                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2006-CT-00519-SCT

MERLEAN MARSHALL, ALPHONZO MARSHALL
AND ERIC SHEPARD, INDIVIDUALLY AND ON
BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF LUCY SHEPARD,
DECEASED

v.

KANSAS CITY SOUTHERN RAILWAYS COMPANY,
ERIC W. ROBINSON, THE ESTATE OF ROBERT
EVERETT AND C.L. DUETT

                            ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                         01/10/2006
TRIAL JUDGE:                              HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                SCOTT COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 JAMES W. CRAIG
                                          HERBERT LEE
ATTORNEYS FOR APPELLEES:                  CHARLES E. ROSS
                                          CHARLES H. RUSSELL, III
                                          BENJAMIN NOAH PHILLEY
NATURE OF THE CASE:                       CIVIL - WRONGFUL DEATH
DISPOSITION:                              REVERSED AND REMANDED - 03/05/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    This case is before the Court on writ of certiorari. Merlean Marshall, Alphonzo

Marshall, and Eric Shepard, individually and on behalf of all wrongful-death beneficiaries

of Lucy Shepard (collectively “Beneficiaries”), petitioned this Court for writ of certiorari

after the Court of Appeals affirmed the Scott County Circuit Court’s dismissal of their
wrongful-death action as time-barred. We consider whether the Beneficiaries’ claims survive

pursuant to the savings provision of Section 15-1-69 of the Mississippi Code. Finding the

circuit court and the Court of Appeals erred, we reverse and remand so that the Beneficiaries

may proceed in the trial court with their action against the defendants, Kansas City Southern

Railway Company (“KCS”) and the train crew.1

                    FACTS AND TRIAL COURT PROCEEDINGS

¶2.    On July 10, 1998, a van driven by Lucy Shepard collided with a KCS train. Shepard

died as a result of the accident, while Phyllis McKee, a passenger in the van, survived. On

July 20, 1998, ten days after the accident, Shepard’s Beneficiaries filed a wrongful-death

action (“Shepard I”) against KCS and the train crew in the Circuit Court of Scott County.2

McKee filed a separate negligence action against KCS and the train crew in a Mississippi

state court. See McKee v. Kan. City S. Ry., 281 F.3d 1279 (5th Cir. 2001).

¶3.    On June 22, 1999, KCS removed Shepard I to the United States District Court for the

Southern District of Mississippi, claiming the train crew was fraudulently joined to defeat

diversity jurisdiction. The Beneficiaries responded with a motion to remand, which was

denied. The district court found that the train crew was fraudulently joined to defeat

diversity jurisdiction, and it dismissed the train crew 3 from the action on March 30, 2000.


       1
      Eric Robinson, C.L. Duett, and Robert Everett were members of the train crew and
named defendants. Everett was the conductor, and Robinson and Duett were engineers.
       2
        Robinson, Everett, and Duett were residents of Mississippi at the time the complaint
was filed.
       3
         In its order denying the motion to remand, the district court did not specify whether
the train crew was dismissed with or without prejudice. Furthermore, the record does not

                                              2
The Beneficiaries then filed an interlocutory appeal to contest the order denying their motion

to remand. The Fifth Circuit Court of Appeals dismissed the interlocutory appeal as

premature, since the district court’s denial of the motion was not certified under 28 U.S.C.

§ 1292(b) or Federal Rule of Civil Procedure 54(b).

¶4.    Meanwhile, the McKee case also was removed to federal court and assigned to the

same district court judge. As with Shepard I, the district court dismissed the train crew as

fraudulently joined. Thereafter, the McKee case went to trial, and a jury returned a verdict

in favor of KCS.

¶5.    Upon learning of the McKee verdict, the Beneficiaries filed a motion for entry of final

judgment in favor of KCS under Rule 54 of the Federal Rules of Civil Procedure. In their

motion for entry of final judgment, the Beneficiaries stated, in relevant part:

       The issues in the case sub judice are identical to the issues in McKee and those
       issues have been decided by a jury in favor of the Kansas City Southern
       Railway Company. Since the Court and the Defendant have previously opined
       that the jury’s verdict in McKee and the final judgment entered pursuant to that
       verdict are binding upon the Plaintiff and the Defendant herein, there is no just
       reason to delay the entry of a final judgment in this action.




contain a Rule 54(b) certification as to the dismissal of the train crew. See Fed. R. Civ. P.
54(b). Under Rule 54(b), “any order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the parties does not end
the action as to any of the claims or parties and may be revised at any time before the entry
of judgment adjudicating all the claims and all the parties’ rights and liabilities.” Id.

                                                3
¶6.    KCS did not oppose entry of final judgment but argued the motion should be granted

under Rule 41(a)(2)4 of the Federal Rules of Civil Procedure. In its response to the motion

for entry of final judgment, KCS stated:

       It is apparent from Plaintiffs’ Motion, and from representations by her counsel
       to this Defendant and the Court, that Plaintiff wishes to terminate proceedings
       before this Court and appeal to the Fifth Circuit Court of Appeals this Court’s
       rulings denying the Plaintiffs’ Motion to Remand and Motion to Reconsider
       Order Denying Remand. Defendant would agree to entry of order dismissing
       Plaintiffs’ claims with prejudice and expressly reserving the Plaintiffs’ right
       to challenge this Court’s subject matter jurisdiction on appeal to the Fifth
       Circuit.

(Emphasis added).

¶7.    On September 30, 2003, the district court entered an order of dismissal and entry of

final judgment referring to Rule 41(a)(2) of the Federal Rules of Civil Procedure. In the

order, the district court noted that “the parallel case denominated Phyllis Body McKee v.

Kansas City Southern Railway, Civil Action No. 3:99-cv-393WS, which involves the same

defendants as the instant case, the same facts and the same questions of law, was determined

in favor of the defendants by jury verdict.” 5 The court did not specify whether the judgment

was with or without prejudice.



       4
        Rule 41(a)(2) provides “an action may be dismissed at the plaintiff’s request only by
court order, on terms that the court deems proper . . . . Unless the order states otherwise, a
dismissal under this paragraph (2) is without prejudice. Fed. R. Civ. P. 41(a)(2) (emphasis
added).
       5
        The McKee verdict was appealed to the Fifth Circuit Court of Appeals, and the Fifth
Circuit vacated the verdict and remanded the case to state court. See McKee v. Kan. City S.
Ry. Co., 358 F.3d 329, 337 (5th Cir. 2004). The Fifth Circuit found that the district court
lacked subject matter jurisdiction over the action, since the train crew was not fraudulently
joined to defeat diversity jurisdiction. Id. at 331, 337.

                                              4
¶8.    Upon Shepard I’s dismissal, the Beneficiaries again appealed the order denying their

motion to remand. The Fifth Circuit concluded the dismissal was without prejudice pursuant

to Rule 41(a)(2), and thus, it lacked jurisdiction to hear the appeal. See Marshall v. Kan.

City S. Ry. Co., 378 F.3d 495 (5th Cir. 2004).

¶9.    After the Fifth Circuit dismissed the appeal in Shepard I, the Beneficiaries refiled their

wrongful-death action in the Circuit Court of Scott County (“Shepard II”) on August 16,

2004. The Beneficiaries again named KCS and the train crew 6 as defendants and asserted

virtually the same claims as in Shepard I. Shepard II also was removed to federal court

based on diversity jurisdiction and fraudulent joinder.

¶10.   Thereafter, the Beneficiaries filed a motion to remand, which was granted by a

different district judge. See Marshall v. Kan. City S. Ry. Co., 372 F. Supp. 2d 916 (S.D.

Miss. 2005). In its opinion and order, the district court relied upon the Fifth Circuit’s holding

in McKee v. Kansas City Southern Railway Company, 358 F.3d 329, 337 (5th Cir. 2004).

Id. at 921. The court specifically found:

       [T]he Fifth Circuit has already considered and rejected similar arguments . .
       . in the McKee suit . . . Based on the holdings of the Fifth Circuit in the
       McKee suit, and based on this Court’s own review of the facts and claims in
       this case, the Court finds that Plaintiffs have asserted claims against the non-
       diverse Defendants for which a Mississippi state court may grant relief.

Id.




       6
           Everett had passed away, so his estate was named as a party defendant in Shepard
II.

                                               5
¶11.   Upon the remand of Shepard II to state court, KCS and the train crew sought

dismissal based on the statute of limitations. KCS and the train crew argued that the

Beneficiaries’ claims were time-barred under the three-year statute of limitations of

Mississippi Code Section 15-1-49 (Rev. 2003) 7 and that the voluntary dismissal without

prejudice was not a dismissal as a “matter of form” under Mississippi Code Section 15-1-69

(Rev. 2003).

¶12.   The trial court entered an order of dismissal with prejudice, finding that all claims

were time-barred under Section 15-1-49 of the Mississippi Code. The Beneficiaries timely

appealed.

                  PROCEEDINGS AT THE COURT OF APPEALS

¶13.   The Court of Appeals found the statute of limitations had run, and absent “saving,”

the Beneficiaries’ claims were time-barred, affirming the trial court judgment. Marshall v.

Kan. City S. Ry. Co., 2007 Miss. App. LEXIS 752, at * 6 (Miss. Ct. App. Nov. 6, 2007). The

Court of Appeals held that the Beneficiaries could not benefit from Section 15-1-69, as their

dismissal was not within the purview of the Savings Statute. Id. at *9-*10, *14.

                                       DISCUSSION

¶14. This Court reviews a statute-of-limitations issue under a de novo standard.

Champluvier v. Beck, 909 So. 2d 1061, 1063 (Miss. 2004).

¶15.   The question this Court must determine is whether the statute of limitations for the

Beneficiaries’ claims has run. The statute of limitations for all claims began to run July 10,

       7
       It is undisputed that Section 15-1-49 applies to the claims asserted by the
Beneficiaries.

                                              6
1998, when Shepard was fatally injured in the train collision. The Beneficiaries filed their

complaint on July 20, 1998, well within the three-year statute of limitations.           Their

complaint, however, was dismissed on September 30, 2003, and final judgment entered more

than five years after the cause of action accrued. This Court previously has held that a

voluntary dismissal without prejudice:

       [D]oes not deprive the defendant of any defense he may be entitled to make to
       the new suit, nor confer any new right or advantage on the complainant
       (plaintiff), and hence it will not have the effect of excepting from the period
       prescribed by the statute of limitations, the time during which that suit was
       pending.

Smith v. Copiah County, 100 So. 2d 614, 616 (Miss. 1958) (quoting W. T. Raleigh Co. v.

Barnes, 143 Miss. 597, 109 So. 8, 9 (1926) (quoting Nevitt v. Bacon, 32 Miss. 212, 228

(1856) (emphasis added))). Based on this Court’s holding in Smith, the statute of limitations

for the Beneficiaries’ claims has run unless saved pursuant to Section 15-1-69 of the

Mississippi Code.

¶16.   Section 15-1-69 of the Mississippi Code provides in relevant part:

              If any action, duly commenced within the time allowed, the writ shall
       be abated, or the action otherwise avoided or defeated, by the death of any
       party thereto, or for any matter of form . . . the plaintiff may commence a new
       action for the same cause, at any time within one year after the abatement or
       other determination of the original suit.

Miss. Code Ann. § 15-1-69 (Rev. 2003) (emphasis added). This Court previously has ruled

that Section 15-1-69 applies to those cases “[w]here the plaintiff has been defeated by some

matter not affecting the merits, some defect or informality, which [the plaintiff] can remedy

or avoid by a new process, the statute shall not prevent him from doing so, provided he



                                             7
follows it promptly, by suit within a year.” Hawkins v. Scottish Union & Nat’l Ins. Co., 110

Miss. 23, 69 So. 710, 713 (1915). Furthermore, the statute is “‘highly remedial’” and “‘ought

to be liberally construed.’” Id. at 712 (quoting Tompkins v. Pacific Ins. Co., 44 S.E. 439,

441 (W. Va. 1903)). “[G]ood faith in the institution of the action dismissed is an element in

determining the right to invoke the statute.” Id.

¶17.     The parties do not dispute that Shepard I was duly commenced within the three-year

statute of limitations. Furthermore, the parties do not dispute that Shepard II (filed August

16, 2004) constituted a new action for the same cause and was filed within one year of

Shepard I’s dismissal (dismissed September 30, 2003). At issue is whether the dismissal

entered by the district court is a “matter of form.” See Miss. Code Ann. § 15-1-69 (Rev.

2003).

¶18.     The Beneficiaries concede that a voluntary dismissal without prejudice is generally

not considered a “matter of form” within the purview of Section 15-1-69 of the Mississippi

Code. See Barnes, 109 So. at 9. The Beneficiaries argue, however, that the voluntary

dismissal without prejudice was based on the district court’s lack of subject matter

jurisdiction. The Beneficiaries essentially request that this Court consider the record as a

whole and find the dismissal was based on a lack of subject matter jurisdiction. See Ryan

v. Wardlaw, 382 So. 2d 1078, 1080-81 (Miss. 1980) (holding that a dismissal for lack of

subject matter jurisdiction is a matter of form under Section 15-1-69); Fredrick Smith

Enter. Co. v. Lucas, 36 So. 2d 812, 814 (Miss. 1948) (same); Hawkins v. Scottish Union

& Nat’l Ins. Co., 69 So. at 712 (same).



                                              8
¶19.   KCS and the train crew argue that this Court should follow the general rule of Barnes

and find a voluntary dismissal without prejudice is not a “matter of form.” See Barnes, 109

So. at 9. KCS and the train crew contend that Section 15-1-69 should not apply to cases

where the plaintiff voluntarily dismisses a case because of dissatisfaction with the district

court’s rulings. According to KCS and the train crew, the Beneficiaries received exactly

what they requested, a voluntary dismissal, and the Beneficiaries should be bound by their

strategic decision.8

¶20.   In Barnes, the trial court dismissed a cause of action without prejudice. Id. The

plaintiff and defendant agreed that the dismissal was a nonsuit. Id. Thereafter, the plaintiff

refiled suit within one year of the dismissal of the first cause of action. Id. The trial court

dismissed the second action, ruling that Section 15-1-69 was inapplicable to a nonsuit. Id.

¶21.   In determining whether a voluntary dismissal without prejudice was a dismissal as a

“matter of form,” the Court noted the following:

              The motion on which the first suit was dismissed does not appear in the
       record, and there is nothing in the order of dismissal indicating that it was a
       mere abatement of the action, or that the dismissal was “for any matter of
       form,” but in an agreement of counsel the dismissal is referred to as a nonsuit.
       The statute invoked, therefore, can afford the appellant no relief . . . . A
       nonsuit or a dismissal without prejudice . . . must be for a matter of form, and,
       as hereinbefore stated, it does not appear that the appellant’s prior suit was
       dismissed for that reason.

Id.




       8
        This Court notes that the Beneficiaries did not request a voluntary dismissal but a
final judgment under Rule 54.

                                              9
¶22.   Recently, this Court clarified the holding in Barnes when it found that a voluntary

dismissal without prejudice could be considered a dismissal as a “matter of form.” Crawford

v. Morris Transp., Inc., 990 So. 2d 162, 174 (Miss. 2008). In Crawford, a plaintiff filed a

petition to perpetuate testimony in a Mississippi circuit court. Id. at 165. The circuit court

allowed the plaintiff to depose various resident and nonresident defendants, and following

the depositions, the defendants removed the petition to federal court. Id. The nonresident

defendants claimed the plaintiff had fraudulently joined the resident defendants to defeat

diversity jurisdiction. Id. Thereafter, the federal court dismissed the resident defendants

from the action. Id.

¶23.   The plaintiff then filed a motion to dismiss without prejudice, or in the alternative, to

remand, claiming the defendants had improperly removed the action. Id. The federal court

found the defendants had prematurely removed the action and granted the plaintiff’s motion

to dismiss without prejudice. Id. at 166.

¶24.   After the federal court dismissed the petition, the plaintiff filed a complaint in state

court. Id. 167-68. The complaint was filed outside the statute of limitations and eleven

months after the dismissal of the petition. Id. The defendant moved to dismiss the action as

time-barred, arguing Section 15-1-69 did not apply to a voluntary dismissal without

prejudice. Id. at 168. The trial court dismissed the action with prejudice. Id.

¶25.   On appeal, this Court started its analysis of Section 15-1-69 with the premise that

voluntary dismissals are not dismissals as a matter of form, but that dismissals for lack of

subject matter jurisdiction are considered dismissals as a matter of form. Id. at 170. The



                                              10
Court proceeded to review the “content or substance” of the record to determine the purpose

or reason for the plaintiff’s voluntary dismissal without prejudice. Id. at 171-72.

¶26.   The Court concluded that the plaintiff’s motion to dismiss, and the district court’s

grant of dismissal, were based on the fact that a complaint had never been filed. Id. at 172.

Therefore, the Court construed the voluntary dismissal without prejudice as a dismissal for

lack of subject matter jurisdiction. Id. at 173-74. In support of its holding, the Court noted:

       Unlike Barnes, the record in this case supports that dismissal was based upon
       a “matter of form” not affecting the merits–namely, a lack of jurisdiction due
       to the absence of a complaint. [The Plaintiff] inadvertently found himself in
       a procedural quagmire and made a good-faith effort to preserve his claim. We
       find that application of the savings statute to [the Plaintiff’s] 2005 complaint
       is appropriate and consistent with the purposes of the statute.

Id. at 174.

¶27.   We find Crawford analogous to the case at hand. Like the plaintiff in Crawford, the

Beneficiaries sought dismissal of their cause of action based on the district court’s lack of

subject matter jurisdiction. In fact, the record discloses that the Beneficiaries diligently

contested the district court’s subject matter jurisdiction in Shepard I. The record shows that

the Beneficiaries sought a Rule 54(b) certified judgment to challenge the district court’s

subject matter jurisdiction. Prior to the dismissal, the Beneficiaries had filed a motion to

remand and an interlocutory appeal of the order denying the motion to remand. In response

to the motion to dismiss, KCS expressly stated that the Beneficiaries had requested the

dismissal to contest the court’s subject matter jurisdiction. Thereafter, the Beneficiaries

appealed the order denying their motion to remand. Even more compelling is the outcome

of the McKee case, in which the Fifth Circuit Court of Appeals held that the district court

                                              11
lacked subject matter jurisdiction over the same claims asserted against the same defendants

as the case at hand. See McKee v. Kan. City S. Ry. Co., 358 F. 3d 329, 337 (5th Cir. 2004).

¶28.   Similar to the plaintiff in Crawford, the Beneficiaries “inadvertently found

[themselves] in a procedural quagmire and made a good-faith effort to preserve [their]

claim[s].” Crawford, 990 So. 2d at 174. At no point did the Beneficiaries abandon their

claims against KCS and the train crew. They continually and in good faith sought to have

the merits of their case heard in a Mississippi state court. See Hawkins v. Scottish Union

& Nat’l Ins. Co., 110 Miss. 23, 69 So. 710, 712 (1915) (ruling that good faith is an element

to consider in determining the right to invoke the savings statute). After reviewing the

record, we find the order of dismissal and entry of final judgment was a matter of form under

Section 15-1-69, as the dismissal was based on the district court’s lack of subject matter

jurisdiction. Pursuant to Section 15-1-69, Shepard II was timely filed, and we reverse the

ruling of the Court of Appeals and the circuit court and remand this case for further

proceedings.

                                     CONCLUSION

¶29.   Under the facts and circumstances of this case, we find the dismissal of Shepard I

constitutes a dismissal as a matter of form under Section 15-1-69 of the Mississippi Code.

The Beneficiaries timely refiled their second cause of action within one year of Shepard I’s

dismissal. Therefore, we reverse the judgment of the Court of Appeals and the trial court

judgment and remand the case to the trial court for further proceedings.

¶30.   REVERSED AND REMANDED.



                                             12
    WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
KITCHENS AND PIERCE, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.




                                13
