                            IN THE SUPREME COURT OF MISSISSIPPI

                                        NO. 2001-CA-00570-SCT

CHARLES R. WEBSTER, JR.
v.
JEAN LALA WEBSTER

DATE OF JUDGMENT:                                3/13/2001
TRIAL JUDGE:                                     HON. J. N. RANDALL, JR.
COURT FROM WHICH APPEALED:                       HANCOCK COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                          CLEMENT S. BENVENUTTI
ATTORNEY FOR APPELLEE:                           WILLIAM W. DREHER, JR.
NATURE OF THE CASE:                              CIVIL - OTHER
DISPOSITION:                                     REVERSED AND RENDERED - 10/17/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      WALLER, JUSTICE, FOR THE COURT:

¶1. This appeal presents the issue of what is considered to be "good cause" for failure to serve process
within 120 days. We find that the plaintiff did not show good cause for failure to effect service of process
within 120 days under Mississippi Rule of Civil Procedure 4(h)(1) and that the chancellor abused his
discretion by failing to dismiss the complaint.

                               FACTS AND PROCEDURAL HISTORY

¶2. Jean Lala Webster filed a complaint of divorce in the Chancery Court of Hancock County against
Charles R. Webster, Jr., alleging that he had deserted her by leaving the marital home, emptying the joint
checking account, allowing the marital home to be foreclosed upon, her automobile to be repossessed, and
the household goods to be auctioned off, dropping her from his health insurance, and leaving the state. She
also alleged that even though Charles had obtained a divorce decree against her in Texas, she had never
been a resident of Texas and Texas did not have personal jurisdiction over her.

¶3. Jean's complaint for divorce was filed on October 5, 1999, and, on that same date, summons was
issued to Jean's attorney. Service on Charles by certified mail was attempted three times in October of
1999, but was returned marked "unclaimed." The address on the certified envelope was that of 537
Pritchett Road, Red Oak, Texas, the residence of Charles's father. On February 8, 2000, a motion to allow
out of time service was filed and granted. The motion stated that Charles had intentionally avoided service
of process, but there was no affidavit attached to the motion to support this allegation. Based upon this
motion, the chancery court specifically found that good cause existed for failure to serve process in
accordance with Rule 4(h). One hundred twenty additional days were granted to Jean for service of
process. In an attempt to locate Charles, on February 29, 2000, a subpoena directed to Charles's
employer, Southern Towing, was issued to Jean's attorney. On June 21, 2000, outside the 120-day
extension given by the chancery court, an amended complaint was filed and summons issued. Charles was
served by certified mail on July 3, 2000, at the address shown on the Texas divorce decree. Charles moved
to dismiss Jean's complaint for divorce for failure to comply with Rule 4(h). A hearing was held in which
testimony was given pertaining to Charles's attempts to avoid process. The chancery court specifically found
that Charles had intentionally avoided service of process of Jean's complaint for divorce and that these acts
constituted good cause to excuse Jean's failure to serve him with process within 120 days pursuant to
M.R.C.P. 4(h). The chancery court ordered that Charles pay alimony to Jean in the amount of $2,000 per
month, that Jean have ownership of all personal property in her possession, that Charles give Jean one-half
of an IRA, and that Charles pay all costs of court and attorney's fees.(2)

                                               DISCUSSION

      I. WHETHER JEAN'S COMPLAINT FOR DIVORCE SHOULD HAVE BEEN
      DISMISSED FOR FAILURE TO COMPLY WITH M.R.C.P. 4(h).

¶4. Mississippi Rule of Civil Procedure 4(h) mandates that a complaint be dismissed if service of process is
not effected within 120 days of the filing of the complaint and good cause cannot be shown for failure to do
so. The rule has been interpreted to provide that "a plaintiff must serve a defendant with process within 120
days or show good cause why service was not made." Watters v. Stripling, 675 So. 2d 1242, 1243
(Miss. 1996) (emphasis added). The rule has also been interpreted to require that, if the defendant is not
served within 120 days, the plaintiff must either refile the complaint before the statute of limitations ends or
show good cause; otherwise, dismissal is proper. Id. at 1244. "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.'" Peters v. United
States, 9 F.3d 344, 345 (5th Cir. 1993) (quoting Systems Signs Supplies v. U. S. Dep't of Justice,
903 F.2d 1011, 1013 (5th Cir. 1990) (cited favorably in Bang v. Pittman, 749 So. 2d 47, 51 (Miss.
1999), and Watters, 675 So. 2d at 1243).

¶5. A determination of good cause is a discretionary ruling by 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. Bang, 749 So. 2d at 51; Rains v. Gardner, 731 So. 2d 1192, 1197 (Miss.
1999).

¶6. The chronology of events in the case sub judice is as follows:
     DATE         ACTION
     June 1, 1998 Charles vacates marital domicile

     June 28,       Charles's complaint for divorce (showing Cedar Hill address) filed in Texas
     1999
     October 5,     Jean's complaint for divorce filed in Mississippi
     1999
                    Jean served with Charles's complaint for divorce
     October 19,
     1999
     October,      Three attempts made to serve Charles with process at Red Oak address
     1999
     February 2, First 120-day period elapses
     2000
                   Motion for additional time in which to serve Charles filed
     February 8,
     2000
     February 8, Order granting motion for additional time entered, allowing 120 additional days in
     2000          which to effect service of process
     February 29, Subpoena issued to Charles's employer
     2000
     April 4, 2000 Divorce, Dallas County, Texas
     June 7, 2000 Second 120-day period elapses

     June 21,       Amended complaint filed
     2000
     July 3, 2000   Service of process of amended complaint on Charles at Cedar Hill address
     October 30,    Hancock County, Mississippi, judgment on alimony, one-half (1/2) of IRA, court
     2000           costs, attorney fees, and the award of personal property in Jean's possession
     March 20,      Judgment denying M.R.C.P. 60 motion filed by Charles
     2001

¶7. Citing Collom v. Senholtz, 767 So. 2d 215 (Miss. Ct. App. 2000), Charles contends that, under
Mississippi law, a motion for additional time in which to effect service of process which is filed after the
120-day period has elapsed will be denied and the complaint will be dismissed under Rule 4(h). A close
reading of Collom, however, shows that motions for additional time in which to effect service of process
were not addressed by the Court of Appeals.

¶8. Rule 4(h) does not require that a motion for additional time for service of process be filed within 120
days of the filing of the complaint. Arkansas and New York's rules of civil procedure mandate that a motion
for additional time be filed within the 120-day period. See, e.g., Weymouth v. Chism, 55 S.W.3d 307
(Ark. 2001); Norstar Bank of Upstate New York v. Wittbrodt, 594 N.Y.S.2d 115 (N.Y. Sup. Ct.
1993). Arkansas's counterpart to Rule 4(h) specifically provides, "If a motion to extend is made within 120
days of the filing of the suit, the time for service may be extended by the court upon a showing of good
cause." Ark. R. Civ. P. 4(i). New York's rule is similar. Therefore, if the drafters of our rules of civil
procedure wished to require that motions for additional time in which to serve process be filed within the
120 days, they could have done so.

¶9. Jean did not file her motion for additional time until after 120 days after the filing of the complaint had
elapsed. Even though Jean finally did effect service of process on Charles on July 3, 2000, this date was
outside the second 120-day period granted by the chancery court, and Jean never filed a second motion for
additional time within the second 120-day period or after the second 120-day period had elapsed.(3)

¶10. Our rule states that if the 120-day period has elapsed without effecting service of process, "the action
shall be dismissed . . . upon the court's own initiative with notice to such party or upon motion." M.R.C.P.
4(h). The comments state that the complaint will be dismissed "unless good cause can be shown as to why
service could not be made." The rule therefore provides that the plaintiff will have an opportunity to
show good cause after the 120-day period has elapsed. Why else does Rule 4(h) require that notice be
given to the plaintiff before the court can dismiss the complaint? The requirement of notice being given
contemplates a response to the notice. A motion for additional time(4) is an appropriate response to the
notice.

¶11. Although we hold that a motion for additional time may be filed after the 120-day time period has
expired, a diligent plaintiff should file such a motion within the 120-day time period. Such diligence would
support an allegation that good cause exists for failure to serve process timely. Indeed, in Moore v. Boyd,
799 So. 2d 133 (Miss. Ct. App. 2001), the Court of Appeals found that excusable neglect is a "very strict
standard" and the plaintiff should have filed a motion for additional time within 120 days of filing the
complaint.

¶12. At a hearing on Charles's motion to dismiss, testimony was given as to why service was not timely
made. The chancellor found that Jean had shown good cause for failure to serve process in a timely manner
because Charles avoided service. The record does not support this finding. Jean had Charles's correct
address in Cedar Hill, Texas, all along -- the correct Cedar Hill address was noted in the first sentence of
Charles's petition for divorce, with which she was served in October of 1999. Jean's only attempts to serve
Charles were at the residence of Charles's father in Red Oak, Texas. These attempts were made during the
first 120-day period. The only action Jean took during the second 120-day period was to issue a subpoena
to Charles's employer. Attempts to serve someone at an incorrect address when in possession of the
correct address and one solitary action during a four-month period of time (issuing a subpoena) does not
constitute diligence; and therefore, Jean did not show good cause for failing to serve Charles timely.

                                              CONCLUSION

¶13. Because Jean did not show good cause for failing to serve Charles, the chancellor erred in denying
Charles's motion to dismiss Jean's complaint for divorce. Therefore, we reverse the chancery court's
judgment, and we render judgment dismissing Jean's complaint and this civil action without prejudice for
failure to comply with M.R.C.P. 4(h).

¶14. REVERSED AND RENDERED.

      McRAE AND SMITH, P.JJ., EASLEY AND CARLSON, JJ., CONCUR. PITTMAN, C.J.,
      DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY COBB, DIAZ AND
      GRAVES, JJ.
      PITTMAN, CHIEF JUSTICE, DISSENTING:

¶15. I disagree with the majority's decision to reverse and render this case. Therefore, I must respectfully
dissent. Rule 4(h) of the Mississippi Rules of Civil Procedure 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 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). The determination of whether "good cause" exists is a "discretionary
ruling on the part of the trial court and entitled to deferential review of whether the trial court abused its
discretion and whether there was substantial evidence supporting the determination." LeBlanc v. Allstate
Ins. Co., 809 So. 2d 674, 676 (Miss. 2002) (quoting Rains v. Gardner, 731 So.2d 1192, 1196
(Miss.1999)).

¶16. The chancellor took into account the italicized portion of this rule in his opinion when he discussed the
law on Charles Webster's motion for relief from judgment. The opinion stated with no uncertainty that the
facts here are distinguished from other cases which have been dismissed for lack of service of process
because the chancellor found that good cause existed for lack of service:

      Our case is easily distinguishable, for our Court properly found that Charles' avoidance tactics, with
      the help of his family, friends and employer, was in fact a showing of good cause for the delay.
      Without wasting any more time on the point, the first prong of the attack [on the judgment] is devoid
      of merit.

¶17. As the chancellor noted, the plain text of the rule does not automatically dismiss complaints which have
not been served within 120 days. Furthermore, there is evidence in the record that Jean Webster diligently,
although with admittedly poor direction, sought to serve Charles with divorce papers. Since the chancellor
found that good cause existed why Jean was incapable of serving process, namely the efforts by Charles
and his family to avoid process, the case properly remained active when service was finally completed upon
him. Therefore, I would uphold the chancellor's ruling that good cause existed to avoid dismissal of the
complaint in this case.

¶18. An uncontested divorce does not require the presence of the defendant, only proof of the grounds for
divorce. See Miss. Code Ann. § 93-5-7 (1994); Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (Miss.
2002). There is no statute of limitations for divorce decrees. Rule 4(h), according to its own terms, was
designed so that a trial court may maintain control of its docket by dismissing stagnant complaints without
notice, and thereby ensure timely service by the parties. As a practical matter, the majority today
unnecessarily imposes the costs of relitigation of these issues upon Jean Webster after a full and uncontested
hearing on this matter has been conducted. All she must do now is simply refile her complaint and face,
once again, the screens and dodges of the man who was once her husband. If service can ever be made
again, perhaps she will still be the only party interested in presenting evidence to the chancellor as proof for
the divorce. In my opinion, this second trial and all the expense associated with it are not the results this
Court should now reach. I would affirm the chancellor's decision as it was not an abuse of discretion.
     COBB, DIAZ AND GRAVES, JJ., JOIN THIS OPINION.

1. M..R.C.P. 4(h) provides that "[i]f 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."

2. Charles filed a motion for relief from judgment in which he raised issues of full faith and credit and res
judicata. We will not address these issues because we find that Jean did not show good cause for failure to
serve timely the complaint and that the complaint should be dismissed.

3. The filing of an amended complaint does not give a plaintiff an additional 120 days in which to effect
service of process. Watters, 675 So. 2d at 1243.

4. Such a motion should be supported by evidence (in the form of affidavits or documents) upon which a
court can make a determination of whether good cause exists for failing to serve process in a timely manner.
Bang, 749 So. 2d at 52.
