set forth in said rule?

       6. Although not set forth in the text of Rule 4(h) of MRCP, does failure of a
       to [sic] request additional time for service of process prevent a party from
       establishing good cause for failure to serve process in the 120 days set forth in
       Rule 4(h) of MRCP?

       7. Is it harmless error to fail to request additional time to serve process within
       the 120 days set forth in Rule 4(h) of MRCP if good faith is exercised in
       attempting to serve process during that 120 day period?

       8. It is a question of law whether the lower court correctly determined that the
       statute of limitations in this case begins to run again automatically after the
       expiration of 120 days for service of process without a judicial determination,
       or an inaccurate determination, as to the good cause of the Plaintiff failing to
       serve process within said 120 days and, accordingly, this is entitled to de novo
       review by the Appellate Court.

¶6.    The ultimate issue, however, is whether the trial court erred in dismissing Stutts’s

complaint for failure to serve the Millers within 120 days as set forth in Rule 4(h) of the

Mississippi Rules of Civil Procedure. Therefore, we now restate the critical issue before us

for the sake of clarity in discussion.

       WHETHER THE TRIAL COURT ERRED IN DISMISSING STUTTS’S
       COMPLAINT WITH PREJUDICE.




                                               4
¶7.    A trial court’s decision to grant or deny a motion to dismiss is reviewed de novo.

Scaggs v. GPCH-GP, Inc., 931 So. 2d 1274, 1275 (Miss. 2006). However, “[t]his Court

leaves to the discretion of the trial court the finding of fact on the existence of good cause or

excusable neglect for delay in serving process under Rule 4(h).” Johnson v. Thomas ex rel.

Polatsidis, 982 So. 2d 405, 409 (Miss. 2008) (quoting Long v. Mem’l Hosp. at Gulfport, 969

So. 2d 35, 38 (Miss. 2007)). Only “[w]here such discretion is abused or is not supported by

substantial evidence” will this Court reverse. Id.3

¶8.    Mississippi Rule of Civil Procedure 4(h) states:

       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.

Miss. R. Civ. P. 4(h).



       3
         Even though the practical effect of allowing these “outside-the-pleadings” affidavits
could be converting a Rule 12(b)(6) motion to dismiss to a Mississippi Rule of Civil
Procedure 56 motion for summary judgment, the trial court’s allowing Stutts the opportunity
to file these “good-cause affidavits” worked to Stutts’s advantage. See Miss. R. Civ. P.
12(b); Jones v. Jackson Pub. Schools, 760 So. 2d 730, 731 (Miss. 2000). Thus, Stutts had
no cause to complain of this procedure, nor did the Millers cross-appeal on this issue.
Additionally, while no summary judgment procedure was discussed at the hearing, the trial
judge gave Stutts fourteen days to submit these affidavits, with the Millers having the
opportunity thereafter to respond. See, e.g. Sullivan v. Tullos, 19 So. 3d 1271, 1274-76
(Miss. 2009) (citing Jones v. Regency Toyota, Inc., 798 So. 2d 474 (Miss. 2001)). Finally,
we note that the trial judge acknowledged in his order that he had before him the Millers’
motion to dismiss filed “pursuant to Rule 12(b)(5) and/or 12(b)(6).” Of course, the “matters-
outside-the-pleadings” language found in Rule 12(b), which converts a Rule 12(b)(6) motion
(failure to state a claim upon which relief can be granted) to a Rule 56 motion for summary
judgment requiring appropriate notice to the parties concerning the conversion, does not
apply to Rule 12(b)(5).

                                               5
¶9.    Thus, Rule 4(h) provides that a complaint will be dismissed only if the plaintiff cannot

show good cause for failing to serve process within 120 days. Holmes v. Coast Transit

Auth., 815 So. 2d 1183, 1185 (Miss. 2002). This Court has held that “a plaintiff attempting

to establish ‘good cause’ must show ‘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.’” Id. at 1186 (quoting Watters v. Stripling, 675 So. 2d 1242,

1243 (Miss. 1996); Systems Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013

(5th Cir. 1990)). See also Heard v. Remy, 937 So. 2d 939, 944 (Miss. 2006).

¶10.   In today’s case, Stutts filed her complaint on September 20, 2007, and had 120 days

from that date to serve process on the Millers. The 120-day period expired on January 18,

2008, and Stutts did not serve process on the Millers until January 24, 2008. Therefore,

Stutts’s complaint was properly dismissed if she was unable to show good cause for the

untimely service of process. The trial court determined that Stutts had failed to establish

good cause.4

¶11.   Stutts argues that the trial court “perfunctorily and arbitrarily declared that no good

cause was established for failure to serve process as required under Rule 4(h), and said Court

failed to make any finding of facts or provide any rationale as to its decision.” The record

before us in today’s case unquestionably is scant concerning any findings of fact by the trial



       4
        In its Order granting the Defendants’ Motion to Dismiss and dismissing Stutts’s
complaint with prejudice, the trial court stated that “the Plaintiff’s subsequent affidavits fail
to establish ‘good cause’ as contemplated by Rule 4(h) or case law.”

                                               6
court. As already noted, the trial court dismissed Stutts’s complaint, finding that “the

Plaintiff’s subsequent affidavits fail to establish ‘good cause’ as contemplated by Rule 4(h)

or case law” and “[a]pplicable law is clear that a failure to effect service of process during

the 120 days, coupled with no motion for request of extension of time, bars the Plaintiff’s

claims against the Defendants due to the expiration of the applicable three year statute of

limitations contained in Miss. Code Ann. § 15-1-49.” Without a doubt, we prefer to have in

the appellate record a trial court’s specific findings of fact on the issue before us. A trial

court’s failure to include specific findings of fact on an issue may be fatal error. See, e.g.,

Floyd v. Floyd, 949 So. 2d 26, 29-30 (Miss. 2007) (chancellor’s failure to make specific on-

the-record findings to support decision on child-custody issue required reversal); Martin v.

Lowery, 912 So. 2d 461, 466-67 (Miss. 2005) (chancellor’s failure to make specific, on-the-

record findings to support denial of motion to dismiss for failure to effectuate process under

Mississippi Rule of Civil Procedure 4(h) required reversal because this Court was “unable

to derive what finding the [chancery court] ‘ought to have made.’”). In Martin, we reiterated

how we would review a trial court’s ruling on a Rule 4(h) issue:

       In determining good cause this Court has held that the decision “would be a
       discretionary ruling on the part of the trial court and entitled to deferential
       review of whether the trial court abused its discretion and whether there was
       substantial evidence supporting the determination.” Rains v. Gardner, 731 So.
       2d 1192, 1197 (Miss. 1999).

Id. at 466. However, in Martin, this Court further stated we would “sometimes assume” that

the trial court made findings of fact which were deemed to be sufficient to support its

decision. Id. (citing Pace v. Owens, 511 So. 2d 489, 492 (Miss. 1987)). Because this Court

                                              7
was unable to determine from the record whether the chancellor’s denial of the motion to

dismiss pursuant to Rule 4(h) was “based on substantial evidence,” the case was reversed and

remanded. Id. at 467. Cf. Gavin v. State, 473 So. 2d 952, 955 (Miss. 1985) (trial court’s

denial of defendant’s motion to suppress inculpatory statement affirmed despite failure to

make on-the-record findings on voluntariness of statement, based on evidence in appellate

record sufficient to support trial court’s ruling).

¶12.   Thus, the determination of whether a trial court’s failure to make on-the-record

findings of fact to support its decision is reversible error necessarily must be made on a case-

by-case basis.

¶13.   We thus turn to the record before us in today’s case. Stutts argues that her efforts to

locate and serve process on the Millers constituted good cause, and she offered ten affidavits

in support of her argument. Stutts’s attorney stated in his affidavit that he sent a process

server to the address he had for the Millers in late September or early October 2007, only to

learn that the Millers no longer lived there. Stutts’s attorney also stated that he had checked

local telephone directories for addresses or telephone numbers in early October 2007 to no

avail, and he had contacted young men around the age of Jaci Miller for contact information

in the fall of 2007, but also to no avail. The affidavits of two Alcorn County constables, an

employee of the Alcorn County Tax Collector’s Office, a former Alcorn County supervisor,

an Alcorn County Justice Court employee, a former Alcorn County deputy sheriff, and a

Kossuth Middle School teacher, all provided essentially the same information – that they had

been contacted by Stutts’s attorney, or the attorney’s secretary, in either September, October,

                                               8
or the fall of 2007, for contact or location information regarding the Millers. Five of these

affidavits simply referenced the fall of 2007 without being more specific as to when the

affiants were contacted for information. All seven of the persons contacted were unaware

of the information requested other than the address where Stutts’s attorney previously had

attempted service on the Millers. The affidavit of the secretary for Stutts’s attorney related

the same attempts to obtain information related to the Millers, and in addition, she stated that

she had contacted a lifelong resident of Kossuth on January 21, 2008, after the 120-day

period for service of process. Also, the attorney’s secretary stated, without providing a date

for this action, that she had checked the land rolls for Alcorn County and had found no real

property owned by the Millers, and she had checked debt-collection programs designed to

locate residences and employment of individuals without success in the fall of 2007. The

tenth affidavit, executed by Stutts’s attorney, stated that, in late September or early October

2007, he had attempted to serve process on the Millers twice and, on the second occasion,

he had learned that they had moved. The efforts related in these affidavits occurred in either

September or October 2007, or after the expiration of the 120-day period. Some of the

affidavits simply referenced the fall of 2007, but none of the affidavits related efforts to

locate or serve process on the Millers in the winter months leading to the expiration of the

120 days.

¶14.   Stutts contends that her efforts to locate the Millers were similar to those in

Fortenberry v. Memorial Hospital at Gulfport, Inc., 676 So. 2d 252, 255-56 (Miss. 1996),

wherein this Court determined that good cause was shown in trying to serve one of the

                                               9
defendants, Dr. Mitchell. However, in Fortenberry, the plaintiff could not locate Dr.

Mitchell, not simply because he had moved, but because Dr. Mitchell had relocated from the

Gulf Coast to Oxford. Id. at 256. Also, in trying to locate Dr. Mitchell, the plaintiff had

requested and received two grants of additional time from the trial court, had written a letter

advising the trial court that Dr. Mitchell could not be found, and ultimately had hired a

private investigator to locate Dr. Mitchell. Id. at 255-56. This Court stated: “Here, we are

not faced with simple inadvertence, mistake of counsel, or ignorance of the rules.

Fortenberry’s counsel was clearly aware of the rules.” Id. at 256. The same cannot be said

as easily in today’s case.

¶15.   Although Stutts argues that her efforts to locate the Millers were “not only diligent,

but exhaustive,” she failed to request even one extension of time from the trial court.

Although no specific rule requires a motion for additional time for service of process, “this

Court has held that, if it appears process cannot be served within the 120-day period, ‘a

diligent plaintiff should file [a motion for additional time to serve process] within the 120-

day time period. Such diligence would support an allegation that good cause exists for

failure to serve process timely.’” Montgomery v. SmithKline Beecham Corp., 910 So. 2d

541, 545 (Miss. 2005) (quoting Webster v. Webster, 834 So. 2d 26, 29 (Miss. 2002)). In

Montgomery, this Court likewise stated that “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. Either

way, however, the plaintiff must demonstrate diligence.” Id. at 546. It would be prudent for

                                              10
a diligent plaintiff who files his or her complaint only four days before the running of the

applicable statute of limitations at least to file a motion for additional time to serve process

if it appears that service of process will not be accomplished within the 120-day period

provided by Rule 4(h).

¶16.   For the reasons previously stated, this Court cannot say that the trial judge abused his

discretion in finding that Stutts had failed to show good cause for not timely serving the

Millers. As such, this assignment of error is without merit.5

¶17.   Furthermore, although a dismissal for failure to show good cause why service was not

effected within the 120-day period pursuant to Rule 4(h) is without prejudice, the trial court

correctly dismissed today’s case with prejudice. See Johnson, 982 So. 2d at 415; Miss. R.

Civ. P. 4(h). “While the filing of a complaint tolls the statute of limitations, if service is not

made upon the defendant within 120 days as required by M.R.C.P. 4(h), the limitations

period resumes running at the end of the 120 days.” Owens v. Mai, 891 So. 2d 220, 223

(Miss. 2005) (citations omitted). See also Heard, 937 So. 2d at 942 (citations omitted) (“If

the defendant is not served during the 120-day service period, the statute begins to run

again.”). Stutts filed her complaint on September 20, 2007, four days before the statute of


       5
         Also, pursuant to Mississippi Rule of Civil Procedure Rule 52(b), “[u]pon motion
of a party filed not later than ten days after entry of judgment or entry of findings and
conclusions . . . the court may amend its findings or make additional findings and may
amend the judgment accordingly.” Miss. R. Civ. P. 52(b). Accordingly, Stutts had an
opportunity to request additional findings of fact from the trial court and chose not to do so.
Thus, this Court may presume that the trial court made all findings of fact that were
necessary to support its ruling, especially where we have before us the same affidavits that
the trial court considered.

                                               11
limitations ran. It is undisputed that the applicable statue of limitations is three years. See

Miss. Code Ann. § 15-1-49 (Rev. 2003). Stutts did not serve the Millers until January 24,

2008, six days after the expiration of the 120-day period, on January 18, 2008. On this date,

the statute of limitations resumed running and expired on January 22, 2008, before the

Millers were served. Thus, the trial court did not err in dismissing Stutts’s complaint with

prejudice.

                                       CONCLUSION

¶18.   For the reasons stated, the Alcorn County Circuit Court’s order granting the Millers’

motion to dismiss and dismissing Stutts’s complaint with prejudice is affirmed.

¶19.   AFFIRMED.

       RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. PIERCE,
J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY
RANDOLPH, LAMAR AND CHANDLER, JJ. KITCHENS, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND GRAVES, P.J.
DICKINSON, J., NOT PARTICIPATING.

       PIERCE, JUSTICE, SPECIALLY CONCURRING:

¶20.   Although I fully concur with the majority opinion, I am compelled to write separately

to address the issue of deferential review. The dissent, in concluding that the trial court erred

in finding that “good cause” was not present, bases its analysis on this Court’s holding in

Jenkins v. Oswald, 3 So. 3d 746 (Miss. 2009). Curiously absent from the dissent’s analysis

is a discussion of the deference this Court owes a trial court in finding whether good cause

was present in a particular matter. As I stated in a special concurrence in Jenkins, “[i]t

cannot be overstated that our trial courts are entitled to ‘deferential review’ in matters that

                                               12
require a discretionary ruling.” Jenkins, 3 So. 3d at 751 (Pierce, J. specially concurring)

(citing Rains v. Gardner, 731 So. 2d 1192, 1197-98 (Miss. 1999)). Under this Court’s

limited scope of review, it cannot be said that the trial court abused its discretion in the

present matter.

       RANDOLPH, LAMAR AND CHANDLER, JJ., JOIN THIS OPINION.

       KITCHENS, JUSTICE, DISSENTING:

¶21.   I respectfully disagree with the majority opinion, and I would find that the trial court

abused its discretion in finding that “good cause” was not established.

¶22.   As noted by the majority, Mississippi Rule of Civil Procedure 4(h) reads:

       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). Thus, Mississippi Rule of Civil Procedure 4(h) contains two elements that

must be present before an action may be dismissed for want of service within 120 days of the

complaint’s being filed. M.R.C.P. 4(h). First, there must be a failure to serve process within

120 days of filing, and, second, the party failing to serve process must be unable to show the

court “good cause” why service was not effected within the allotted time. Id.

¶23.   Although no bright-line definition of “good cause” is articulated within Mississippi

Rule of Civil Procedure 4(h), this Court has held:

       [G]ood cause is likely (but not always) to be found when the plaintiff’s failure
       to complete service in timely fashion is a result of the conduct of a third

                                             13
        person, typically the process server, the defendant has evaded service of the
        process or engaged in misleading conduct, the plaintiff has acted diligently in
        trying to effect service or there are understandable mitigating circumstances,
        or the plaintiff is proceeding pro se or in forma pauperis.

Jenkins v. Oswald, 3 So. 3d 746, 749-50 (Miss. 2009) (quoting Holmes v. Coast Transit

Auth., 815 So. 2d 1183, 1186 (Miss. 2002) (quoting 4B Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure § 1137 (3d ed. 2000))) (emphasis in original).

¶24.   In Jenkins, the plaintiff filed her complaint in July 2002, yet service of process was

not effected until January 2007. Id. at 747. Having been served with process four years after

the 120-day period provided by Mississippi Rule of Civil Procedure 4(h) had lapsed, the

defendant moved to dismiss the complaint. Id. In response to the motion to dismiss the

complaint, evidence was adduced that the plaintiff had attempted to serve process on the

defendant at two physical addresses thought to be the dwellings of the defendant. Id. at 747-

48. The plaintiff also had attempted to locate the defendant with the aid of the United States

Postal Service and Google, and the plaintiff had asked several of the defendant’s friends

where the defendant could be located. Id. However, it was not until more than four years

after the complaint had been filed, when plaintiff’s counsel saw the defendant on a television

advertisement and contacted the Office of the Secretary of State for a business address, that

service was effected. Id. at 748.

¶25.   After hearing testimony of the plaintiff’s efforts, the trial judge observed that the

plaintiff had not filed a motion for an enlargement of the 120-day period; however, the trial

judge denied the defendant’s motion to quash process, noting that, because there was credible


                                             14
testimony evincing “some diligence, or at least reasonably diligent efforts[,]” “good cause”

for failing to serve process within the 120-day period of Mississippi Rule of Civil Procedure

4(h) existed, and dismissal was not warranted. Id.

¶26.   On interlocutory appeal, this Court affirmed the Jenkins trial court, acknowledging

that the only imperative with respect to enlarging the 120-day period per Mississippi Rule of

Civil Procedure 4(h) is that good cause be established, not whether the plaintiff filed a motion

for an extension of time. Id. at 749-51.

¶27.    In the case at bar, the majority opinion fails to address whether good cause was

demonstrated by the plaintiff, or whether counsel for Stutts “acted diligently.” Jenkins, 3 So.

3d at 749-50; M.R.C.P. 4(h). Instead, the majority relies on Montgomery v. SmithKline

Beecham Corp., 910 So. 2d 541 (Miss. 2005), in which this Court opined, “[A] diligent

plaintiff should file [a motion for additional time to serve process] within the 120-day time

period.” Id. at 545; Maj. Op. at ¶15. However, Montgomery does not hold that the sole

method for a plaintiff to show diligence is filing a motion for an extension of time in which

to serve the defendant, or that such is required. Id. Instead, Montgomery stands for the

proposition that, regardless of whether a plaintiff files a motion for an enlargement of time,

he or she must demonstrate to the court an exercise of diligence in trying to serve the

defendant(s). Id. at 543. “Stated another way, 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. Either

way, however, the plaintiff must demonstrate diligence.” Id. at 546 (Emphasis added.)

                                              15
¶28.   Here, to establish diligence or “good cause,” counsel for Stutts submitted ten affidavits,

which were not contradicted by the defendants. Through these affidavits, it was shown that

Stutts had sent a process server multiple times to the defendants’ address that was included

in the accident report, but the defendants no longer lived there and no persons present could,

or would, reveal the defendants’ address. Failing in that effort to serve process, Stutts had

checked the Alcorn County land roll and local telephone records, but to no avail. Stutts also

had checked the Alcorn County Tax Collector’s records for automobiles registered to either

defendant; however, the address in these records was the same incorrect address appearing

in the accident report. Stutts had consulted a local constable, who had served for sixteen years

in that position, along with a district supervisor, the Alcorn County Justice Court, the Corinth

Municipal Court, a Deputy Alcorn County chancery clerk, a deputy sheriff who had served

in office for twenty years, and another Alcorn County constable, all of whom were unaware

of the defendants’ whereabouts. Stutts also had contacted a school teacher at Kossuth Middle

School, a school in the Alcorn County School District, after learning that Defendant Jaci

Miller may have attended that school; however, the teacher had no knowledge of that

defendant’s location. Stutts also had contacted a business owner and lifelong resident of the

area, as well as young persons close to Jaci Miller’s age, in hopes that they would know that

defendant’s location. In addition, Stutts had checked multiple debt-collection programs in

an effort to locate and serve process on the defendants. Yet, each of these efforts, which were

established by undisputed affidavit, proved unfruitful.       It was not until soon after the

expiration of the 120-day period that someone at the Alcorn County Courthouse, who was

                                              16
aware of the plaintiff’s quest, provided a lead that quickly resulted in the defendants’ being

served.

¶29.   While it is true that Stutts, like the plaintiff in Jenkins, failed to file a motion to extend

the 120-day period provided by Mississippi Rule of Civil Procedure 4(h), this circumstance

is not dispositive. It is necessary only that the plaintiff show “good cause” for failing to meet

the 120-day deadline, that is, that “the plaintiff . . . acted diligently in trying to effect service

or there are understandable mitigating circumstances.” Id. at 749-50 (Miss. 2009) (quoting

Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1186 (Miss. 2002) (quoting 4B Charles

Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137 (3d ed. 2000))).

Stutts has strongly made such a showing; she was far from dilatory or slothful, and, to the

contrary, was uncommonly industrious in trying to find and serve these defendants.

¶30.   Given that the linchpin in the majority’s analysis is that the plaintiff did not file a

motion for an extension of time, rather than whether the diligence, or lack thereof, of the

plaintiff amounted to “good cause” within the meaning of Mississippi Rule of Civil Procedure

4(h), the majority has elevated the recommended, but optional, motion for an extension of

time to the status of an indispensable element of “good cause.” Because this new, judicially

created element can be found in neither Mississippi Rule of Civil Procedure 4(h) or this

Court’s precedent, I respectfully dissent, and would hold that the trial court abused its

discretion by finding that “good cause” for the plaintiff’s failure to serve process within 120

days of the suit’s being filed was not established.

       WALLER, C.J., AND GRAVES, P.J., JOIN THIS OPINION.

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