        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CA-00408-COA

PERRIECE COLLINS, INDIVIDUALLY AND AS                                    APPELLANTS
THE PARENT, LEGAL GUARDIAN AND NEXT
FRIEND OF SHONIQWA COLLINS,
INDIVIDUALLY AND AS THE PARENT, LEGAL
GUARDIAN AND ON BEHALF OF ANY AND
ALL WRONGFUL DEATH BENEFICIARIES OF
SHATAJA NIKEARA COLLINS, DECEASED

v.

TOIKUS WESTBROOK, M.D.                                                       APPELLEE


DATE OF JUDGMENT:                         02/06/2013
TRIAL JUDGE:                              HON. VERNON R. COTTEN
COURT FROM WHICH APPEALED:                LEAKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 SHANE F. LANGSTON
                                          REBECCA M. LANGSTON
                                          JESSICA E. MURRAY
ATTORNEYS FOR APPELLEE:                   L. CARL HAGWOOD
                                          J. MICHAEL COLEMAN
NATURE OF THE CASE:                       CIVIL - WRONGFUL DEATH
TRIAL COURT DISPOSITION:                  DEFENDANT’S MOTION TO DISMISS
                                          GRANTED
DISPOSITION:                              AFFIRMED - 12/02/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      BARNES, J., FOR THE COURT:

¶1.   Perriece Collins, the parent and legal guardian and of Shoniqwa Collins, and on behalf

of the wrongful-death beneficiaries of Shataja Nikeara Collins, filed suit in Leake County
Circuit Court against Dr. Toikus Westbrook (Dr. Toikus), among others,1 for negligence in

the delivery of Shoniqwa’s stillborn baby, Shataja. Dr. Toikus filed a motion to dismiss,

claiming insufficient service of process, because the person served with the complaint was

his father, Dr. Jesse Westbrook (Dr. Jesse), a dentist in Germantown, Tennessee, who was

not authorized to accept service for his son. The trial court agreed, finding the 120-day

deadline to serve process had expired, and Plaintiffs had shown no good cause or excusable

neglect as to why process had not been timely served. While this Court may not have made

the same decision as the trial court, we cannot say the trial court abused its discretion.

Accordingly, we affirm.

             STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    On December 16, 2011, Plaintiffs filed their complaint of a wrongful-death claim due

to medical malpractice against Defendants. The complaint alleged that on June 30, 2010,

nineteen-year-old Shoniqwa was admitted to the Leake County Memorial Hospital

emergency room under the care of its staff and Dr. Toikus, complaining of bloody discharge.

Shoniqwa was approximately thirty-six weeks pregnant. Plaintiffs claimed that in spite of

signs of fetal distress, neither the physician nor his nurse made any attempt to intervene or

deliver the infant, and she was ultimately delivered stillborn.

¶3.    Counsel for Plaintiffs, Langston & Langston PLLC (Langston), explained that it



       1
        Other named defendants included Leake County Memorial Hospital, the Leake
County Board of Supervisors, and Edith Vowell, R.N., but the claims against these
defendants are not at issue in this appeal.

                                              2
delegated the responsibility of serving process on Defendants to its former long-time legal

assistant. However, as the legal assistant was experiencing “very extreme personal problems

during this period of time,” lead counsel Shane Langston discovered only a few days before

the expiration of the 120-day deadline, as provided by Mississippi Rule of Civil Procedure

4(h), that there had been no process served on Defendants. The trial court docket indicates

that summonses for Dr. Toikus and the other defendants were not even issued until April 13,

2012, one day prior to the April 14, 2012 deadline.

¶4.    On April 11, 2012, Langston hired Quantum Process, a professional process-serving

company in Hattiesburg, Mississippi, to serve Defendants. Langston told Quantum Process’s

manager, Davy Keith, that process had to be served on Dr. Toikus on or before April 14,

2012, which was a Saturday. On April 12, 2012, at 2:55 p.m., attorney Jack Hunt, an

associate at Langston, emailed Keith the notice of summons. On Friday, April 13, 2012, at

2:06 p.m., Hunt asked if Keith had “any luck so far?” At 3:23 p.m., Keith emailed Hunt and

updated him on the difficulties of finding Dr. Toikus, stating “the chances of locating and

serving [Dr. Toikus] today are very slim.” Keith detailed that a LexisNexis search for

“Toikus Westbrook” resulted in several possible addresses for him in New Orleans,

Louisiana, and Germantown, Tennessee. However, eighteen minutes later, Keith sent an

email stating, “I can make this happen but it’s going to be more than I stated. $300. Please

confirm.” A confirmation email was then sent back from Hunt to Keith at 3:52 p.m., stating

“everything is in motion.”

¶5.    Soon after sending this email, Keith testified he called a residential telephone number

                                              3
at a location that matched Dr. Toikus’s last known address in Germantown, and left a

message for “Dr. Toikus Westbrook.” Someone called Keith back from the number, and

Keith explained he had a delivery for “Dr. Toikus Westbrook.” Initially, the person

responded, “he’s not available.” Keith then admittedly employed a technique used in his

profession called a “pretext,” and misrepresented to the caller that he had a delivery from

“Maxim Physicians,” Dr. Toikus’s employer. Keith claims the person on the phone then

said: “Oh, that’s me. You can bring that to me.” The person was on his way to Incredible

Pizza in Germantown, and asked if he could meet Keith there. Keith then arranged for Gary

Murphree, a process server in Memphis, Tennessee, to meet the alleged Dr. Toikus

Westbrook at Incredible Pizza in Germantown.

¶6.    On Friday, April 13, Murphree arrived at Incredible Pizza and asked that the

restaurant page “Toikus Westbrook.” 2 An employee then escorted Murphree to a back room

where a gentleman was sitting.      Murphree testified when asked if he was “Toikus

Westbrook,” the man said “yes,” and Murphree, who had the papers in a box, opened it and

handed him the summons and complaint.3 At this point, Plaintiffs claimed they believed all

of Defendants had been timely served by the April 14 120-day deadline, including Dr.

Toikus.


       2
        It is disputed whether the Incredible Pizza employee paged “Dr. Toikus Westbrook”
or “Dr. Westbrook,” but Plaintiffs claim this point is irrelevant because Murphree, in his
affidavit, believed in good faith he served “Dr. Toikus Westbrook.”
       3
        On this date Murphree also executed an affidavit of service, swearing that he served
the documents to “Toikus Westbrook” on April 13 at 5:23 p.m.

                                             4
¶7.    On May 7, 2012, Dr. Toikus filed a motion to dismiss, claiming Dr. Jesse Westbrook,

Dr. Toikus’s father, had been served in Germantown instead of him, and therefore the

complaint should be dismissed due to insufficient service of process. On May 21, 2012, an

affidavit in support of the motion to dismiss, executed by Dr. Jesse on May 7, was filed with

the trial court. Dr. Jesse’s affidavit stated that he was a dentist, that he was served with

process on April 13, and that he had no knowledge of this case. It also gave his home

address in Germantown.

¶8.    In June 2012, Plaintiffs filed a response in opposition to the motion, attaching

supporting affidavits from Keith and Murphree. Keith’s affidavit explained how he ran a

LexisNexis search to find several addresses and phone numbers for “Dr. Toikus Westbrook.”

Every telephone number for “Toikus Westbrook” was called, but only the caller at the

Germantown phone number responded. When Keith told the caller he had a delivery for “Dr.

Toikus Westbrook” from Maxim Physicians, the caller responded he was on his way to

Incredible Pizza, and asked to be met there. Murphree’s affidavit claimed he served who he

believed was Dr. Toikus, and the person identified himself as “Dr. Toikus Westbrook” at the

pizza place.

¶9.    Dr. Toikus filed a reply to Plaintiffs’ response to the motion to dismiss, and attached

a second affidavit by Dr. Jesse, adding more details of the events of April 14. In it, Dr. Jesse

acknowledged that he had “received a telephone call at his home from a man stating he had

some important documents regarding physician services for a ‘Dr. Westbrook.’” Dr. Jesse

claimed he identified himself as “Dr. Westbrook,” and told the caller he and his family were

                                               5
headed to dinner at Incredible Pizza. At the restaurant, a man approached him with a pizza

box and pulled out some documents, handing them to Dr. Jesse and stating, “you have now

been served.”

¶10.   The first hearing on the motion to dismiss was in June 2012. The hearing is not

transcribed for the record, but the uncontested affidavit of Jessica Murray, counsel for

Plaintiffs, stated that neither Dr. Jesse nor Dr. Toikus attended the hearing and no additional

evidence was offered. The trial judge decided to continue the hearing, informing counsel that

he would like to hear live testimony from the relevant witnesses.

¶11.   At the second hearing on October 31, 2012, Plaintiffs called Keith and Murphree to

testify, and attorney Shane Langston gave testimony about his firm’s efforts to serve Dr.

Toikus. The trial court granted Dr. Toikus’s motion to file an affidavit, which he submitted

to the court on November 26, 2012. In the affidavit, he merely stated that he was a resident

of New Orleans, giving his address there, along with his father’s address in Germantown, and

stated he was never served with process.

¶12.   On February 8, 2013, the trial court entered a judgment of dismissal in favor of Dr.

Toikus.4 The court found Dr. Toikus had not been served within the 120-day period, and


       4
        In January 2013, the trial judge submitted a letter opinion finding against Plaintiffs.
However, before a final judgment had been entered, the Mississippi Court of Appeals
reversed the same trial judge’s dismissal of a defendant in another case involving insufficient
service of process in Lewis v. Forest Family Practice Clinic P.A., 124 So. 3d 678 (Miss. Ct.
App. 2013). The trial court requested the parties submit memoranda discussing the Lewis
decision’s impact. Subsequently, the Mississippi Supreme Court reversed the Court of
Appeals’ decision in Lewis v. Forest Family Practice Clinic P.A., 124 So. 3d 654 (Miss.
2013).

                                              6
Plaintiffs had shown no “good cause” or “excusable neglect” to justify an enlargement of

time to serve him.5 Plaintiffs (now Appellants) timely appealed.

                                STANDARD OF REVIEW

¶13.   The appellate court reviews a trial court’s grant or denial of a motion to dismiss de

novo. Johnson v. Rao, 952 So. 2d 151, 154 (¶9) (Miss. 2007). However, the “trial court’s

finding of fact on the existence of good cause for the delay in service of process [is] ‘a

discretionary ruling and entitled to deferential review’ on appeal.” Triple “C” Transp. Inc.

v. Dickens, 870 So. 2d 1195, 1197 (¶15) (Miss. 2004) (citation omitted). “When reviewing

fact-based findings, [the appellate court] will only examine whether the trial court abused its

discretion and whether there was substantial evidence supporting the determination.” Id. at

1197-98 (¶15).

¶14.   The trial court’s determination of “whether there is good cause for failure to serve

process is ‘a discretionary ruling on the part of the trial court and is entitled to deferential

review of whether the trial court abused its discretion and whether there was substantial

evidence supporting the determination.’” Lewis Entm’t Inc. v. Brady, 142 So. 3d 396, 398

(¶6) (Miss. 2014) (quoting Rains v. Gardner, 731 So. 2d 1192, 1197 (¶18) (Miss. 1999)).

“To the degree that a trial judge’s decision to grant or deny a motion for an extension of time

is based upon precept of law, the standard for the [appellate court]’s review shall be

‘plenary’; otherwise, [the appellate court] shall simply apply the abuse-of-discretion


       5
       While the trial court in its final judgment did not make a specific finding for lack of
good cause, it is implicit in the ruling.

                                               7
standard.” Rains, 731 So. 2d at 1198 (¶19) (citation omitted).

                                       ANALYSIS

¶15.   Appellants argue that Dr. Toikus waived his defense of insufficient service of process

because, until he filed an untimely affidavit after the second hearing on the motion to

dismiss, the testimony had been uncontradicted that Dr. Toikus was timely served on April

13. Appellants argue that even if this Court considers Dr. Toikus’s untimely affidavit, his

sworn statement that he was never served with process is overcome by process servers

Keith’s and Murphree’s affidavits, which state they thought they did serve Dr. Toikus.

Appellants also claim that the trial court abused its discretion in denying their numerous

requests for additional time under the “good-cause” and/or “excusable-neglect” standards.

¶16.   Rule 4(h) provides:

       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.

“In order to establish that good cause exists for late service, a plaintiff must have made a

diligent effort to effect service.” Foss v. Williams, 993 So. 2d 378, 379 (¶6) (Miss. 2008)

(citing Montgomery v. SmithKline Beecham Corp., 910 So. 2d 541, 546 (¶15) (Miss. 2005)).

Instances where good cause exists include: “[W]hen the failure is a result of the conduct of

a third person; when the defendant has evaded service of process or engaged in misleading

conduct; when the plaintiff has acted diligently; when there are understandable mitigating

circumstances; or when the plaintiff is proceeding pro se or in forma pauperis.” Id. (citing


                                             8
Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1186 (¶12) (Miss. 2002)). If it appears that

process cannot be served within the 120-day period, a diligent plaintiff should file a motion

for additional time to serve process. “Such diligence would support an allegation that good

cause exists for failure to serve process timely.” Stutts v. Miller, 37 So. 3d 1, 6 (¶15) (Miss.

2010) (quoting Montgomery, 910 So. 2d at 545 (¶14)). “‘Good cause’ can never be

demonstrated where plaintiff has not been diligent in attempting to serve process”; it is a

strict standard.6 Montgomery, 910 So. 2d at 545, 548 (¶¶13, 24).

¶17.      Mississippi Rule of Civil Procedure (6)(b)(2) authorizes the trial court to enlarge the

120-day period when the request is made after this deadline upon a showing of “excusable

neglect.” The Mississippi Supreme Court has established 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.’” Stutts, 37 So. 3d at 4 (¶9) (citing Holmes, 815 So. 2d at 1186

(¶11)).


          6
         The Mississippi Supreme Court, in Holmes, cites Wright and Miller’s Federal
Practice and Procedure treatise regarding the concept of “good cause”:

          [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
          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.

Holmes, 815 So. 2d at 1186 (¶12) (quoting 4B Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 1137, at 342 (3d ed. 2000)).

                                                 9
¶18.   Appellants contend that the Westbrooks’ affidavits were untimely and insufficient.

They complain that in the motion to dismiss, Dr. Jesse’s affidavit was not attached but

promised as “forthcoming,” and when the affidavit was eventually filed two weeks later, it

offered no details or explanation of what Dr. Jesse said when being served, where Dr. Toikus

was, or what he did with the summons after being served. Appellants also argue that Dr.

Toikus never provided sworn evidence that he was not timely served with process. His

affidavit, executed two weeks after the second hearing on the motion to dismiss, merely

states he was never served with process. Appellants argue this is insufficient because Dr.

Toikus does not offer an explanation of the telephone call with Keith, the service of process

at the pizza place, or whether his father delivered the summons to him before April 14. They

therefore contend the trial court abused its discretion in accepting the “bare-boned” legal

conclusion that Dr. Toikus had never been served with process.

¶19.   From the record, the trial court could clearly find that Dr. Toikus was not timely

served within the 120-day period. Appellants did not attempt to serve process on Dr. Toikus

until two days prior to the expiration of the 120-day deadline, because Langston did not

realize its legal assistant had not already served Defendants due to personal problems.7 Then,

on April 13, the process server indicated to Langston that the chances of locating and serving

Dr. Toikus on that day were “very slim” because a LexisNexis search showed Dr. Toikus



       7
        “[W]aiting until the last day to serve process on a defendant does not constitute good
cause.” Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 40 (¶10) (Miss. 2007) (citing Powe
v. Byrd, 892 So. 2d 223, 227 (¶9) (Miss. 2004)).

                                             10
might have more than one physical address – one in Germantown and several prior New

Orleans addresses, with the latest one listed as current through April 2012. But in a

subsequent email, Keith was more positive, stating he could “make it happen” and

“everything is in motion.” Keith contacted Dr. Toikus’s employer, Maxim Physicians, who

confirmed to Keith that he lived in New Orleans. However, Keith decided to pursue the

Germantown address, and not the correct New Orleans address, telephone number, and

email. As a result, Murphree served the wrong Dr. Westbrook (Jesse) with the complaint

instead.

¶20.   While a return of service gives rise to a presumption that service occurred, this

presumption is rebuttable. McCain v. Dauzat, 791 So. 2d 839, 842 (¶8) (Miss. 2001) (citing

Pointer v. Huffman, 509 So. 2d 870, 872 (Miss. 1987)). The presumption is rebutted solely

by the testimony of the party disputing service. Lampton-Reid Co. v. Allen, 177 Miss.

698,714, 171 So. 780, 783-84 (1937). Dr. Toikus moved the trial court to allow him to file

an affidavit, and his request was granted. The affidavit stated he had never been served with

process in this case. Moreover, Dr. Jesse filed two affidavits stating that he, not Dr. Toikus,

was served with process at Incredible Pizza. We find the trial court did not abuse its

discretion in relying on these affidavits and in finding Dr. Toikus was not timely served.

¶21.   As to whether “good cause” or “excusable neglect” was shown, Appellants first

contend that they filed numerous applications for an extension of time before the trial court,

which were never acknowledged, and that this was error. Appellants requested additional

time in the following instances: (1) in June 2012, they requested additional time to serve Dr.

                                              11
Toikus “in the alternative” in their response to Defendants’ motion to dismiss; (2) in October

2012, during oral argument, they asked for additional time to serve Dr. Toikus, again “in the

alternative”; (3) in November 2012, they included a section in their post-hearing brief about

an extension of time and “good cause” shown; and (4) in December 2012, in their post-

hearing rebuttal brief, they requested an extension of time.

¶22.   In order for the trial court to allow an extension of time to serve process, the plaintiff

must show “good cause” as to why service has not been completed within the 120-day period

mandated by Rule 4(h) or “excusable neglect” under Rule 6(b)(2). As the trial court

correctly noted in its final judgment, Appellants failed to file a motion for an extension of

time before the 120-day deadline. Although Appellants take issue with the trial court’s

opinion that the email by Keith, stating that the chance of serving Dr. Toikus was “very

slim,” should have “raised the bar” and motivated counsel to request additional time before

the expiration of the 120-day deadline, we do not find that the trial court overemphasized the

earlier portion of the email in making its ruling.

¶23.   Appellants cite Jenkins v. Oswald, 3 So. 3d 746 (Miss. 2009) to show that the lack of

an application for an extension of time is not a “fatal flaw.” In Jenkins, the plaintiff was

served with process four years after the 120-day deadline. Id. at 747 (¶2). Evidence showed

the plaintiff had attempted to serve process on the defendant at two physical addresses

thought to be the defendant’s dwellings, as well as attempted numerous times to locate his

address for many years, without success. Id. at 747-48 (¶¶4-5). The plaintiff had not filed

a motion for enlargement of time, but the trial court found that testimony showed “reasonably

                                              12
diligent efforts” to serve process within the 120-day period, and “good cause” existed. Id.

at 749 (¶11). The trial court denied the defendant’s motion to quash process and dismiss, and

the supreme court affirmed. Id. at 750-51 (¶¶15, 17).

¶24.   Appellants, citing Foss, argue that good cause and excusable neglect existed in the

instant case. In Foss, the plaintiff’s counsel learned of local counsel’s failure to serve the

defendants two days before the 120-day deadline. Foss, 993 So. 2d at 378-79 (¶¶2, 5). All

defendants were served before the 120-day deadline except one, Dr. Foss, who was served

on the 121st day. Id. at 379 (¶2). The supreme court affirmed the trial court’s denial of Dr.

Foss’s motion to dismiss, agreeing with the trial court’s finding that there was sufficient

evidence to constitute good cause. Id. at 380 (¶¶9-10).

¶25.   We find that Jenkins is distinguishable from the present case because there was no

difficulty in finding Dr. Toikus’s address. Appellants had Dr. Toikus’s correct New Orleans

address, confirmed by his employer, as well as a Germantown address. The process servers

chose to pursue the Germantown address, instead of New Orleans, in order to attempt service

on Dr. Toikus. Keith states in his affidavit that he called every number listed for Dr. Toikus,

leaving messages after receiving no answer, and that he received a return phone call back

from the Germantown phone number. We note, however, that the LexisNexis search results

show that the name “Westbrook Jesse L DDS/OFC” was listed beside the Tennessee phone

number. Keith, therefore, should have been aware of the possibility that he was dealing with

a different Dr. Westbrook. Also, the Jenkins court did not hold that the failure to file for an

extension of time was acceptable. Rather, the trial court deemed the lack of an extension

                                              13
“problematic,” but the supreme court agreed with the trial court that testimony showed the

plaintiff made “reasonably diligent efforts” to serve the defendant, which satisfied the good-

cause standard. The efforts to serve process in Jenkins were much more diligent than in the

instant case.

¶26.   Foss is also distinguishable, as noted by the trial court in this case. In Foss, the

defendant was served one day late; here, as we have already noted, Dr. Toikus was never

served. Further, the plaintiff’s attorney in Foss did not know service on the defendant was

one day late until the defendant filed his motion to dismiss, prompting the plaintiff to file a

motion for an extension of time.       The trial court made a fact-based finding that the

miscommunication between the plaintiff’s attorneys over who was responsible for serving

the defendant constituted good faith. Here, there was no miscommunication over who was

to serve Dr. Toikus. The only miscommunication was which Dr. Westbrook was served. As

Dr. Jesse was listed as the verified contact for the Germantown phone number, the process

server should have been extra conscientious to serve the proper “Dr. Westbrook.” The trial

court correctly noted that the process server deceived Dr. Jesse into accepting service, and

Plaintiffs never filed a motion requesting an extension of time.

¶27.   We acknowledge that this case has numerous unfortunate and unusual facts that

contributed to a lack of timely service of process. However, “[t]he burden is upon the

plaintiffs to demonstrate good cause for failure to timely serve process.” Montgomery, 910

So. 2d at 547 (¶24) (citing Holmes, 815 So. 2d at 1185 (¶7)). The trial court correctly noted

that Appellants failed to file a motion for an extension of time prior to the 120-day deadline.

                                              14
No attempt was made to serve process for the first 116 days. Process was issued for Dr.

Toikus, and served on Dr. Jesse, on the 119th day. The process server had information that

should have alerted him to the possibility he was communicating with a different “Dr.

Westbrook.” Bound by our standard of review, we cannot say the trial court abused its

discretion in finding a lack of good cause or excusable neglect.

¶28. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

     GRIFFIS, P.J., ROBERTS AND MAXWELL, JJ., CONCUR. ISHEE, J.,
CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., FAIR
AND JAMES, JJ.; CARLTON, J., JOINS IN PART. CARLTON, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.

       IRVING, P.J., DISSENTING:

¶29.   In my judgment, the circuit court erred in finding that Collins failed to serve process

on Dr. Toikus Westbrook within 120 days of the filing of her complaint. Therefore, I dissent.

Even assuming that Dr. Toikus Westbrook was not served within the 120 days, I also believe

that the circuit court erred in not finding good cause to grant an extension so that Dr. Toikus

Westbrook could properly be served. Consequently, underlying this second issue is the

following question: Whether good-faith, but unsuccessful, actions taken by a plaintiff to

serve a defendant in the waning days of the initial 120-day period allowed by Rule 4 can

constitute good cause for not serving the complaint and summons within the 120-day period

when, during most of that period, the plaintiff failed to take any action to effectuate

process—other than obtaining the summons from the clerk of the court and placing a trusted

                                              15
paralegal in charge of getting the summons and complaint timely served. Stated another way,

does the failure of a plaintiff to take any action toward effectuating service of process until

the waning days of the 120-day period prevent, as a matter of law, a finding of good cause

for not serving process within the 120-day period, despite the effort that was made in the last

few days of the 120-day period?

¶30.   Collins’s counsel learned approximately four days prior to the expiration of the 120-

day period that his trusted and dependable legal assistant, due to personal problems, had not

effectuated process on Dr. Toikus Westbrook. Counsel sprang into action immediately,

contacting a process server in Hattiesburg, Mississippi. The process server was given two

addresses for Dr. Toikus Westbrook: one in Picayune, Mississippi, and one in Carthage,

Mississippi. The process server attempted unsuccessfully to serve Dr. Toikus Westbrook at

both addresses. What happened next is best explained by the colloquy between Collins’s

counsel and the Hattiesburg, Mississippi process server:

       Q.     Mr. Keith, tell Your Honor what efforts you were asked to make on
              behalf of my law firm to serve process on Dr. Toikus Westbrook, in or
              around April of this year?

       A.     Around April of this year, I was contacted by your law firm, Langston
              and Langston, to locate and serve process on a Toikus Westbrook. If
              I [re]call there were several – –

       THE COURT:            Let’s refer to them as junior and senior, so we’ll be sure
                             – – or can we not?

       MR. LANGSTON: Your Honor, it’s not junior and senior.

       THE COURT:            All right. What is it?


                                              16
MR. LANGSTON: The father is Jesse Westbrook and this gentleman is
              Toikus Westbrook. So there aren’t two Toikuses, I’m
              sorry.

THE COURT:          Dr. Jesse Westbrook is the father’s name; is that right?

MR. LANGSTON: Yes, sir. He’s a dentist, so I understand.

THE COURT:          All right.

A.    I was given, I believe, it was two addresses initially. One was in
      Picayune and one was in Carthage, if I’m not mistaken. We attempted
      to serve process on Dr. Toikus Westbrook at both of those locations.
      He was at neither address. I did further research in order to obtain a
      current address for Dr. Westbrook.

Q.    (By Mr. Langston) What kind of research did you do?

A.    It’s commonly referred to as a locator or a skip trace, and it’s basically
      research, computer research that shows reported addresses of people
      that reside at a given address. It’s based on – – we call credit header
      information. And when I did a search by the name of Toikus
      Westbrook, using his past known addresses as a template or as a
      method to link a newer address, I discovered an address for him in
      Germantown, Tennesssee. I obtained a phone number to the address in
      Germantown, Tennessee, and called. I believe I called and left a
      message for Dr. Toikus Westbrook. Someone called me back and
      ultimately identified himself as Dr. Toikus Westbrook. I advised him
      that I had a delivery for him. He said, you can – – I’m going to be
      leaving my home address. You can have someone meet me at a pizza
      parlor – –

Q.    All right. Let me back up just a moment. In that conversation you had,
      this was a return call you got; is that correct?

A.    Yes, sir.

Q.    And the return caller, when you answered the telephone, how did he
      identify himself?

A.    The conversation was had, and I told him that I had a delivery for Dr.

                                     17
     Toikus Westbrook.

Q.   What did he say originally?

A.   He – – when I told him that, he said, he’s not available.

Q.   Okay.

A.   And I said, well, I’ve got to give this to him. He’s got to sign for it.
     And he said, well, what is it about. And I told him it was something to
     do with a physician. I had found information that Dr. Westbrook was
     affiliated with the Maxim Physicians. Now, in my experience, I
     basically told him that I had a delivery regarding Maxim Physicians.

Q.   Okay. And so what did he say after that?

A.   He said, oh, that’s me. You can bring that to me. And I said, okay. He
     said, I – – that’s me, as in I am Dr. Toikus Westbrook.

Q.   Right.

A.   And I said, okay, I can have someone over at your house within a – –
     within the hour. And he stated, well, I’m leaving, going to some pizza
     place. He gave me the address he also gave me his cell phone number.
     It was at that time that I contacted my Memphis, Tennessee process
     server, which is Mr. Gary Murphree, and advised him that we – – I had
     a paper that needed to be served on a Dr. Toikus Westbrook, and he’d
     given the information that he would meet him at the said pizza place.

Q.   All right. So you asked him to then – –

A.   I asked him then to go to the pizza place and identify Dr. Toikus
     Westbrook and serve him the papers.

Q.   And do your notes identified [sic] on what day that service at that pizza
     restaurant, was accomplished?

A.   It was – – I believe that’s going to be April – – I mean, excuse me, July
     ––

Q.   Well, all right.

                                    18
MR. LANGSTON: We’ve admitted it into evidence, Your Honor. The proof
              of service.

THE COURT:           The Affidavit?

MR. LANGSTON: So the date speaks for itself, but – –

THE COURT:           May I see the – – Shane, would you hand it to me.

MR. LANGSTON: April 13th.

THE COURT:           This would be Exhibit 1, I believe. Is this it?

A.    Yes, sir, Your Honor, I don’t believe I’ve seen that Affidavit. But
      that’s not mine.

THE COURT:           Okay.

MR. LANGSTON: And, Your Honor, for the record, that is within the 10
              day period.

THE COURT:           So noted.

Q.    (By Mr. Langston) All right. Did you bring with you the computer
                        printout that you served for Dr. Toikus
                        Westbrook?

A.    Yes, sir, I did.

Q.    Okay.

MR. LANGSTON: And, Your Honor, I don’t have an extra copy of it.
              Opposite counsel’s welcome to see it, but I’d like to offer
              that into evidence.

THE COURT:           Any objection?

MR. HAGWOOD: Let me see it first. I haven’t seen it. May I look at it
             first?

THE COURT:           Okay.

                                      19
MR. HAGWOOD: If we’re just going to identify it, I’ll have to ask
             questions about it.

THE COURT:            You want it to be marked for identification? Le it be
                      marked for identification.

(Exhibit No. 5 marked for identification only and attached hereto)

Q.    (By Mr. Langston) Okay. Mr. Keith, will you identify the exhibit
                        that was just marked?

A.    Yes, sir.

Q.    What is that?

A.    This is a print-out of the research that I conducted in order to find a
      valid address for Dr. Toikus Westbrook. I have an account with
      LexisNexis. If you have an authorized purpose to look for an address
      belonging to any particular person, in this case the authorized purpose
      was Service of Legal Process. It will allow you to search by the name,
      Social Security number, address, et cetera. As I mentioned earlier, I
      took the addresses that we knew to be valid for him, he was just no
      longer there, or a past address, and linked it to a address that came up
      as the top reported address for a current address for Dr. Westbrook.

Q.    What address is that?

A.    1666 Newsome Drive, Germantown, Tennessee. It was reported as
      being current from 1992 to April ’12.

Q.    April 12, 2012?

A.    I’m sorry, April of 2012. It doesn’t give specific dates.

Q.    Okay.

A.    Or days.

Q.    All right. And is that the address that you called – –


                                     20
       A.    It is.

       Q.    – – and the man identified himself as Dr. Toikus Westbrook?

       A.    Yes, sir.

       MR. LANGSTON:                 No further questions, Your Honor.

¶31.   The Memphis, Tennessee process server testified as follows:

       Q.    And Mr. Murphree, do you recall in or around April of 2012, you were
             asked to deliver process to Dr. Toikus Westbrook?

       A.    Yes, I do.

       Q.    And tell Your Honor what you were asked to do, who asked you?

       A.    David Keith’s company called me and asked me to serve a paper, told
             me where the person would be, what time the person would be there.
             I got the papers in hand, went down to the place of – –

       Q.    Where did you go?

       A.    It was a pizza place.

       Q.    Incredible Pizza?

       A.    Incredible Pizza was the name of it. It was in – – off of Germantown
             Road there in Memphis, Tennessee.

       Q.    And tell Your Honor what you did after you got there.

       A.    When I got there, I had one of the employees to page . . . Toikus
             Westbrook. A black female lady came out and she took me back to the
             – – there was a little room back there and there was a gentleman sitting
             there. I asked him if he was Toikus Westbrook; he said yes. I had the
             papers in a box. I opened the box, I handed him the papers, and I left.

       MR. LANGSTON: No further questions.

In addition to providing the testimonies set forth above, both of the process servers gave

                                             21
affidavits containing essentially the same information as testified to, although the live

testimony was a bit more expansive.

¶32.    Neither Dr. Jesse Westbrook nor Dr. Toikus Westbrook testified concerning what

happened during the effort to serve Dr. Toikus Westbrook, choosing instead to submit an

affidavit. However, Dr. Toikus Westbrook’s affidavit was not submitted until approximately

two weeks after the hearing on the motion to dismiss had been held.             In Dr. Jesse

Westbrook’s affidavit, he stated that his home address was 1666 Newsum Drive,

Germantown, Tennessee, that he was served with process in the instant case on or about

April 14, 2012, and that he had no personal knowledge of the case other than his son was

named Toikus Westbrook. In Dr. Toikus Westbrook’s affidavit filed on November 26, 2012,

he stated that his current address had been 1542 Debattista Place, New Orleans, Louisiana,

since 2005; that his residence telephone number in New Orleans, Louisiana, had been 504-

365-2153 since 2005; that his father is Jesse Westbrook and that his father’s address is 1666

Newsum Drive, Germantown, Tennessee; that he had never been served with process in this

case.

¶33.    Based upon this testimony and the affidavits of Drs. Jesse and Toikus Westbrook, the

circuit court found:

        The Court finds that from December 16, 2011, when the Complaint was filed,
        until April 14, 2012, the expiration of the 120-day time period, no application
        was made to this Court that good cause existed for the Court to grant an
        extension of time to serve Dr. Toikus Westbrook, nor has any application been
        made for extension, to this date.

        On April 12, 2012, Mr. Robert David Keith, II, a process server hired by

                                              22
       Plaintiffs’ counsel, began the process of serving Dr. Toikus Westbrook. On
       April 13, 2012, the process server emailed information to the Langston firm,
       Plaintiffs’ counsel, detailing that Dr. Toikus Westbrook may have more than
       one physical address including Germantown, Tennessee, and New Orleans,
       Louisiana, and specifically noted that, “I think the chances of locating and
       serving him today are very slim.” It further appears that after receiving notice
       from the process server that “the chances of locating and serving Dr. Toikus
       Westbrook today are very slim,” Plaintiff failed to file a motion for extension
       of time to serve Dr. Toikus Westbrook.

       As pointed out by Plaintiffs’ counsel during the hearing of this matter, he had
       tasked a former legal assistant, who was experiencing some personal problems,
       with making sure that process was served within the one hundred twenty (120)
       day period. Plaintiff argued that they acted in good faith during the one
       hundred twenty (120) service period and believed that they had served process
       on Dr. Toikus Westbrook until they learned otherwise.

       This Court finds that once process server, Davy Keith, had located an address
       for Dr. Toikus Westbrook in Germantown, Tennessee, he contacted Gary
       Murphree, a process server in Germantown, Tennessee, to serve process on Dr.
       Toikus Westbrook. Mr. Keith called Dr. Jesse Westbrook and left a message.
       Thereafter, Dr. Jesse Westbrook returned Mr. Keith’s call and told Mr. Keith
       that Dr. Toikus Westbrook was “not available.” Mr. Keith explained that he
       had a delivery for Dr. Toikus Westbrook from Dr. Toikus Westbrook’s
       employer, Maxim Physicians. Although the dialogue between Mr. Murphree
       and Dr. Jesse Westbrook at the pizza parlor where they met is disputed,
       Plaintiffs assert that Dr. Jesse Westbrook told him he was Dr. Toikus
       Westbrook. However, on cross-examination, Mr. Murphree acknowledged
       that their strategy was a subterfuge designed to deceive Dr. Jesse Westbrook
       to induce him to appear at the pizza parlor to receive the summons. In
       addition, Dr. Jesse Westbrook testified by affidavit that Mr. Mumphree asked
       him if he was “Dr. Westbrook,” who, of course, he is.

       At this time, Mr. Murphree then served Dr. Jesse Westbrook with the
       summons, which was enclosed in a box, and left.

¶34.   It is clear to me that the circuit court in making its findings of fact overlooked key

pieces of evidence and misquoted others. First, there is no evidence in this record to support

the circuit court’s finding that Dr. Jesse Westbrook returned Davy’s call. According to

                                             23
Davy’s testimony, he called the telephone number for the Germantown address and left a

message for Dr. Toikus Westbrook. “Someone called back and ultimately identified himself

as Dr. Toikus Westbrook.” (emphasis added). Neither Dr. Jesse Westbrook’s nor Dr. Toikus

Westbrook’s affidavit addresses this conversation. Therefore, there is no basis in this record

for the trial court’s finding that Dr. Jesse Westbrook returned the call. Accepting as a fact

that Dr. Toikus Westbook does not live at, and has not ever lived at, 1666 Newsum Drive,

Germantown, Tennessee, does not prove that he was not present at that address when (1) the

telephone call was made, (2) the telephone call was returned, (3) and the summons and

complaint were served at the pizza establishment. There is no evidence in the record as to

Dr. Toikus Westbrook’s whereabouts on April 13, 2012.

¶35.   The circuit court also found that the Tennessee process server served Dr. Jesse

Westbrook on April 13, 2012. Again, there is no evidence in the record to support this

finding. While it is not disputed that someone was served at the pizza establishment, there

is no evidence in this record to support the circuit court’s finding that the process server

served Dr. Jesse Westbrook at the Pizza establishment. Neither Dr. Jesse Westbrook nor Dr.

Toikus Westbrook, in his affidavit, identifies the place where Dr. Jesse Westbrook was

allegedly served with process. The only evidence in the record as to where any service took

place and who was served came from the Tennessee process server, who, as stated, testified

as follows:

       When I got there, I had one of the employees to page . . . Toikus Westbrook.
       A black female lady came out and she took me back to the – – there was a little
       room back there and there was a gentleman sitting there. I asked him if he was

                                             24
       Toikus Westbrook; he said “yes.” I had the papers in a box. I opened the box,
       I handed him the papers, and I left.

(Emphasis added).

¶36.   Finally, as noted, the circuit court found:

       However, on cross-examination, Mr. Murphree acknowledged that their
       strategy was a subterfuge designed to deceive Dr. Jesse Westbrook to induce
       him to appear at the pizza parlor to receive the summons. In addition, Dr.
       Jesse Westbrook testified by affidavit that Mr. Mumphree asked him if he was
       “Dr. Westbrook,” who, of course, he is.

(Emphasis added). I find nothing in the record to support this finding. First, why would

Collins’s counsel want to induce Dr. Jesse Westbrook to appear at the pizza parlor to receive

the summons? Any summons received there by Dr. Jesse Westbrook would not have

effectuated service on Dr. Toikus Westbrook. Second, with due respect to the circuit court,

Dr. Jesse Westbrook did not testify by affidavit that Mr. Mumphree asked him if he was Dr.

Westbrook. As noted, neither Dr. Jesse nor Dr Toikus Westbrooks describes in his affidavit

what happened at the pizza establishment.

¶37.   For the reasons presented, I find the circuit court’s finding—that the Tennessee

process server served Dr. Jesse Westbrook, not Dr. Toikus Westbrook—is not supported by

substantial evidence. Therefore, I would reverse and render the judgment of the circuit court

and remand this case for further proceedings. Alternatively, I would find that Collins proved

good cause for an extension of time to serve Dr. Toikus Westbrook, assuming he was not in

fact served on April 13, 2012. Despite the circuit court’s finding that Collins never filed a

motion for extension of time, it is clear from the record that Collins asked for such relief,


                                             25
although admittedly not via a motion. In Collins’s rebuttal to Dr. Toikus Westbrook’s brief

in support of his motion to dismiss, Collins concluded: “Plaintiffs therefore respectfully

request this court to deny defendants[’] motion to dismiss and grant to plaintiffs an extension

of time to serve the Defendant, Dr. Toikus Westbrook.” Such an extension could have and

should have been granted under the authority of Foss v. Williams, 993 So. 2d 378 (Miss.

2008).

     LEE, C.J., FAIR AND JAMES, JJ., JOIN THIS OPINION. CARLTON, J.,
JOINS THIS OPINION IN PART.




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