Archer v. Harlow's Casino Resort & Spa
| Decision Date | 08 March 2022 |
| Docket Number | 2020-CP-00930-COA |
| Citation | 335 So.3d 613 |
| Parties | Mary ARCHER, Appellant v. HARLOW'S CASINO RESORT & SPA, Appellee |
| Court | Mississippi Court of Appeals |
BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Mary Archer filed a complaint against Harlow's Casino Resort and Spa1 alleging fraud and bad faith. Harlow's Casino filed a motion to dismiss Archer's complaint pursuant to Mississippi Rule of Civil Procedure 12(b)(6). The Washington County Circuit Court granted the motion.
¶2. Archer now appeals from the trial court's order granting Harlow's Casino's motion to dismiss pursuant to Rule 12(b)(6). On appeal, Archer does not argue that the trial court erred by granting the motion. Instead, Archer asserts the following assignments of error: (1) the trial court erred in finding that Harlow's Casino demonstrated "excusable neglect" when seeking an extension of time to file its responses to Archer's complaint outside of the thirty-day time limit provided by Mississippi Rule of Civil Procedure 12(a) ; (2) the circuit clerk erred by removing an entry of default against Harlow's Casino; and (3) the trial court erred by dismissing Archer's complaint without giving her a chance to amend her pleadings pursuant to Mississippi Rule of Civil Procedure 15(a).
¶3. After our review, we find that the trial court did not abuse its discretion in determining that Harlow's Casino demonstrated "excusable neglect" when seeking an extension of time to file its responses to Archer's complaint. We also find that the circuit clerk did not err by correcting her mistake and removing the entry of default against Harlow's Casino. However, for reasons discussed below, we must reverse in part and remand this case to the trial court with instructions to dismiss Archer's complaint without prejudice and to allow Archer to amend her complaint, if leave to amend is requested in accordance with Rule 15(a).
FACTS
¶4. Archer filed a complaint against Harlow's Casino alleging fraud and bad faith and seeking damages as the result of a missing casino kiosk ticket. In her complaint, Archer claimed that while she was patronizing Harlow's Casino, she placed $500 on a kiosk ticket. Archer stated that she accidentally dropped the ticket and sought assistance from Harlow's Casino in recovering the ticket. The ticket was never found.
¶5. Archer served Harlow's Casino with process on March 9, 2020. On April 9, 2020, thirty-one days later, counsel for Harlow's Casino entered an appearance, filed a motion seeking an extension of time to file an answer, and filed a motion to dismiss Archer's complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted.2 In its motion to dismiss, Harlow's Casino argued that the trial court should dismiss Archer's complaint pursuant to Mississippi Rule of Civil Procedure 9(b) because Archer failed to state with particularity the circumstances constituting fraud. Regarding Archer's allegation of bad faith, Harlow's Casino argued that she failed to state a claim upon which relief can be granted.
¶6. In its motion for an extension of time, Harlow's Casino asserted that it needed more time to file an answer due to the travel and work restrictions imposed by the COVID-19 pandemic. Harlow's Casino submitted that "[t]his motion is not being made for the purpose of delay, but is made based upon current assignments and the need for time to prepare a response." The trial court entered an order granting Harlow's Casino's motion and extending the time for Harlow's Casino to file its answer.
¶7. On April 13, 2020, four days after Harlow's Casino filed its motions and entry of appearance, Archer filed an application for an entry of default with the circuit clerk. That same day, the clerk entered default. On April 14, 2020, the clerk emailed Archer regarding her application and the clerk's entry of default against Harlow's Casino. The clerk explained that she made these filings in error because on April 9, 2020, counsel for Harlow's Casino had filed an entry of appearance, motion for an extension of time, and motion to dismiss.
¶8. On May 8, 2020, Harlow's Casino filed its answer and asserted the affirmative defenses of failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) and failure to plead fraud with particularity pursuant to Rule 9(b).
¶9. Archer moved to strike Harlow's Casino's answer, arguing that the motions filed by Harlow's Casino on April 9, 2020, were untimely pursuant to Rule 12(a) and that Harlow's Casino failed to show the requisite "excusable neglect" for obtaining an extension of time. Archer also filed a response to Harlow's Casino's motion to dismiss. In her response, Archer maintained that she stated a claim upon which relief may be granted. She also requested that the trial court grant her leave to amend her complaint pursuant to Rule 15(a).
¶10. On July 9, 2020, the trial court entered an order granting Harlow's Casino's motion to dismiss Archer's complaint after finding that Archer failed to state a claim for which relief can be granted and failed to plead fraud with particularity. Archer now appeals.
DISCUSSION
I. Excusable Neglect
¶11. Archer argues that in its motion for an extension of time to file its answer, Harlow's Casino failed to show "excusable neglect" for missing the thirty-day time limit. Archer also asserts that in granting the motion, the trial court failed to make a finding of "excusable neglect" by Harlow's Casino.
¶12. Rule 12(a) requires a defendant to "serve his answer within thirty days after the service of the summons and complaint upon him or within such time as is directed pursuant to Rule 4." Harlow's Casino admits that it did not file its motion seeking an extension of time to file an answer within the thirty-day time period. When, as in the case before us, "an act is required or allowed to be done ... within a specified time," Rule 6(b)(2) provides a trial court the discretion "upon motion made after the expiration of the specified period [to] permit the act to be done where failure to act was the result of excusable neglect." Therefore, because the time for serving its answer had expired, Harlow's Casino had to show that its "failure to act was the result of excusable neglect." M.R.C.P. 6(b)(2). The advisory committee note to Rule 6 explains that " Rule 6(b) gives the court wide discretion to enlarge the various time periods both before and after the actual termination of the allotted time, certain enumerated cases being excepted."3 M.R.C.P. 6 advisory committee note. We review a trial court's findings of fact concerning the existence or lack of good cause or excusable neglect for an abuse of discretion. Clark v. Knesal , 113 So. 3d 531, 539 (¶28) (Miss. 2013).
¶13. Our review of Harlow's Casino's motion shows that it requested more time to file an answer due to the travel and work restrictions imposed by the COVID-19 pandemic. Harlow's Casino explained that its counsel is located in Kentucky and that on March 6, 2020, three days before being served process, the Governor of Kentucky issued a State of Emergency due to the pandemic. On March 16, 2020, the Governor of Mississippi issued an order closing Harlow's Casino. On April 2, 2020, the Governor of Kentucky issued travel restrictions on Kentucky residents. Harlow's Casino stated that given all of these restrictions, its counsel encountered difficulties gathering information from the closed casino in order to prepare an answer. Harlow's Casino further submitted that "[t]his motion is not being made for the purpose of delay, but is made based upon current assignments and the need for time to prepare a response." In its order granting the motion, the trial court found that "the grounds asserted are well founded." The trial court explained that it considered Harlow's Casino's request for an extension of time "in light of the current pandemic and government orders restricting operations and travel."
¶14. The Mississippi Supreme Court has held that "simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice" to establish excusable neglect. Watters v. Stripling , 675 So. 2d 1242, 1243 (Miss. 1996) ; see also Collins v. Westbrook , 184 So. 3d 922, 932-33 (¶30) (Miss. 2016). In this case, counsel for Harlow's Casino was restricted from traveling out of state or visiting the casino due to emergency orders related to the COVID-19 pandemic, all of which hindered counsel's ability to prepare an answer. Our supreme court also entered an Emergency Administrative Order on March 13, 2020, recognizing the national emergency related to COVID-19 and authorizing trial courts "to exercise their sound discretion in extending deadlines, rescheduling hearings and trials and any other matters by case specific actions or by general orders." In re: Emergency Order Related to Coronavirus (COVID-19) , No. 2020-AD-00001-SCT (March 13, 2020). Accordingly, we find that the trial court did not abuse its discretion in determining that the restrictions upon Harlow's Casino's counsel imposed due the COVID-19 emergency constituted "excusable neglect."4
II. Entry of Default
¶15. Archer next asserts that the circuit clerk erred by removing the entry of default against Harlow's Casino. Archer argues that pursuant to Mississippi Rule of Civil Procedure 55(c), only a judge can set aside an entry of default. She also maintains that the record shows that Harlow's Casino was in fact in default due to its failure to take any action within thirty days of service of process.
¶16. Rule 55(a) sets forth the process for obtaining an entry of default: "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise,...
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