                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2016-IA-00570-SCT

RODNEY SHELTON FULGHAM

v.

CLARA JACKSON


DATE OF JUDGMENT:                        03/30/2016
TRIAL JUDGE:                             HON. CHARLES E. WEBSTER
TRIAL COURT ATTORNEY:                    S. TODD JEFFREYS
COURT FROM WHICH APPEALED:               BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  M. GARNER BERRY
ATTORNEY FOR APPELLEE:                   S. TODD JEFFREYS
NATURE OF THE CASE:                      CIVIL - PERSONAL INJURY
DISPOSITION:                             AFFIRMED AND REMANDED - 06/22/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE DICKINSON, P.J., KING AND CHAMBERLIN, JJ.

      CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1.   This interlocutory appeal arises from the Circuit Court of Bolivar County. Rodney

Fulgham argues that the trial judge below erred by denying his motion to dismiss. The

motion asserted that the plaintiff, Clara Jackson, failed to show good cause justifying a

second enlargement of time to serve process. Finding no error with the trial judge denying

the motion to dismiss, we affirm.
                                          FACTS

¶2.    On February 4, 2015, Jackson filed a complaint against Fulgham for damages arising

from a car accident.1 A summons was issued the next day, and both the complaint and

summons stated that Fulgham was incarcerated at the Bolivar County Correctional Facility

in Cleveland, Mississippi. On May 8, 2015, within the 120-day deadline to serve process,

Jackson filed a Motion for Enlargement of Time to Serve Process. In the motion, Jackson

stated that she believed Fulgham had been moved to the Carroll-Montgomery County

Regional Correctional Facility in Vaiden, Mississippi, and that additional time was needed

to serve Fulgham due to his movement through the prison system. The trial judge granted

the motion, giving Jackson an additional 120 days, until October 2, 2015, to serve process

on Fulgham.

¶3.    On September 23, 2015, Jackson filed a Second Motion for Enlargement of Time to

Serve Process. In the motion, Jackson claimed that she had been advised that Fulgham

would be returning to the correctional facility in Bolivar County but that such return never

occurred. Therefore, Jackson requested an additional sixty days to serve process. The trial

judge granted the second enlargement, giving Jackson until December 2, 2015, to serve

Fulgham. Ultimately, Jackson effectuated service of process on Fulgham on November 12,

2015, at the correctional facility in Carroll County.

¶4.    On December 17, 2015, Fulgham filed a Motion to Dismiss for failure to serve timely

process, along with his first responsive pleadings. Fulgham, through counsel, argued that his



       1
        The underlying facts concerning the car accident are not pertinent to this appeal.
                                              2
location in the prison system easily could have been determined by a name search on the

Mississippi Department of Corrections website and that Jackson was not diligent in locating

him. Thus, he argued that good cause was not shown for failing to serve process within the

first 120 days after the case had been filed. Jackson filed a response to the motion and the

trial judge held a hearing.

¶5.    At the hearing, Fulgham admitted that the first enlargement was properly granted and

abandoned the argument presented in the written motion. Fulgham conceded that, because

the first enlargement was sought within the initial 120-day time frame to serve process,

Jackson need only to show “cause,” not “good cause.” See Johnson v. Thomas ex rel.

Polatsidis, 982 So. 2d 405, 412 (Miss. 2008) (“Rule 4(h) clearly does not apply to a motion

for additional time filed within the initial 120 days.”). The trial judge, however, allowed

Fulgham to present an ore tenus motion to dismiss, asserting that Jackson had failed to show

“good cause” as to why a second enlargement should have been granted.

¶6.    In response to the ore tenus motion, counsel for Jackson claimed that he had contacted

an administrative official at the Bolivar County facility who initially stated that Fulgham was

in Rankin County for processing. Some time later, counsel learned from the administrative

official that Fulgham had been moved to the Carroll County facility but would be brought

back to Bolivar County within a couple of months. At this time, counsel said he sought the

first enlargement. Near the end of the 120-day period under the first enlargement, counsel

stated that he contacted the prison official again and learned that Fulgham’s return to Bolivar

County was not imminent, so he filed for the second enlargement of time to serve process.



                                              3
¶7.    On April 5, 2016, the trial judge entered an order denying Fulgham’s motion to

dismiss, finding that Jackson had demonstrated cause for the first enlargement and good

cause for the second. In doing so, the trial judge determined: (1) Fulgham’s incarceration

was a mitigating circumstance; (2) the actions of the administrative official misdirected

Jackson’s attempts to locate Fulgham; (3) that Jackson diligently inquired into Fulgham’s

location; and (4) that Jackson timely filed motions requesting additional time.

¶8.    On April 21, 2016, Fulgham filed a Petition for Interlocutory Appeal, which we

granted. Fulgham appeals, arguing the trial court abused its discretion in denying the motion

to dismiss.

                                       DISCUSSION

¶9.    “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.’”

Collins v. Westbrook, 184 So. 3d 922, 929 (Miss. 2016) (quoting Rains v. Gardner, 731 So.

2d 1192, 1197–98 (Miss. 1999)). With regard to these fact-findings, our review is limited

to determining only “whether the trial court abused its discretion and whether there was

substantial evidence supporting the determination.” Id. (citing Rains, 731 So. 2d at 1197).

On the other hand, “a decision to grant or deny an extension based upon a question of law

will be reviewed de novo.” Foss v. Williams, 993 So. 2d 378, 380 (Miss. 2008).

       A.     Additional motions for enlargements of time to serve process before
              the expiration of the original period or its previous extension
              require cause shown.




                                              4
¶10.    It is well-settled under Mississippi law that a plaintiff must serve process upon the

defendant(s) within 120 days of the filing of the complaint. See M.R.C.P. 4(h). Under Rule

4(h):

        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.

Id. In Cross Creek Productions v. Scafidi, 911 So. 2d 958, 960 (Miss. 2005), we found that

Rule 4(h)’s good-cause requirement “does not apply to a motion for additional time filed

within the initial 120 days.” Instead, we determined that, under Rule 6(b), a party need only

show “cause” to obtain an enlargement of time so long as the enlargement is sought within

Rule 4(h)’s 120-day period. Id. Rule 6(b) of the Mississippi Rules of Civil Procedure states:

        (b) Enlargement. When by these rules or by notice given thereunder or by
        order of court an act is required or allowed to be done at or within a specified
        time, the court for cause shown may at any time in its discretion (1) with or
        without motion or notice order the period enlarged if request therefore is
        made before the expiration of the period originally prescribed or as extended
        by a previous order, or (2) upon motion made after the expiration of the
        specified period permit the act to be done where failure to act was the result
        of excusable neglect; but it may not extend the time for taking any action under
        Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent
        and under the conditions therein stated.

M.R.C.P. 6(b) (emphasis added).

¶11.    In Johnson, we again read Rule 4(h) in conjunction with Rule 6(b), restating that a

plaintiff is entitled to a first enlargement of time “for cause shown” when he or she files a

motion for enlargement of time within the 120-day time period prescribed in Rule 4(h).



                                               5
Johnson, 982 So. 2d at 413. However, we then stated—without citing any language from

the rules in support—that “once a party has received a first extension of time under Rule 4(h)

in which to serve process, a second or subsequent extension to effectuate service of process

may be granted by the trial court only upon a showing of ‘good cause.’” Johnson, 982 So.

2d at 413 (emphasis added). We are convinced that this statement of the law in Johnson was

in error as it conflicts with the plain language of Rule 6(b).

¶12.   The Johnson Court stated:

       While we recognize that Rule 6(b)(1) provides for an enlargement of time “for
       cause shown,” when reading the two Rules together, it is apparent that Rule
       4(h) requires “good cause” after the expiration of 120 days. Because Rule 4(h)
       is the specific rule applicable in today’s case and Rule 6(b)(1) is a
       general-application rule, the language in Rule 4(h) controls.

Id. Rule 4(h), however, is not a specific rule governing a general rule because Rule 4(h) and

Rule 6(b) are in no way contradictory. Rule 4(h) places a duty upon the trial court regarding

service after 120 days and does not address enlargements of time. Rule 6(b), on the other

hand, addresses enlargements of time and specifically notes the rules which remain

unaffected by Rule 6(b). See M.R.C.P. 6(b). Notably, Rule 4 is not one of those rules.

Therefore, if Rule 6(b) is meant to be read in conjunction with Rule 4(h), then a trial judge

has discretion to grant a second (or third, fourth, fifth, etc.) enlargement of time to serve

process “for cause shown” so long as the motion is “made before the expiration of the period

. . . as extended by a previous order.” Id. (emphasis added). Rule 6(b) provides that a trial

judge may grant an enlargement of time, not establish a separate period of time. Thus, Rule

4(h) actually requires a good-cause showing after the expiration of the 120-day period as



                                              6
enlarged by any court order pursuant to Rule 6(b), not just after “the expiration of 120 days.”

Contra Johnson, 982 So. 2d at 413. Therefore, we overrule Johnson v. Thomas ex rel.

Polatsidis, 982 So. 2d 405, 412 (Miss. 2008), to the extent that it requires a party to show

good cause instead of “ for cause shown” when a second motion for enlargement of time is

filed before the expiration of the time provided under the prior enlargement. This holding

is in conformity with a strict reading of the rules and their unambiguous language.

¶13.   While in Johnson the Court expressed concern about “successive extensions” granted

upon a “showing [of] ‘cause’ as long as the next motion for extension is filed before the

existing extension expires,” the Johnson Court erred by construing our rules in a manner that

effectively added language to Rule 6(b). Johnson, 982 So. 2d at 415. Though this concern

is understandable, the remedy is to define “for cause shown” or “cause.”

¶14.   To demonstrate “for cause shown” or “cause” to obtain an enlargement of time under

Rule 6(b)(1), a party must articulate a legitimate reason, made in good faith, as to why the

enlargement of time should be granted. While this may not rise to the level of Rule 4(h)’s

“good cause” standard, it requires something constituting diligence or a legitimate reason

excusing same. Collins, 184 So. 3d at 929-930 (quoting Webster v. Webster, 834 So. 2d 26,

28 (Miss. 2002)). This is not to say that continuous mistakes or inadvertence—while

possibly made in good faith—would continue to satisfy Rule 6(b)’s “for cause shown”

standard. Each case should be left to the discretion of the trial court so the judge can look

to the totality of the circumstances to determine if “cause” is being shown in light of all facts

and circumstances.



                                               7
¶15.   Under this definition, we are able to issue a decision in compliance with the strict

reading of Rule 6(b)(1) while, at the same time, ensuring that parties seek to perfect timely

service of process. Further, this holding will not lead to unending litigation. Plaintiffs will

be held to this “for cause shown” standard to obtain any enlargement of time, including the

initial enlargement. Likewise, defendants still can challenge whether “cause” was shown.

Also, a trial court’s determination of cause will be reviewed under an abuse-of-discretion

standard as with any other “fact-based finding.” See Collins, 184 So. 3d at 929.

¶16.   Because Jackson’s second enlargement of time was sought within the time permitted

by the first enlargement, only “cause” needed to be shown to obtain the enlargement of time.

Under the facts of this case, we find that Jackson articulated “cause” to obtain the second

enlargement of time to serve process. Jackson continuously sought to determine Fulgham’s

exact location, and she filed requests for enlargements of time within the required time

periods. Here, Fulgham was in prison, and the facts indicate that Jackson was misdirected

by the prison official’s statement that Fulgham would be brought back to Bolivar County.

Further, there are no allegations that Jackson’s failure to serve Fulgham within the original

120-day period or the first enlargement was in bad faith. As Jackson articulated legitimate

reasons, in good faith, for the delay in service of process, cause was shown here.

       B.     The trial court’s finding of “good cause” was not an abuse of
              discretion.

¶17.   We do not hesitate to apply retroactively our clarification of the law to this case, as

the trial court’s finding of “good cause” was also not an abuse of discretion. Because we




                                              8
find that good cause was shown, Fulgham is not prejudiced by the fact that Jackson has to

show only cause.

¶18.   “To establish ‘good cause’ the plaintiff 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.’” Collins, 184 So. 3d at 929–930

(quoting Webster v. Webster, 834 So. 2d 26, 28 (Miss. 2002)). Even more, good cause

requires a diligent effort on behalf of the plaintiff to effectuate service in a timely manner.

Id. at 930. “What amounts to ‘good cause’ under any particular set of circumstances is

necessarily fact-sensitive.” Id. (quoting Lindsey v. United States R.R. Bd., 101 F.3d 444, 446

(5th Cir. 1996)). Generally, good cause exists

       when 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.

Foss, 993 So. 2d at 379.

¶19.   Here, the trial judge did not abuse his discretion by finding good cause justifying the

second enlargement. Jackson timely sought enlargements of time to serve process and, as

shown below, did provide the trial judge with specific details concerning her attempts to

locate Fulgham. Based on the facts of this case and our deferential standard of review, we

cannot conclude that the trial judge erred.

¶20.   As shown in the complaint and summons, Jackson initially believed that Fulgham was

housed at the Bolivar County Correctional Facility. When Jackson’s counsel first called the



                                              9
prison to inquire into Fulgham’s whereabouts, a prison official told counsel that Fulgham had

been moved to Rankin County for processing—a temporary status. Then, in a later

conversation with the same official, counsel was advised that Fulgham had been moved to

Carroll County but would return in the near future to Bolivar County. At this time, Jackson

timely sought the first enlargement of time due to Fulgham’s movement in the prison system.

Counsel for Jackson then contacted the prison official again within the additional time

permitted under the first enlargement and, from this conversation, learned that Fulgham’s

return to Bolivar County was not imminent. Thereafter, because Fulgham had not been

returned to Bolivar County as the prison official previously had stated, Jackson filed for a

second, shorter, period of time to serve process. Jackson then timely served Fulgham within

the time permitted by the second enlargement.

¶21.   As noted above, good cause can be shown “when the failure [to serve process] is a

result of the conduct of a third person” and where a plaintiff is diligent in seeking to serve

process. Foss, 993 So. 2d at 379. These facts show that Jackson diligently inquired into

Fulgham’s whereabouts over the course of several months. Though Jackson did learn that

Fulgham would be in Carroll County for a period of time, she was not required to run out and

attempt service the next day, especially given that the defendant was incarcerated (and,

therefore, secure for future service) and she had been advised by proper officials that

Fulgham would return to Bolivar County shortly. Indeed, Jackson sought the second

enlargement only after she learned that Fulgham, in fact, would not be brought back to

Bolivar County in the near future.



                                             10
¶22.   We also find that the trial judge did not err by finding that Fulgham’s incarceration

created a mitigating circumstance. To be clear, incarceration, in and of itself, does not

constitute “good cause.” In fact, we have even adopted a specific rule regarding service of

process on persons in penal institutions. See Miss. R. Civ. P. 4(d)(3). But here, Fulgham’s

incarceration and movement through the prison system, coupled with the statements from the

Bolivar County prison official upon which Jackson relied, misdirected Jackson’s ability to

serve Fulgham. Further, the trial judge was in the best position to determine the difficulty

of locating Fulgham, serving him while he was in jail as well as the effects of the interactions

with the Bolivar County Jail officials.

¶23.   Finally, we note that Jackson sought her first enlargement of time within the 120-day

time period in Rule 4(h) and sought her second motion within the extra 120 days provided

by the first enlargement. See Montgomery, 910 So. 2d at 547-48 (“[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.”). Here, we find that Jackson demonstrated diligence in seeking to serve

process upon Fulgham. To find otherwise would be to second-guess the learned trial judge

as relates to several accepted grounds for a showing of “good cause” that support the plaintiff

in this case.

¶24.   Therefore, we find that good cause existed for Jackson’s delay in service of process.

Jackson was diligent by continuously and timely inquiring into Fulgham’s whereabouts.

Further, Jackson was misdirected by a third party. Jackson also filed timely motions for



                                              11
enlargements of time. Given our standard of review and the totality of the circumstances,

the trial court did not err in finding good cause for Jackson’s second enlargement of time.

                                     CONCLUSION

¶25.   For the reasons above, we affirm the trial judge’s decision to deny the motion to

dismiss. We remand this case to the trial court for further proceedings consistent with this

opinion.

¶26. AFFIRMED AND REMANDED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.




                                            12
