IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00347-COA WILLIAM KEVIN HADLEY APPELLANT

v. FEDEX GROUND PACKAGE SYSTEM INC. AND STEVEN OTTO APPELLEES

DATE OF JUDGMENT: 02/15/2018 TRIAL JUDGE: HON. JAMES McCLURE III COURT FROM W HICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JOE MORGAN W ILSON JERRY W ESLEY HISAW ATTORNEYS FOR APPELLEES: ROBERT A. BIGGS III CHARLES STEPHEN STACK JR. NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 04/30/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. TINDELL, J., FOR THE COURT: ¶1. On June 20 , 2 0 1 7 , S t e v e Otto (“Otto”) a nd FedEx Ground Package Sy stem Inc. (“FedEx”) f

i led a M o tion to D ism iss against W illiam Kevin Hadley (“Hadley ”) in t he DeSoto County Circuit Court, arguing that Hadley had f ailed to properly serve Otto and FedEx bef ore the s tatute o f lim itations expire d

. The circuit c ourt granted the m otion and dism issed Hadley ’s claim s f

or insuf f icient service o f p roces s . In his response to the def endants’

m otions, Hadley m o ved t o am end his com p laint to add J. D elivery Services, Otto’s actual

em ploy e r, as a def

e ndant. The circuit court denied this m otion as m oot. H adley now appeals this judgm ent, arguing t hat the circuit c ourt erred by not granting Hadley a 1 20-day extensionof tim e to perf ect service o f p rocess and by not granting H a d l e y l e a v e to am end his

com plaint. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. T h is case stem s f

rom a car accident t hat occurred on January 31, 2014 , w h e n O t t o rear-ended Hadley while driving a truck owned by FedEx. On January 3 1, 2017, Hadley f iled

a com plaint against FedEx and Otto in the circuit court exactly one day bef ore the statute of lim itations expired. ¶3. Hadley attem

pted to serve FedEx on its M ississippi r egistered agent, CT Corporation Sy stem , v ia certif

ied m ail. Af

t er m uch dif f iculty l ocating Otto, Hadley ’ s a t t o r n e y f iled a

m otion f or additional tim e to serve process one week bef ore the deadline to serve Otto would

e x p i r e. The m o tion was n e ver set f or a hearing, and n o order was entered gra n t i n g t h e motion. Hadley nonetheless attem pted to serve Otto b y publishing notice in t h e D e S o t o Times Tribune f

or three consecutive weeks beginning on June 20, 2017. ¶4. On July 2 0 , 2 0 1 7 , F e d E x a n d Otto f i led m otions to dism iss Hadley ’s com plaint, arguing that Hadley had f ailed to proper l y s e r v e t hem with process within t he 120-day deadline prior t o the expiration of the statute of lim itations. Hadley responded, again requesting an extension o f tim e to serve the parties along with a m otion f or leave to am end the com p laint to add J. Delivery Services, Otto’s a ctual em ploy er at the tim e of the accident, as a party to the action. ¶5. The circu i t c o u r t g ranted the d ef endants’ m otions to dism iss, f inding that Hadley f ailed to properly serve FedEx and Otto within t he 120-day d eadlines a n d f ailed to show

2good cause f or invalid servic e . The circuit court a lso d enied Hadley ’s m o tion f o r leave to

am end his com

p laint. Aggrieved, Hadley now appeals. STANDARD OF REVIEW ¶6. This Court reviews the grant o r denial of a m o tion to dism iss de novo. Blake n e y v. W arren County , 9 73 So. 2d 1037, 1039 (¶11) ( Miss. Ct. App

. 2 0 0 8 )

. A f inding of good

cause or excusable neglect i s usually lef t t o t h e d i s c r etion of the circuit court, unless such discretion is abused and r equires reversal. L ong v. Mem’l Hosp. at Gulfport , 969 So. 2d 35, 38 (¶5) (Miss. 2007). W here a circuit court applies interpretations of law in its analy sis, the
court reviews its determ i nation de novo. Id

. But, where t he c o urt applies f act-based f

indings in its determ ination of good cause or e xcusable neglect, the C ourt def ers t o the d iscretionary ruling of the circuit court and “whether there was substantial evidence suppo r t i n g the determ ination.” Rains v. Gardner , 731 So. 2d 1192, 1197 (¶18) (Miss. 1 999). “Motions f or leave t o am end com

plaint are lef

t to the sound di scretion of the trial court,” and t he Court

reverses o n l y w h ere a determ i nation of a b use of discretion i s f

ound. Moeller v. Am. Guarantee & Liab. Ins. Co. , 812 So. 2d 953, 961 (¶26) (Miss. 2002). ANALYSIS ¶7. A s a b a sic principle of pre-trial practice, p laintif f s are required t o serve def endants with a copy of the com

plaint and sum m ons within 1 20 d ay s of f iling the com

p laint in order
to ef f ectively put def

endants on notice of a pending lawsui t

. M

. R

. C

. P

. 4 (h). Filing a

c om plaint m arks the tolling of the statute of lim itations. W atters v
. Stripling , 675 So. 2 d 1242, 1244 (Miss. 1 996). If service o f process is not perf ected during that tim e period, the

3statute of lim itations begins to run at the end of that 120 day s. Owens v. Mai , 891 So. 2d

220, 223 (¶18) (Miss. 2005). W here a def endan t i s n o t properly served and the statute of lim itations e xpires, dism issal of the plaintif f ’ s c ase with prejudice is warranted. Stutts v. Miller , 37 So. 3d 1, 7 (¶17) (Miss. 2010).
I. FEDEX ¶8. In t his case, FedEx w ould be properly served with process as a corporation by delivery of the sum m ons and c om plaint to an of

f icer, m anaging a g e n t , g e n eral a gent, or any other agent authorized to receive process. M.R.C.P. 4(c)(4). But as H adley adm its in his brief , the only a t tem

pt to s erve FedEx was via certif ied m a il on its registered agent (CT Corporation Sy stem ), located in Flowood, Mississippi. C ertif ied m a il m a y be used to s erve p rocess upon persons “outside this state.” Tri p l e C Transp. Inc. v. Dickens , 870 So. 2d 1195, 1198-99 (¶21) (Miss. 2004) (citing M.R.C.P. 4(c)(5)). The Advisory Com m itte e N o te to that rule provides that “[ c]ertif

ied m ail service is

. . . lim ited to persons outside the state.” M.R.A.P. 4, adviso r y c o mmittee note. Rule 4(d)(4) m akes no distinction f or service between a dom estic or f

oreign corporation. So lon g a s t h e f oreign corporation does b usiness in Mississippi, service of process is proper by delivery to its registered agent f or s e rvice of
process. M iss. Code Ann. § 1 3 -3-57 (Rev. 2012). Theref ore, Hadley did not properly serve FedEx within the 120-day deadline. ¶9. Hadle y a r g u e s that good-f aith negotiations coupled with his attorney ’s belief that service of process was n o t an issue entitled him to a good-cause extension by the circuit
court. A plaintif

f m ust serve def

endants with process with the 1 20-day tim e f ram e or show

4good cause as to w hy service was not m ade. W atters , 675 So. 2d at 1243. Good cause can be established when t he plaintif f dem onstrates “at least as m uc h a s w o u l d b e required to show excusable neglect, as to which sim ple inadvertence or m i stake of counsel o r ignorance of the r ules usually does not suf f ice.” Peters v
. United States , 9 F

. 3 d 344, 345 (5th Cir. 1993). W here f

a ilure of s ervice is the result of a t hird party ’s conduct, evasion of service or

m isleading conduct by the d ef enda n t, or understandable m itigating circum s tances, good

cause m ay som etim es (but not alway s) be f ound. See Bloodgood v. Leatherwood , 25 So. 3d
1 0 4 7 , 1 0 5 1-52 (¶20) (Miss. 2010); Holmes v. Coast Transit Auth ., 8 15 S o. 2d 1183, 118 6 (¶12) (Miss. 2002). ¶10. Here, there is n o evidence that FedEx attem pted to evade process or m islead Hadley

. The f acts, as provided by both parties, r e f l e c t t h a t Hadley w aited until the day bef ore his
statute of lim itations expired to f ile his com

plaint, thereby narrowing his own window f or ef f ective service of

process. The f

act that h is counsel m istakenly believed that “service of
process was not an issue” is irrelevant absent som e pro o f o f im proper representations by FedEx. “A plaintif

f m u st be diligent in serving process if he is to show good cause in f ailing
to serve process within 120 day s.” In re H oltzman , 823 So. 2d 1180, 1 1 8 4 ( ¶ 1 1 ) ( Miss. 2002) ( c i t i n g Bang v. P ittman , 749 So. 2d 47, 5 2 (¶25) (Miss. 1 999)). In Holtzman , the Mississippi Suprem e C ourt h e l d t h at a sim ple m istake by plaintif

f ’s counsel, such as

m isf iling a sum m ons, did not warrant an extension f or good caus e w here process was not served within 120 day s. Id. In t his case, the f act that plaintif

f ’ s c ounsel m istakenly believed that a ny s ervice of process issues were taken care of does not waive the d

uty to ensure that

5all parties are served properly

.

¶11. Reliance o n settlem ent negotiations i s also an i nsuf f icient basis t o e s t a b lish good

cause f or an ex t e n s i o n o f t i me to serve process. Holmes , 815 So. 2d at 1186-87 (¶11). In Holmes , the plaintif

f f ailed to properly serve a governm ental entity within the 120-day t im e f ram e d ue to the m istaken belief by plaintif f ’s counsel that the d e f

endant had accepted service. Id

. at 1184 (¶4). W h e n the circuit court dism issed the c a se, the plaintif f argued on appeal that the def

endant m istakenly led counsel to believe service of process was accepted

a n d t h at settlem ent negotiations were ongoing. Id

. at 1186 (¶10). The Court rejected this
argum ent and f

ound that “[ r ]eliance on indef inite good f

a ith negotiations c learly subverts the
purpose of Rule 4(h), which is to bring claim s t o a c o u r t f or judicial review in a tim ely

m anner.” Id

. at 1187 (¶14). The r ationale of the Holmes Court was not to punish plaintif f s who diligently seek to serve process bu t t o encourage parties to engage in settlem ent negotiations while properly and tim ely giving plaintif f s their day in court. Id

. Hadley ’s case, while dealing with a corporation rather than a governm ental entity , is neverthele s s sim ilar in c ircum stances and w arrants the sam e result. Neither m istake of coun s e l n o r o n going settlem ent negotiations relieves a plaintif f f r om adhering to service-of

-process rules. ¶12. Finally , Hadley argues that FedEx potentially waived its service of p rocess def enses “based upon the f

acts o f this case.” But the wa i v e r o f af f irm a tive def

enses occurs where there is substantial and unreasonable delay plus active participation in litigation. Estate of Puckett v
. Clement , 238 S o. 3 d 1139, 1145 (¶10) (Miss. 2018). Here, FedEx f i led its answer less than one m onth af

ter Hadley ’s im

proper service, asserted its im proper service o f process

6def

enses, and then f

iled i ts Motion to Dism iss b ased upon the f a i lure to properly serve within

one m onth of f

iling its a nswer. S uch conduct does not c onstitute a waiver under Mississippi law. ¶13. The c ircuit court f

o und t hat ongoing settlem ent negotiations and a m istaken belief that service of process was not an issue f ailed to establish good cause f or an extension of tim e to

ser v e FedEx. W e f

i nd no abuse of discretion with the circuit court’s decision to deny Hadley ’s m otion and dism iss the case.
II. OTTO ¶14. Hadley also contends t hat the circuit court com m itted e rror b y dism issing his claim s against Otto f

or f a ilure to serve process. Otto, as an individual, cou l d b e s t b e s e r ved with
process through personal delivery of the sum m ons and com plaint. M.R.C.P. 4(d)(1)(A). If , af ter reasonable diligence, the def e ndant cannot b e served p ersonally , a co p y o f t he com plaint and s um m ons can b e m ade “at the def end a n t’s usual place of abode with t he def endant’s
spouse or som e other person of the def e ndant’s f am ily a b ove the age of sixteen y ears who is willing to receive service” and by f irst-class m ail to t he s am e address thereaf ter. M.R.C.P. 4(d)(1)(B). Additionally , Otto could have been properly served by f i rst-class m ail along with
two c opies o f a notice a nd acknowledgm ent and return envelope. M.R.C.P. 4(c)(3). If the def endant does n ot re t u r n t h e acknowledgm ent back to the sender under this rule, process

m ay be served using another proper m ethod. Id

. Finally , where a def endant is a nonresident of the s tate or, af

ter proof o f diligent inquiry , the def endant i s determ ined to be absent within the state, service by

publication m ay

be proper. M.R.C.P. 4(c)(4)(A).

7¶15. In his brief , Hadley s tates t h a t t h e r e w e r e d if f iculties locating Otto due to address changes and alleged dom estic- violence issues. But there is no indication that Hadley
attem pted perso n a l service o r service by m ail to any o f Otto’s listed addresses. Hadley ’s counsel then f

iled a m otion f

or additional tim e to serve process upon Otto approxim ately one week bef ore the 120-day deadline expired. However, he did not set the m otion f or hearing

or obtain a ruling on the m otion. Hadley uses this m otion to argue t hat he need o nly show “cause” rather than “good c ause” to warrant an extension. See Cross Creek P rod. v. Scafidi , 911 So. 3d 958, 960 (¶¶5-6) (Miss. 2005). The Mississippi Su p r e me C o u rt has held, however , t h a t “ a party m a king a m otion m u st ‘f ollow u p that action by bringing it to the attention of the judge a nd by requesting a hearing upon it.’ It ‘is the r e s p o n s i b i l ity of the

mo v ant to obtain a r

uling f rom the court on m o tions f iled by h im , and f

ailure t o d o s o constitutes a w aiver of sam e.’” Billiot v. State , 454 So. 2d 445, 456 ( M i s s. 1984) (citing Sharplin v. S

tate , 357 S o. 2 d 9 40, 942 (Miss. 1978) )

. B y f ailing to set h is o riginal m otion f or hearing or obtain an order, Hadley waived that m otion. ¶16. Following the m otion, Hadley ’s only a t tem p t to serve Otto was by publication in the DeSoto T imes Tribune

. Rule 4(c)(4)(A) allows f or s ervice by publication where a def endant is “a n o n r e s i d ent o f this state or not be f ound therein on diligent inquiry

. ” M.R.C.P. 4(c)(4)(A). Service by publication in lieu of personal service i s proper o nly af ter a showing of diligent inquiry proves that the plaintif f is unable t o serve t he def endant p ersonally within the s tate. Page v. Crawford , 883 So. 2d 609, 6 1 1

- 1 2 (¶¶10-11) (Miss. C t. App. 2004), overruled on other grounds by E. Mississippi State Hosp. v. Adams , 947 So. 2 d 887, 891

8( ¶ 1 2 ) ( Miss. 2 007). Further, w hen a plaintif f requests s ervice by publication, the plaintif f

mu s t f i le a sworn com

plaint, petition, or af

f idavit with the post o f

f ice a d dress o f t h e def endant unless af

ter diligen t inquiry , the post o f f ice address is unknown. M.R.C.P 4(c)(4)(A). The rules regarding service by publication m ust be s trictly observed. Caldwell

v. Caldwell , 533 So. 2d 413, 4 15-16 (Miss. 1988). If the p laintif f f ails to m e et these “diligent inquiry ” requirem ents, this m a y result in the Court f inding im proper service of process. Id

. Such a showing of diligent inquiry constitutes good f

aith to the court and the law in which these requirem ents were f ounded. Id

. ¶17. Hadley acknowledged “dif f iculties” in locating O tto in his brief , including potential address changes and dom estic violence issues. But Hadley n ever i ndicated that he ma d e diligent ef

f orts to personally serve Otto or use other m eans of s ervice. Further, Hadley did
not f i le a sworn com

plaint, af f idavit, or petition including Otto’s post of f ice address or proof that, af t er diligent inquiry , Otto could not be located. Again, the rules require such proof by docum entation i n order to properly serve Otto by publication. See Townsend v. W hat a Combo Inc ., No. 2 017-CA-01168-COA, 2 019 W L 125878, at *2 ( ¶10) (Miss. Ct. A pp. Jan. 8, 2019) ( f

inding i nsuf

f icient service by publication where an a f f i davit was f

iled b ut did not

com ply with Rule 4 (c)(4)(A)). Because Hadley only attem p ted to serve Otto b y p ublication and f ailed to do so in com

pliance with Rule 4 (c)(4)(A), the Court f inds t hat Otto was never properly served. ¶18. Hadley f

i le d h i s s e c o n d mo t ion f

or an extension along with his response to Otto’s

m otion t o dism i ss, arguing, as h e d o es in his brief , that good c ause existed to warrant an

9extension. W here a plaintif f has not proven diligence in attem pting to serve t he def

endant, the Court will not f

ind good c ause f

or extension. Estate of

Puckett , 238 So. 3d at 1148 (¶25). Based upon the f

acts b ef ore this Court, we disagree with Hadley that good cause was shown in his ef f orts to serve Otto. Because the statute o f lim itations ran bef ore Otto w as properly served, the circuit court acted within its discretion to dism iss the case.
III. J. DELIVERY SERVICES ¶19. Finally , Hadley contends t hat the circuit court e r r e d w h e n i t d e n i e d his m otion to

am end the com

plaint to add J. Delivery Services, an independent contractor f o r FedEx that

was Otto’s actual em

ploy er. “A p arty m ay a me n d a p l e a d ing as a m atter of course at any tim e bef ore a responsive pleading is served,

. . . [ o]therwise a party m ay am end a pleading only by leave o f court o r upon w ritten c o n s ent of the adverse party

. . . .” M.R.C.P. 15(a).
Am endm ents should be f

reely given unless the proposed am endm ent would s till r ender the claim f utile. Jones v. Lovett , 755 So. 2d 1243, 1247 (¶8) (Miss. Ct. App. 2000). ¶20. Here, Hadley f

i led his original com

plaint one day bef

o re t he statute of lim i tations ran. 1 Thus, the f

iling of the com

p laint tolled that one-day lim itations period f or 12 0 day s f

or service of process. T he circuit f o und that Hadley f

ailed to properl y s e r v e b o t h Otto and FedEx within the 120-day deadline, allowing the one-day statute o f lim i tations tim e period
to run, a n d the court dism issed the original com p laint a s tim e-barred. Rule 15 allows f or the

am endm ent of a c om

plaint e ither during the lim i tations tim e p e r i o d o r af ter the statute of lim itations has run, so long as that am ended com plaint relates back to the original c om plaint.

1 T h e th ree-y ear statu te o f l im itatio n s is ap p licab le in th i s case. S ee M iss. C o d e A n n . § 1 5 -1 -4 9 (1 9 9 0 ). 1 0M.R.C.P. 15. The requirem en t s o f R u l e 1 5(c) “m ust be f ulf illed bef o re the statute of lim itations has r

un or w ithin 1 2 0 d a y s o f the f iling of the original com

plaint.” Brown v. W inn-Dixie Montgomery Inc ., 669 So. 2d 92, 94 (Miss. 1996) ( citing Schiavone v. Fortune , 477 U.S. 21 (1986)). Because Hadley f ailed to properly serve Otto and FedEx, thereby dism issing the original com plaint as tim e-barred, this Court agrees with the circuit court that the m otion f

or leave to a m e nd t he com plaint was m oot. As such, the circuit court was within its discretion to deny

Hadley ’s m otion f

or leave to am end the com plaint. CONCLUSION ¶21. Hadley

f iled this l awsuit one day bef ore the statute of

lim itations expired. As such, the statute of lim itations p eriod was only tolled f o r 120 d ay s unless an extension was properly
g r a n t ed. Hadley f

a iled t o obtain a ruling on his prior m otion f or extension and f

a i l e d t o dem onstrate good cause f

or extension bef

ore the circuit court on his second untim ely m otion. Neither FedEx nor O tto were ef f ectively served w i th p rocess bef ore the statute o f lim itations

e x p i r e d , and theref

ore the claim s against them were properly dism issed. Furtherm ore, the circuit court was within its discretion to deny Hadley ’ s m otion f or l eave to am end the

com plaint because t he dism issal o f th e o r i ginal com p laint r endered the am endm ent f utile. For the f o regoing reasons, we af

f irm the circuit court’s judgm ent. ¶22. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LA W R E N C E, McCARTY AND C. W ILSON, JJ., CONCUR.

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