                    IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2004-CA-00091-SCT

SHANNON MONTGOMERY AND JOHN DAVID
MONTGOMERY AS THE LAWFUL HEIRS OF DAVID
E. MONTGOMERY, DECEASED

v.

SMITHKLINE BEECHAM CORPORATION f/k/a
GLAXOWELLCOME, INC., d/b/a
GLAXOSMITHKLINE; EDWARD GORE, M.D.;
NORTH MISSISSIPPI MEDICAL CENTER; NORTH
MISSISSIPPI FAMILY MEDICAL CLINIC,
INC.,d/b/a CHICKASAW FAMILY MEDICAL
CLINIC; AND WAL-MART STORES, INC.

DATE OF JUDGMENT:                      01/05/2004
TRIAL JUDGE:                           HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:             LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:               JONATHAN THOMAS CRUMP
ATTORNEYS FOR APPELLEES:               JOSIAH DENNIS COLEMAN
                                       ROBERT K. UPCHURCH
                                       DAVID W. UPCHURCH
                                       JOHN G. WHEELER
                                       DONNA M. BARNES
                                       R. BRITTAIN VIRDEN
                                       CHARLES S. HEWINS
NATURE OF THE CASE:                    CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                           AFFIRMED - 02/24/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      DICKINSON, JUSTICE, FOR THE COURT:

¶1.   According to plaintiffs Shannon and John David Montgomery, David E. Montgomery

died on November 17, 1999, as a result of taking Allopurinol, a drug manufactured by
SmithKline Beecham Corp.1 The prescription was written by Dr. Edward Gore, plaintiffs

further allege that while acting as the agent of North Mississippi Medical Center and North

Mississippi Family Medical Clinics, Inc. d/b/a Chickasaw Family Medical Clinic)                  and was

filled by the pharmacy at Wal Mart Store #10-0411 in Houston, Mississippi.

¶2.     Suit was filed November 16, 2001, but plaintiffs did not immediately attempt to have

process served on the defendants.        Instead, on February 20, 2002, plaintiffs filed a motion,

representing to the court that additional time was needed for service of process.             The basis of

the motion was that the law firm, Greer, Pipkin and Russell, had been recently associated, and

“[a]fter several attempts, Plaintiffs’ newly associated counsel [had] been unable to properly

confer with plaintiffs Shannon Montgomery and John David Montgomery.”                   Also, plaintiffs’

counsel represented that “additional time [would] allow plaintiffs to file an amended complaint

that [would] simplify the issues.” An order granting “an additional 120 days from the date of

entry of [the] order” was signed on February 12, 2002 (eight days before the motion was filed);

but for reasons we are not told, the order was not entered of record until April 23, 2002.2

¶3.     On July 22, 2002, neither counsel for plaintiffs had served process on the defendants.

The plaintiffs’ attorneys signed an agreed ordered allowing Greer, Pipkin and Russell to

withdraw from the action, and plaintiffs filed another motion for additional time (60 days) for

service of process, stating as their “good cause” the fact that Greer, Pipkin and Russell had not

caused process to be served, and “Shelton & Associates have had no time to effect service of



        1
         Formerly known as GlaxoWellcome, Inc., d/b/a GlaxoSmithKline.
        2
          Assuming arguendo plaintiffs’ reason for the extension constituted “good cause” (discussed
infra), the court’s order extended the time for service of process until August 21, 2002.

                                                    2
process on the defendants.”        The motion also requested that the court “relate back” the

additional time to the February 12, 2002, order.          An order was entered on July 22, 2002,

granting the requested extension and ordering that the order “shall relate back to the court’s

order of February 12, 2002.”         Assuming arguendo the plaintiffs’ reasons for the extension

constituted “good cause” (discussed infra), the court’s July 22, 2002 order extended the time

for service of process for sixty days from July 31, 2002 (the date of entry of the order).

However, as of September 29, 2002, (sixty days later), process had not been served, and no

further extension had been requested, as of that date.

¶4.     On December 3, 2002, 65 days after the expiration of the extension granted by the July

31, 2002 order, counsel for plaintiffs filed their third motion for additional time to serve

process, stating that the attorney of record, Paul Goodman, was shot and killed, and his “sudden

and unexpected death left the status of this file in question.” The motion further averred that

“it could not be determined if Mr. Goodman had time before his death to attempt service upon

Defendants. . . .”     Plaintiffs’ new counsel, Jon T. Crump,3 urged that these circumstances

warranted a finding of excusable neglect. He requested an additional 30 days to serve process

and further requested that the court have the extension “relate back” to the July 22, 2002 order.

An ordered was signed and entered on December 3, 2002, “granting an additional 30 days from

the entry of [the] order to effectuate service of process on the defendants. . . .”         The order

further purported to “relate back” to the court’s prior order of July 22, 2002.




        3
          Jon T. Crump later signed an amended complaint (discussed infra) which listed his firm name
as “Jimmy D. Shelton & Associates, P.A. He also listed the same address and phone number as
plaintiffs’ counsel who signed the original complaint, and all interim motions.

                                                    3
¶5.     Plaintiffs’ counsel filed, on December 9, 2002, an amended complaint which: (a) named

the same defendants as the original complaint; (2) alleged the same counts and claims as the

original complaint; and (3) had 64 numbered paragraphs, whereas the original complaint had

63. On the same day the amended complaint was filed, process was served on Dr. Gore and

Chickasaw Family Medical Clinic As of December 30, 2002, all defendants had been served

with process.

¶6.     On January 8, 2003, Dr. Gore, North Mississippi Medical Center, Inc., and North

Mississippi Medical Clinics, Inc. d/b/a Chickasaw Family Medical Clinic filed a Motion to

Dismiss based upon insufficiency of process and insufficiency of service of process with 120

days after the filing of the Complaint, expiration of the statute of limitations, and failure to

state a claim upon which relief can be granted.

¶7.     On      January   14,   2003,    SmithKline       Beecham   f/k/a   GlaxoWellcome,   Inc., d/b/a

GlaxoSmithKline filed its motion to dismiss on similar grounds, as did Walmart Stores, Inc.

on January 22, 2003.

¶8.     On July 2, 2003, a hearing was conducted on the motions to dismiss, and a Final

Judgment granting the Defendants’ motions to dismiss and dismissing the case with prejudice

as to all defendants was signed by the trial judge on January 5, 2004, and entered of record on

January 7, 2004. The plaintiffs now appeal from that judgment.

                                        STANDARD OF REVIEW

¶9.     This Court has held:

        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’ on appeal. Rains v. Gardner, 731 So. 2d 1192, 1197-98


                                                      4
        (Miss. 1999).      When reviewing fact-based findings, we will only examine
        ‘whether the trial court abused its discretion and whether there was substantial
        evidence supporting the determination.’ Id. at 1197. However, a decision to
        grant or deny an extension of time based upon a question of law will be reviewed
        de novo. Id. at 1198.

Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1185 (Miss. 2002) (citation omitted).

                                               ANALYSIS

¶10.    Plaintiffs raise two issues: (1) Whether they demonstrated good cause for

failing to serve process within 120 days of filing the complaint, and (2) whether the trial court

is bound by its own order granting an extension of time to serve process.           Our resolution of

the first issue renders resolution of the second unnecessary.

¶11.    Rule 4(h) of the Mississippi Rules of Civil Procedure 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.

¶12.    The strict language of Rule 4(h) suggests that “good cause” can only be shown after the

expiration of the 120-day period – and then, only to demonstrate “why such service was not

made within that period, . . . .” (Emphasis added). The Mississippi Rules of Civil Procedure

do not provide for prospective good cause, that is, good cause which extends into the future,

and there is no provision for extending the time for service of process.

¶13.    Indeed, this Court has stated that, although there is no requirement of a motion for

additional time, “the better method to be utilized in future cases would be for plaintiff’s

counsel to seek authority for extensions from the court, rather than unilaterally making this



                                                     5
decision himself.”     Fortenberry v. Mem’l. Hosp., 676 So. 2d 252, 256 (Miss. 1996).

Ordinarily under Rule 4(h), where the 120 days has expired, a court must notify the plaintiff

that, because of the failure to serve process, the case is subject to dismissal. The plaintiff must

then appear and attempt to show good cause why process was not served within the 120-day

period for service.4     “Good cause” can never be demonstrated where plaintiff has not been

diligent in attempting to serve process. Bang v. Pittman, 749 So. 2d 47, 52 (Miss. 1999). In

demonstrating good cause and diligence, a plaintiff must show that he or she has been unable

to serve process because the defendant evaded process or engaged in misleading conduct, or

for some other acceptable reason, as discussed in Holmes, 815 So. 2d at 1186.

¶14.   Notwithstanding the absence of any specific rule allowing or requiring 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.” Webster v. Webster, 835 So. 2d

26, 29 (Miss. 2002). In Webster this Court went on to say:

       Rule 4(h) does not require that a motion for additional time for service of
       process be filed within 120 days of the filing of the complaint. Arkansas and
       New York’s rules of civil procedure mandate that a motion for additional time
       be filed within the 120-day period. See, e.g., Weymouth v. Chism, 75 Ark.App.
       164, 55 S.W.3d 307 (2001); Norstar Bank of Upstate New York v. Wittbrodt,
       154 Misc. 2d 260, 594 N.Y.S.2d 115 (N.Y.Sup.Ct. 1993).                 Arkansas’s
       counterpart to Rule 4(h) specifically provides, ‘If a motion to extend is made
       within 120 days of the filing of the suit, the time of service may be extended by
       the court upon a showing of good cause.’ Ark.R.Civ.P. 4(i). New York’s rule is


       4
        Although the rule specifically addresses only the 120-day period, the diligence and good cause
requirements extend until the time process is served.

                                                  6
        similar. Therefore, if the drafters of our rules of civil procedure wished to
        require that motions for additional time in which to serve process be filed within
        the 120 days, they could have done so.

Webster, 834 So. 2d at 28-29.

¶15.    This Court’s holding in Webster did not expand the rules and create a new right to seek

an additional period of time for service of process; but rather provided a practical and logical

suggestion for one factor a court could consider when trying to determine whether a plaintiff

has been diligent. 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.

¶16.    Plaintiffs cite the permissive language in Webster for the proposition that a motion for

additional time to effect service of process may be filed after the 120 day period has run. They

then state:

        The Court has also held, in 2003, that the motion for additional time must be
        filed before the expiration of the 120 day time period. Mitchell v. Brown, 835
        So. 2d 110, 112; 2003WL 139598 (Miss. App. 2003). However, the Mitchell
        decision was based upon a case decided in 2001, Moore v. Boyd, 799 So. 2d 133
        [(Miss. App. 2001)] Id. at 112.

¶17.    Plaintiffs’ first motion for additional time was filed within the 120-day period, the

second motion was filed within the 120-day extended period, and the third motion was filed

after expiration of the second extension. They point out, however, that each order granting the

extension of time “related back” to the previous extension thereby bridging the lapses.

Furthermore, they argue that Webster is controlling;   and therefore, the motions could be filed

after the running of the 120-day period.

                                                7
¶18.    Plaintiffs place far too much emphasis on when a motion should be filed, while ignoring

any demonstration of diligence. They do, however, discuss “good cause,” telling us:

        The first motion offered as good cause the association of a second law firm.
        This firm wished to ensure itself that the proper parties were being sued before
        serving process as to avoid suing an innocent party. The desire to avoid
        unnecessary litigation is certainly good cause. The second motion was based
        upon the fact that the law firm of Greer, Pipkin and Russell had withdrawn but
        not returned the file. The firm who took the file back had no reason to know that
        service had not been made prior to Greer, Pipkin and Russell’s withdrawal. This
        exchange at least constituted excusable neglect. Such has been held enough to
        constitute good cause. The final motion for additional time was based upon the
        death of the attorney handling the case. The delays accompanying such an event
        are unavoidable. It takes time for another attorney to be assigned the case. And
        once the case [i]s reassigned the other attorney will need time to familiarize
        himself with the case. This too is good cause to extend a deadline.

¶19.    These same arguments were presented to the trial judge with respect to defendants’

motions for dismissal, to which the court responded in a well-written judgment and considered

opinion. We include the trial judge’s opinion, in its entirety, as Appendix “A” hereto.


¶20.    Although we find the trial court’s reasoning to be compelling, we must point out other

problems with all three of plaintiffs’ motions.

        The first motion for additional time.

¶21.    First, we notice that the justification offered to the trial court by plaintiffs’ counsel for

the first extension of time, does not exactly match the justification offered to this Court.

When speaking to this Court, plaintiffs’ counsel

        offered as good cause the association of a second law firm. This firm wished
        to ensure itself that the proper parties were being sued before serving
        process [so] as to avoid suing an innocent party. The desire to avoid unnecessary
        litigation is certainly good cause.




                                                     8
(Emphasis added). Upon review of the motion, we find the following representation to the trial

court as the claimed basis for the request for additional time:

        Counsel for plaintiffs were recently associated on this matter by the law firm
        of Jimmy D. Shelton & Associates. The 120 day period for service of process
        provided in Rule 4 of the Mississippi Rules of Civil Procedure will lapse prior
        to present counsel having an opportunity to properly review the immediate
        lawsuit. After several attempts, Plaintiffs’ newly associated counsel has been
        unable to properly confer with plaintiffs Shannon Montgomery and John David
        Montgomery. Counsel is of good faith belief that additional time will allow
        plaintiffs to file an Amended Complaint that will simplify the issues to be
        presented to the Court, thereby promoting judicial economy.

¶22.    As we read it, the motion says nothing about the new firm’s “need to ensure itself that

the proper parties were being sued before serving process as to avoid suing an innocent party.”

The motion indicates counsel made several unsuccessful attempts to confer with the clients.

We are also told that counsel anticipated an amended complaint to “simplify the issues.” Thus,

regarding the need for the first extension of time, the representations made to this Court do

not match the representations made to the trial court.

¶23.    Furthermore, we are not told when Greer, Pipkin and Russell was associated on the case

by Jimmy D. Shelton & Associates. Assuming it was close to the end of the 120-day period

for service of process,5 we are unable to locate any evidence whatsoever that plaintiffs’

counsel diligently attempted to serve process during the months prior to associating this firm.

To the contrary, it appears counsel did not make any attempt – diligent or otherwise – to serve

process.    Plaintiffs had the burden of demonstrating “good cause why such service was not




        5
        On February 20, 2002, Greer, Pipkin and Russell represented to the trial court that they had
been “recently associated.”

                                                     9
made within that [120-day] period.” Instead, plaintiffs attempted to demonstrate why the newly

associated firm required an additional 120-days for service of process.

¶24.    The burden is upon the plaintiffs to demonstrate good cause for failure to timely serve

process. Holmes, 815 So. 2d at 1184.            More is required than “simple inadvertence, mistake

of counsel, or ignorance of rules. . . .” Watters v. Stripling, 675 So. 2d 1242, 1243 (Miss

1996). The standard is strict, and requires diligence. Bang v. Pittman, 749 So. 2d 47, 52

(Miss. 1999); Moore v. Boyd, 799 So. 2d 133, 136 (Miss. Ct. App. 2001) ( citing Black v.

Carey Canada, Inc., 791 F. Supp. 1120, 1126 (S.D. Miss. 1990));. In all of these respects,

plaintiffs are woefully deficient.   In short, with respect to the first motion for time,   plaintiffs

completely failed to demonstrate “good cause” as required by Rule 4(h).

        The second motion for additional time.

¶25.    Plaintiffs tell us that “[t]he second motion was based upon the fact that the law firm of

Greer, Pipkin and Russell had withdrawn but not returned the file. The firm who took the file

back had no reason to know that service had not been made prior to Greer, Pipkin and Russell’s

withdrawal.” Again, we find the representations of counsel to be less than forthright.

¶26.    Plaintiffs’ counsel leaves the implication, once Greer, Pipkin and Russell was

associated on the case, Jimmy D. Shelton & Associates no longer had responsibilities to

represent the plaintiffs, including the responsibility to make sure process was timely served.

Counsel implies that his firm “took the file back” and “had no reason to know that service had

not been made prior to Greer, Pipkin and Russell’s withdrawal.” The fact is, Jimmy D. Shelton

& Associates never lost possession of the file – at least, not in the legal sense.          And for

counsel to represent to this Court that his firm “had no reason to know that service had not

                                                   10
been made prior to Greer, Pipkin and Russell’s withdrawal” is unsupportable.                 Jimmy D.

Shelton & Associates has been counsel of record in this matter since its inception, and as

counsel of record, maintained all the duties and obligations to the client as provided in Rules

1.1, 1.2, 1.3 and 1.4 of the Mississippi Rules of Professional Conduct.

        The third motion for additional time.

¶27.    Finally, counsel tell us that a third motion for additional time to serve process was

necessary because of the untimely death of attorney Paul Goodman, which occurred “a matter

of weeks subsequent to” the trial court’s third order granting additional time to serve process.

As with the previous motions, we are given no evidence or indication that plaintiffs used

reasonable diligence to serve process prior to Goodman’s death. We further note that attorney

Jimmy D. Shelton signed the complaint filed on November 16, 2001, and we are provided no

explanation why Shelton did not cause process to be served.

¶28.    Accordingly, we agree with the trial court and find plaintiffs have failed to demonstrate

good cause why process was not timely served, and as a result the dismissal of this civil action

must be affirmed.

                                             CONCLUSION

¶29.    Plaintiffs have failed to demonstrate good cause for their failure to timely serve

process. Consequently, the statute of limitations has run as to all defendants. The Final

Judgment entered by the trial court is affirmed.

¶30.    AFFIRMED.

    SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.



                                                    11
EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION.                                   DIAZ, J., NOT
PARTICIPATING.


        EASLEY, JUSTICE, DISSENTING:

¶31.    I respectfully dissent to the majority’s opinion today finding that the Plaintiffs failed

to demonstrate good cause why process had not been timely served on the Defendants and

affirming the trial court’s ruling and dismissal of the case with prejudice as to all Defendants.

Counsel for the Plaintiffs demonstrated valid and good cause for an extension of time to serve

process because of the sudden murder of the attorney of record in the case, Paul Goodman.

In addition, the circuit court judge granted a third extension to the Plaintiffs and service of

process was complete as to all Defendants prior to the expiration of the court ordered

extension period.      Therefore, I disagree with this Court’s affirmance of the trial court’s order

subsequently granting the Defendants’ motion to dismiss with prejudice.

¶32.    The record shows that the Plaintiffs filed suit on November 16, 2001.                Prior to the

expiration of the 120 day service of process period, a motion for extension of time was

granted by the trial court. New counsel was associated on the case, and counsel had problems

conferring with the Plaintiffs.

¶33.    Thereafter, a second motion for extension of time was granted which related back the

time to the first order. The new counsel for Plaintiffs had withdrawn from representation.

¶34.    Finally, a third motion for extension of time was granted by the trial court. This order,

like the other orders all related back to the first extension order. Every defendant was served

with process within the extension period. The main reason for the extension was the death of

the attorney handling the case.


                                                   12
¶35.    After service of process was complete, the Defendants then filed a motion to dismiss

the case.   More than one year after the trial court granted the third extension and service of

process was complete, the trial court granted the Defendants’ motion to dismiss.

¶36.    The death of an attorney handling a case is a valid reason for an extension. The

subsequent need to review the dead attorney’s caseload, establish a new attorney to handle the

case and allow time to review the file is a valid reason and good cause for any delay. At a

minimum, these reasons clearly demonstrate excusable neglect.

¶37.    Second, the majority’s affirmance of the trial court’s grant of the Defendants’ motion

to dismiss ignores the fact that the trial court granted a third extension for time. The trial court

entered a valid order and the plaintiffs complied with that order by serving process on all

defendants. Only after service of process was complete did the Defendants file a motion to

dismiss with prejudice.     A fundamental problem exists when numerous trial court orders are

entered permitting extensions of time to serve process and then when service of process is

complete within the extension, the trial court effectively overrules its prior orders allowing

the extensions for service of process.

¶38.    Incidentally, the majority makes much of the fact that the justification for the first

extension was different when argued to the trial court as opposed to this Court on appeal. In

specific, the majority cites to the Plaintiffs’ reasoning, in part, argued to the trial court that

counsel needed “an opportunity to properly view the immediate lawsuit.” The reasoning to this

Court for the first extension was that the firm “wished to ensure itself that the proper parties

were being sued before service of process [so] as to avoid suing an innocent party.”




                                                  13
Maj. Op. ¶ 22. The majority states that the representations to the trial court and this Court do

not match. However, part of a “proper review” process of a file would indicate if there was a

potential problem with whether the correct parties were being sued.                 Therefore, I do not see

a conflict with the justification as stated to the trial court and this Court on appeal.

¶39.    For these reasons, I respectfully dissent to the majority’s ruling today. I would reverse

the circuit court’s judgment and remand this case for further proceedings.




                                                      14
Appendix A
