                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2005-IA-01095-SCT

BACOU-DALLOZ SAFETY, INC. f/k/a DALLOZ
SAFETY, INC. f/k/a WGM SAFETY CORPORATION

v.

THOMAS HALL, ET AL.

DATE OF JUDGMENT:                               05/20/2005
TRIAL JUDGE:                                    HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                      JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                        ALBEN N. HOPKINS
                                                ALBEN NORRIS HOPKINS, JR.
ATTORNEYS FOR APPELLEES:                        GUY GLADSTONE FISHER
                                                GERALD MAPLES
NATURE OF THE CASE:                             CIVIL - OTHER
DISPOSITION:                                    REVERSED AND RENDERED - 09/07/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

          BEFORE SMITH, C.J., WALLER, P.J., AND DICKINSON, J.

          DICKINSON, JUSTICE, FOR THE COURT:

¶1.       This is the appeal of a Jones County Circuit Court Order denying a defendant’s motion

to dismiss for failure to serve process within the 120-day service period provided by Rule 4(h)

of the Mississippi Rules of Civil Procedure. For the reasons discussed herein, we reverse and

render.

                         BACKGROUND FACTS AND PROCEEDINGS

¶2.       Bacou- Dalloz Safety, Inc., is one of 85 defendants sued by 2,779 plaintiffs who allege

various silica-related personal injuries.   The correct agent for service of process upon Bacou-
Dalloz is Corporation Service Company, located at 2711 Centerville Road, Wilmington,

Delaware 19808.

¶3.    In the plaintiffs’ original complaint filed on September 13, 2002, the agent for service

of process for Bacou-Dalloz was incorrectly listed as Corporate Service Company, 1013

Center Road, Wilmington, Delaware 19805.               Plaintiffs’ counsel explain that they had

successfully served process on Bacou- Dalloz at this address in the past.1      For reasons we are

not told, the complaint and process ended up at CT Corporation System, 1209 Orange Street,

Wilmington, Delaware 19801.

¶4.    On December 10, 2002, CT Corporation System returned the documents and informed

plaintiffs’ counsel that it was not the registered agent for Bacou-Dalloz.         For reasons not

provided in the record, the plaintiffs made no further attempt to serve the original complaint

on Bacou-Dalloz.

¶5.    Thereafter, plaintiffs filed their First Amended Complaint on December 31, 2002,

which again incorrectly listed Corporate Service Company, 1013 Center Road, Wilmington,

Delaware 19805, as the agent for service of process for Bacou-Dalloz.             For reasons not

disclosed in the record, plaintiffs never attempted to serve Bacou- Dalloz at any address with

the First Amended Complaint.




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          We presume that plaintiffs’ counsel had served Corporation Service Company at 1013 Centre
Road, Wilmington, Delaware 19805 in the past, but the company had since moved to 2711 Centerville
Road, Wilmington, Delaware 19808. However, neither the parties nor the record provides an explanation
for the cause of the mistaken address.

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¶6.    Nearly fifteen months later, on March 10, 2004, plaintiffs filed a Motion for Leave to

File Plaintiffs’ Second Amended Complaint.       The motion claimed the amended complaint was

necessary, in part, to “correct service information for Defendant[] Dalloz Safety, Inc.       . . . .”

However, the proposed Second Amended Complaint again recited an incorrect address for

Bacou-Dalloz’s agent for process, 1013 Center Road, Wilmington, Delaware 19801, although

the agent’s name was corrected. The motion was granted, and on May 24, 2004, Bacou-Dalloz

was somehow served with the Second Amended Complaint.2

¶7.    On June 22, 2004, Bacou-Dalloz filed its Motion to Dismiss and Answer and Defenses

to the plaintiffs’ Second Amended Complaint, asserting it was served with process 499 days

after the 120-day service period had expired. The circuit court called up the motion on March

30, 2005.     Although plaintiffs’ counsel endeavored to explain why she attempted service of the

Original Complaint on an incorrectly named agent for process at its former address, she

offered no explanation as to why she did not attempt to serve Bacou- Dalloz with the First

Amended Complaint, and she offered no good cause for waiting one year and five months after

learning of the failed service to finally serve process on Bacou-Dalloz. Nevertheless, on May

20, 2005, the circuit court entered its order denying Bacou-Dalloz’s Motion to Dismiss.

Bacou-Dalloz timely filed its Petition for Interlocutory Appeal, which we granted.                See

M.R.A.P. 5.


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         We presume that Corporation Service Company received the notice after it was forwarded from
the 1013 Centre Road address to the correct 2711 Centerville Road address. However, neither the parties
nor the record sheds any light on the specifics of the service. We are simply told that Bacou-Dalloz’s
proper agent for service of process was served on May 24, 2004.

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                                            DISCUSSION

¶8.     Although Bacou-Dalloz frames the issue as three separate considerations, there is but

one assignment of error before us on appeal: whether the circuit court erred in denying Bacou-

Dalloz’s Motion to Dismiss for failure to serve process within 120 days pursuant to M.R.C.P.

4(h).

¶9.     The denial of a motion to dismiss presents a question of law, which we review de novo.

Harris v. Miss. Valley State Univ., 873 So. 2d 970, 988 (Miss. 2004). We review any

findings of fact made by the circuit court for abuse of discretion.        Holmes v. Coast Transit

Auth., 815 So. 2d 1183, 1185 (Miss. 2002).

        I.      Whe ther the circuit court erred in denying Bacou-Dalloz’s Motion
                to Dismiss for failure to s e rve process within 120 days pursuant to
                M.R.C.P. 4(h).

¶10.    Rule 4(h) of the Mississippi Rules of Civil Procedure addresses service of process:

        If service of the summons and complaint is not made upon a defendant within
        120 days after the filing of the complaint and the party on whose behalf such
        service was required cannot show good cause why such service was not made
        within that period, the action shall be dismissed as to that defendant without
        prejudice upon the court’s own initiative with notice to such party or upon
        motion.

M. R. C. P. 4(h) (emphasis added). Bacou-Dalloz asserts the circuit court erred by denying its

Motion to Dismiss for failure to serve within the 120-day period provided by Rule 4(h).       The

record indicates plaintiffs attempted service of the Original Complaint on Corporation Service

Company at the wrong name and wrong address, although the address was one used by

plaintiffs’ counsel in the past to serve Bacou-Dalloz.         Somehow, another company - CT


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Corporation System – received Bacou-Dalloz’s service of process, and plaintiffs were

informed of this error by letter dated December 10, 2002. Plaintiffs made no attempt to serve

Bacou-Dalloz with their First Amended Complaint, filed December 31, 2002.           Plaintiffs only

served Bacou-Dalloz with the Second Amended Complaint on May 24, 2004, which was 619

days following the filing of the Original Complaint; 499 days after the 120-day period for

service of process expired; and one year and five months after plaintiffs learned they had

effected service on the wrong agent of process.    Under these facts, plaintiffs clearly failed to

timely serve Bacou-Dalloz.

¶11.   When service is not made within 120 days after the filing of the complaint, a plaintiff

must show good cause why process was not served within that period, or dismissal of the suit

is required. M. R.C. P. 4(h). See also Triple “C” Transp., Inc. v. Dickens, 870 So. 2d 1195,

1200-01 (Miss. 2004); Holmes, 815 So. 2d at 1185. Therefore, according to Rule 4(h) and

this Court’s precedent, the trial court should have dismissed this action as to Bacou-Dalloz

without prejudice unless plaintiffs demonstrated good cause as to why service was not made

within the 120-day service period.

¶12.   In order to establish good cause, plaintiffs “must demonstrate 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.” Webster v. Webster, 834 So. 2d 26, 28

(Miss. 2002) (citations omitted).    The record indicates plaintiffs attempted service of the

original complaint on Bacou-Dalloz through its registered agent for service of process at an



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incorrect name and incorrect address.          Even though they were informed of their mistake by

letter dated December 10, 2002, plaintiffs never explain why process was not then reissued

for Bacou-Dalloz’s agent for process at its correct address and served during the 120-day

period. They likewise fail to explain why they did not attempt to serve process for 499 days

following the expiration of the 120-day service period.

¶13.      Further, this Court has held that, if it appears service cannot be made 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.” Id. at 29.          Plaintiffs did not file the recommended motion

for extension of time.      Instead, they filed a Motion for Leave to file a Second Amended

Complaint and requested the clerk reissue summons on March 8, 2004, which was 442 days

after the 120-day period to serve process had expired.

¶14.      The record shows plaintiffs made only two attempts at service – the first in December

2002 at an incorrect address, and the second on May 24, 2004, successfully serving Bacou-

Dalloz.     Plaintiffs’ inaction, without adequate explanation, shows a lack of good cause far

beyond excusable neglect.      Because plaintiffs have failed to show good cause for not timely

serving Bacou-Dalloz, dismissal is required.

                                           CONCLUSION

¶15.      Plaintiffs neither served Bacou-Dalloz within the 120 days for service of process

following the filing of the original complaint on September 13, 2002, nor showed good cause

for their failure to do so as required by M.R.C.P. 4(h). As a result, the circuit court erred in

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denying Bacou-Dalloz’s Motion to Dismiss for Failure to Serve Process.    For these reasons,

we reverse the circuit court’s order denying Bacou-Dalloz’s Motion to Dismiss, and we render

judgment here dismissing without prejudice the Second Amended Complaint and this action

as to Bacou-Dalloz Safety, Inc.

¶16.   REVERSED AND RENDERED.

    SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON AND GRAVES, JJ.,
CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
RANDOLPH, J., NOT PARTICIPATING.




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