IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CA-01551-SCT

IRA BANG, SR.

v.

JOHN S. PITTMAN, D. D. S.

DATE OF JUDGMENT: 06/12/1997

TRIAL JUDGE: HON. KATHY KING JACKSON

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: ROBERT G. GERMANY

ATTORNEYS FOR APPELLEE: JOE R. COLINGO

STEPHEN WALKER BURROW

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE

DISPOSITION: AFFIRMED - 9/9/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/21/99

EN BANC.

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. This is an appeal from orders of the Circuit Court of Jackson County, Mississippi, which (1) dismissed

this civil action without prejudice because Bang failed to show good cause for his failure to serve the

defendant with the summons and complaint within 120 days of the filing of the complaint as required by

M.R.C.P. 4(h) and (2) refused to set aside that dismissal under M.R.C.P. 59(e). A complaint alleging

medical malpractice was filed by Ira Bang, Sr., (hereinafter "Bang") and his wife, Anna Bang, against

Singing River Hospital and John S. Pittman, D.D.S. (hereinafter "Pittman"), on October 25, 1996. Anna

Bang was dismissed as a plaintiff. A motion for additional time to serve process was filed on February 21,

1997. On February 25, 1997, a notice of dismissal as to Singing River Hospital was filed.

¶2. Pittman filed a motion to dismiss and objection to the motion for additional time to serve process on

March 4, 1997. The trial court entered its order dismissing this action without prejudice on June 12, 1997,

finding that Bang had failed to obtain an order prior to the expiration of the 120 days to show cause why

additional time was needed to serve Pittman. The trial court also found that Bang failed to serve Pittman
during the 120 day period from the filing of the complaint and that Bang had failed to provide the court with

good cause for the failure to serve Pittman timely.

¶3. Bang filed a motion to set aside the order of dismissal on June 19, 1997. Bang also filed an affidavit in

support of his motion for additional time to serve process, allegedly showing good cause why Pittman was

not served within the 120 day period. Pittman filed a response to the motion on July 3, 1997.

¶4. The trial court denied Bang's motion to set aside the order of dismissal on October 30, 1997. Bang

appealed to this Court on November 26, 1997. Finding no abuse of discretion by the circuit court, we

affirm.

STATEMENT OF FACTS

¶5. On October 25, 1996, Bang filed a complaint against Singing River Hospital and Pittman alleging

medical malpractice. Bang alleged that Pittman was negligent in his examination, treatment, and care of

Bang and that Singing River Hospital, through its employees, was negligent in the examination, treatment and

care of Bang. Anna Bang also sued, alleging loss of consortium arising from the injuries sustained by Bang.

¶6. On February 21, 1997, Howard Butler (hereinafter "Butler"), Bang's process server, attempted to serve

process on Pittman. In an affidavit filed with the trial court, Butler outlined the events that occurred that day.

Butler called Pittman's office for the purpose of serving the summons and complaint. Butler was told

Pittman was out of the office. Butler then went to Pittman's home, where no one answered the door. As

Butler was leaving, a car pulled into the driveway of the Pittman home. Butler returned to the house and

talked to Mrs. Pittman who offered to accept the summons and complaint. Butler refused to serve Mrs.

Pittman, saying he needed to talk to Bang's lawyer first.

¶7. Bang's lawyer advised Butler to serve the summons and complaint on Mrs. Pittman. However, when

Butler returned to the Pittman home, Mrs. Pittman refused to accept the summons and complaint.

¶8. Butler then called Pittman's office, where an unidentified woman told him that both Pittman and his wife

were in Mobile, Alabama. Butler knew this was untrue because he had just talked to Mrs. Pittman. Butler

later asked Steve Sutherland to serve Pittman.

¶9. On February 21, 1997, Bang filed a motion for additional time to serve process. In his motion Bang

alleged that Pittman was evading service of process based on the conflicting reports Butler received from

Pittman's office and Mrs. Pittman. Bang also stated that an affidavit supporting these allegations would be

filed with the court prior to any hearing on the motion. However, this affidavit was not filed until June 19,

1997, well after the hearing on Pittman's motion to dismiss and after the lower court entered an order

dismissing the complaint.

¶10. On February 25, 1997, Bang voluntarily dismissed Singing River Hospital as a party to the suit.

Pittman was finally served with process on February 27, 1997, 122 days after the complaint was originally

filed.

¶11. Pittman filed a motion to dismiss the case on March 4, 1997. His basis was the fact that the summons

and complaint had been served 122 days after the filing of the complaint in direct contravention to M.R.C.P

4(h). In the alternative, Pittman objected to Bang's motion for additional time to serve process, stating that

Bang had sufficient time to serve the complaint and failed to do so without good cause.
¶12. Pittman noticed Bang that the hearing on his complaint would be held on March 13, 1997. Bang was

renoticed that the hearing had been moved to March 27, 1997, then to April 10, 1997, then to May 1,

1997, and then to May 2, 1997. At no time before the hearing did Bang follow through with the language of

his motion for additional time to serve and present the affidavit he had promised.

¶13. On June 12, 1997, the lower court entered its order dismissing the cause without prejudice. The court

specifically found that Bang "failed to obtain an Order prior to the expiration of 120 days to show cause

why they needed additional time to serve Defendant, failed to serve Defendant within 120 days from the

date the Complaint was filed, and further did not provide the Court with good cause for the failure to serve

Defendant within the prescribed 120 day period. . . ."

¶14. Bang filed a motion to set aside the order of dismissal pursuant to M.R.C.P. 59 on June 19, 1997. At

the same time, Bang filed the affidavit from Butler in support of his motion for additional time to serve

process. Pittman filed a response to the motion on July 3, 1997. The lower court denied Bang's motion on

October 30, 1997. From this denial, Bang appeals to this Court.

STATEMENT OF ISSUES

I. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN

DISMISSING BANG'S CASE WHEN IT FOUND THAT BANG HAD

FAILED TO ESTABLISH GOOD CAUSE FOR HIS FAILURE TO

SERVE PITTMAN WITHIN THE 120 DAY PERIOD PRESCRIBED BY

M.R.C.P. 4(h).

II. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN REFUSING TO

SET ASIDE ITS JUNE 12, 1997, ORDER OF DISMISSAL BECAUSE BANG FAILED

TO SATISFY ANY GROUND FOR RELIEF UNDER M.R.C.P. 59.

DISCUSSION OF LAW

I. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN

DISMISSING BANG'S CASE WHEN IT FOUND THAT BANG HAD

FAILED TO ESTABLISH GOOD CAUSE FOR HIS FAILURE TO

SERVE PITTMAN WITHIN THE 120 DAY PERIOD PRESCRIBED BY

M.R.C.P. 4(h).

II. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN

REFUSING TO SET ASIDE ITS JUNE 12, 1997, ORDER OF

DISMISSAL BECAUSE BANG FAILED TO SATISFY ANY GROUND

FOR RELIEF UNDER M.R.C.P. 59.

¶15. Because the analysis under Issue I will also be applicable to Issue II, these will be discussed together.

¶16. Bang alleges that the lower court erred in dismissing his case based upon his failure to serve Pittman

within the time designated under M.R.C.P. 4(h) and his failure to show good cause why he did not serve
Pittman during the prescribed 120 day period.

¶17. Rule 4(h) of the Mississippi Rules of Civil Procedure states:

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.

Rule 4(h) required Bang to serve Pittman with process within 120 days from the filing of the original

complaint. Watters v. Stripling, 675 So.2d 1242, 1243 (Miss. 1996). Upon his own admission, Bang did

not serve Pittman until 122 days after the complaint was filed. However, Bang did file a motion for

additional time to serve process before the expiration of the 120 day period. Because of the failure to serve

Pittman within the 120 days, Bang was required to show good cause why Pittman was not timely served.

Watters, 675 So.2d at 1243.

¶18. A determination of what constitutes "good cause" is a discretionary ruling to be made by the trial court.

Rains v. Gardner, 731 So.2d 1192, 1197 (Miss. 1999). Review of such a ruling by the trial court is

limited to an abuse of discretion and substantial evidence standard. Id.

¶19. This Court has stated that "[t]o 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.'" Watters, 675 So.2d at 1243 (quoting Peters v. United

States, 9 F.3d 344, 345 (5th Cir. 1993) (citations omitted)).

¶20. Bang asserts that the lower court erred in not finding good cause because it was obvious from the

events that Pittman and his wife were avoiding service of process. Because no transcript of the hearing on

Pittman's motion to dismiss was provided to this Court, we are limited to a review of the facts that can be

gleaned from the record before us. The complaint was filed on October 25, 1996. The summons was

issued by the circuit clerk on October 29, 1996, and returned to Bang's attorney. Nowhere in the record is

there any mention of attempted service on Pittman before February 21, 1997.

¶21. Bang first attempted to serve Pittman at his office. He placed a call to Pittman's office and was told

that he was not there. Bang's process server, Butler, went to Pittman's home where no one answered the

door. As he was leaving Butler noticed a car pulling into the driveway. Butler returned to the house and

spoke with Mrs. Pittman, who offered to accept the summons and complaint. Butler refused to serve

process on Mrs. Pittman without speaking to Bang's attorney. After Butler consulted with the attorney, he

returned to the Pittman home where Mrs. Pittman refused to accept the summons and complaint. Butler

then called Pittman's office and was told that the Pittmans were in Mobile, Alabama.

¶22. Bang asserts that the contradictory statements given by Pittman's staff and his wife are clear evidence

of evasion of service of process. This might be the case if there were information before this Court that

Bang had tried numerous times to serve process on Pittman, only to be thwarted by inaccurate information

given him by Pittman's office or his wife.

¶23. Bang is further damaged by the language in his motion for additional time. Bang, in his motion, asserted

that he would file an affidavit in support of his motion before a hearing on the matter. Bang was noticed and

renoticed a total of four times by Pittman regarding the hearing on this matter. There was ample time for
Bang to file the affidavit by Butler. This affidavit was not filed until after the trial court denied Bang's motion

for more time. Thus, at the time the trial court denied Bang's motion, there was no evidence before the trial

court to show good cause.

¶24. This Court fails to see how the failure to serve Pittman within the prescribed time was due to excusable

neglect. Bang did not attempt to serve Pittman until February 21, 1997. He contends he was thwarted in his

effort to serve Pittman by Pittman himself, Mrs. Pittman, and Pittman's office staff. Bang does not contend

that Pittman was hard to find, that his address was unknown, or that he had left town. When Bang filed his

motion, he told the court he would have an affidavit in support of his motion before a hearing on the matter.

It appears that Bang simply failed to provide the affidavit needed for the trial court to make a decision

regarding good cause.

¶25. Simply put, Bang knew where to find Pittman and failed to serve him during the 120 day period. A

plaintiff must be diligent in serving process if he is to show good cause in failing to serve process within 120

days. Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022 (5th Cir. 1995). There is no showing in

the record provided to this Court that Bang attempted to serve Pittman before February 21, 1997, 117

days after the filing of the complaint. The trial court did not abuse its discretion in denying Bang's motion for

additional time.

¶26. Bang next asserts that the trial court abused its discretion in refusing to set aside its order of dismissal

pursuant to M.R.C.P. 59. In his motion, Bang states that the dismissal was not supported by substantial

evidence, not supported by applicable law, and was contrary to the provisions of M.R.C.P. 4. As

previously discussed, there was no substantial evidence for the trial court to find "good cause" in Bang's

failure to timely serve Pittman. Further, Bang sets forth no applicable law to support his position. We can

reach no conclusion other than the trial court followed the provisions set forth in M.R.C.P. 4.

¶27. Bang also stated that other grounds would be assigned upon a hearing of the motion. However, there

is no transcript of this hearing provided to this Court. This Court has stated that it is the appellant's duty to

provide a record of any proceedings where a claim of error is made. In Re V.R., 725 So.2d 241, 245

(Miss. 1998). Because of Bang's failure to provide transcripts of the relevant hearings, this Court is limited

to review of the record before it. Whatever grounds Bang may have put forward at the hearing cannot be

reviewed by this Court.

¶28. Pittman asserts that the only possible relief available to Bang was under M.R.C.P. 59(e). Rule 59(e)

allows an aggrieved party to make a motion to the court to alter or amend its judgment. Because Rule 59 is

worded verbatim from Rule 59 of the Federal Rules of Civil Procedure, Mississippi will interpret its rule in

accordance with the federal construction. King v. King, 556 So.2d 716, 720 (Miss. 1990)(Robertson, J.

& Pittman, J., concurring). Review of a trial judge's denial of a Rule 59 motion is limited to abuse of

discretion. Jones v. Central Bank, 161 F.3d 311, 312 (5th Cir. 1998).

¶29. There exist three grounds available to an aggrieved party when seeking to alter or amend a judgment:

(1) an intervening change in controlling law, (2) availability of new evidence not previously available, and (3)

need to correct a clear error of law or prevent manifest injustice. Lockett v. Puckett, 988 F.Supp. 1019,

1021 (S.D. Miss. 1997). Nowhere does Bang assert that there was a change in controlling law or a need to

correct a clear error of law or prevent manifest injustice. Bang does not assert that there is any new

evidence that was not previously available to the court.
¶30. The affidavit that Bang filed with his Motion to Set Aside the Order of Dismissal was not new

evidence not previously available to the court. The information contained in the affidavit was available when

Bang filed his Motion for Additional Time to serve process. The affidavit was executed 10 days before the

Order of Dismissal. Bang cannot withhold relevant evidence the he gains before entry of an order of

dismissal from the Court then use the same evidence to support a claim of a discovery of new evidence.

Snavely v. Nordskog Elect. Vehicles "Marketeer", 947 F.Supp. 999, 1011 (S.D. Miss. 1995). The

affidavit does not constitute new evidence to justify relief under Rule 59(e).

¶31. Based upon what little information has been supplied to this Court, we find no abuse of discretion by

the trial court in granting Pittman's motion to dismiss and in denying Bang's motion to set aside its order. As

such, the orders of the trial court dismissing this action without prejudice and denying the motion to set aside

are affirmed.

¶32. AFFIRMED.

PRATHER, C.J., SULLIVAN, P.J., BANKS, SMITH, MILLS, WALLER

AND COBB, JJ., CONCUR. McRAE J., DISSENTS WITH SEPARATE

WRITTEN OPINION.

McRAE, JUSTICE, DISSENTING:

¶33. The majority's opinion upholding the dismissal of a complaint because it was served a mere two days

outside the 120 day period prescribed in Miss. R.Civ.Proc. 4(h) is unnecessarily harsh given the

circumstances. Where those circumstances include seasonable efforts to serve the defendant and, when

those failed, a motion for extension was filed tolling the running of the 120 day time period, I would reach

the opposite result. Therefore, I dissent.

¶34. In this case, Bang filed his medical malpractice complaint against Pittman on October 25, 1996. On

February 21, 1997, Bang's process server attempted to serve Pittman at his office but was told that Pittman

was not there. He went to Pittman's home but found only Pittman's wife there. Although the wife offered to

accept the complaint, the process server demurred needing to first confer with Bang's attorney to determine

whether it was appropriate to leave the complaint with someone other than Pittman. When he returned to

the Pittman home after having been told by Bang's lawyer that he could leave the complaint with Pittman's

wife, Pittman's wife refused to accept the complaint. The process server then called Pittman's office and

was told that Pitmman and his wife were out of town.

¶35. On that same day, Bang filed a motion for extension of time to serve process. A week later, on

February 27, 1997, Pittman was served with the complaint.

¶36. On March 4, 1997, Pittman moved to dismiss the complaint on the basis that it had been served 122

days after filing. The trial court granted the motion and dismissed the complaint without prejudice.

¶37. The federal courts, in determining whether to allow extensions under the federal counterpart to our

4(h), Fed. R.Civ.Proc. 4(m), look at factors such as whether the defendant has evaded service or

concealed a defect in attempted service (1) and whether the defendant has been prejudiced by the failure to

serve. See Mejia v. Castle Hotel, Inc., 164 F.R.D. 343, 346 (S.D.N.Y.1996). Other important
considerations include whether service was eventually accomplished, and if so, how long after the 120 day

time period(2), and whether the statute of limitations has expired, thereby barring the plaintiff from refiling the

complaint. Fed.R.Civ.P. 4(m), advisory committee notes (1993 Amendment).

¶38. Several of the factors militating against dismissal exist in the instant case. First of all, the filing of the

motion for extension of time prior to the expiration of the 120 day period tolls the running of the 120 days.

See e.g., Bruley v. Lincoln Property Co. N.C., Inc., 140 F.R.D. 452 (D.Col. 1991) (a motion to quash

service of process or to dismiss a complaint for failure properly to effect service tolls the 120-day period);

Lord v. Bridges, 1998 WL 792179 *1 (E.D.Pa. 1998) (NO. CIV.A. 97-6355); Arison v. Offer, 669

So.2d 1128, 1129 (Fla.App. 1996). When it became apparent that Bang would be unable to serve the

complaint within the 120 day requirement, he immediately asked for an extension of time. That a hearing

was not held immediately on that motion is not surprising. Nonetheless, Bang did not sit by and await a

ruling on his motion. He continued in his efforts to serve Pittman and, in fact, effected service two days after

the 120 day period ran.

¶39. The fact that the complaint was filed a mere two days outside the 120 period is another, not

inconsiderable, factor in Bang's favor. See Board of Trustees Trucking Employees v. Canny, 876 F.

Supp. 14, 16 (N.D.N.Y. 1995) (denying a motion to dismiss where service was two days late and the

statute of limitations would have barred refiling); Freeze-Dry Prods. v. Metro Park Warehouse, Inc.,

159 F.R.D. 45, 46 (D. Kan. 1994) (denying a motion to dismiss where service was one day late due to a

calculation error by the plaintiff's attorney, and dismissal was considered "relatively pointless" because the

claim would not be time- barred); Mejia v. Castle Hotel, Inc., 164 F.R.D. 343, 345 (S.D. N.Y. 1996)

(extension granted where service was effected nine days after 120 day period expired). To the extent that

service was effected after the running of the 120 day period, it was effected almost immediately thereafter.

Little harm can be said to have occurred in serving the complaint a mere two days late.

¶40. The fact that Bang attempted to serve Pittman prior to the expiration of the 120 period also assists

Bang. Not only did Bang attempt to serve Pittman within the 120 day period, service would have been

effected had not Pittman evaded service. A defendant's evasion of service of process provides good cause

for granting an extension of time for service of process.

¶41. And, finally, Pittman has demonstrated no prejudice from having been served two days after the

running of the 120 day period.

¶42. Under these circumstances, dismissal of Bang's complaint is a penalty much too severe. Therefore, I

dissent from the majority's opinion upholding the dismissal of Bang's complaint.

1. See Fed.R.Civ.P. 4(m), advisory committee notes (1993 Amendment); Gambino v. Village of

Oakbrook, 164 F.R.D. 271, 274 (D.Fla., 1995).

2. See Bd. of Trustees of Trucking Employees v. Canny, 876 F. Supp. 14, 16 (N.D.N.Y. 1995)(court

exercised discretion to allow service filed two days after the 120 day time limit).