Montgomery v. Smithkline Beecham Corp.

• Decision Date: 24 February 2005
• Docket Number: No. 2004-CA-00091-SCT.,2004-CA-00091-SCT.
• Citation: 910 So.2d 541
• Parties: Shannon MONTGOMERY and John David Montgomery as the Lawful Heirs of David E. Montgomery, Deceased v. SMITHKLINE BEECHAM CORPORATION f/k/a GlaxoWellcome, Inc., d/b/a GlaxoSmithKline; Edward Gore, M.D.; North Mississippi Medical Center; North Mississippi Family Medical Clinic, Inc., d/b/a Chickasaw Family Medical Clinic; and Wal-Mart Stores, Inc.
• Court: Mississippi Supreme Court

910 So.2d 541

Shannon MONTGOMERY and John David Montgomery as the Lawful Heirs of David E. Montgomery, Deceased v. SMITHKLINE BEECHAM CORPORATION f/k/a GlaxoWellcome, Inc., d/b/a GlaxoSmithKline; Edward Gore, M.D.; North Mississippi Medical Center; North Mississippi Family Medical Clinic, Inc., d/b/a Chickasaw Family Medical Clinic; and Wal-Mart Stores, Inc.

No. 2004-CA-00091-SCT.

Supreme Court of Mississippi.

February 24, 2005.

COPYRIGHT MATERIAL OMITTED

Jonathan Thomas Crump, Tupelo, attorney for appellants.

Josiah Dennis Coleman, Robert K. Upchurch, David W. Upchurch, John G. Wheeler, Donna M. Barnes, Tupelo, R. Brittain Virden, Charles S. Hewins, Greenville, attorneys for appellees.

EN BANC.

DICKINSON, Justice, for the Court.

¶ 1. According to plaintiffs Shannon and John David Montgomery, David E. Montgomery died on November 17, 1999, as a result of taking Allopurinol, a drug manufactured by SmithKline Beecham Corp.¹ The prescription was written by Dr. Edward Gore, plaintiffs further allege that while acting as the agent of North Mississippi Medical Center and North Mississippi Family Medical Clinics, Inc. (d/b/a Chickasaw Family Medical Clinic) and was filled by the pharmacy at Wal Mart Store # 10-0411 in Houston, Mississippi.

¶ 2. Suit was filed November 16, 2001, but plaintiffs did not immediately attempt to have process served on the defendants. Instead, on February 20, 2002, plaintiffs filed a motion, representing to the court that additional time was needed for service of process. The basis of the motion was that the law firm, Greer, Pipkin and Russell, had been recently associated, and "[a]fter several attempts, Plaintiffs' newly associated counsel [had] been unable to properly confer with plaintiffs Shannon Montgomery and John David Montgomery." Also, plaintiffs' counsel represented that "additional time [would] allow plaintiffs to file an amended complaint that [would] simplify the issues." An order granting "an additional 120 days from the date of entry of [the] order" was signed on February 12, 2002 (eight days before the motion was filed); but for reasons we are not told, the order was not entered of record until April 23, 2002.²

¶ 3. On July 22, 2002, neither counsel for plaintiffs had served process on the defendants. The plaintiffs' attorneys signed an agreed ordered allowing Greer, Pipkin and Russell to withdraw from the action, and plaintiffs filed another motion for additional time (60 days) for service of process, stating as their "good cause" the fact that Greer, Pipkin and Russell had not caused process to be served, and "Shelton & Associates have had no time to effect service of process on the defendants." The motion also requested that the court "relate back" the additional time to the February 12, 2002, order. An order was entered on July 22, 2002, granting the requested extension and ordering that the order "shall relate back to the court's order of February 12, 2002." Assuming arguendo the plaintiffs' reasons for the extension constituted "good cause" (discussed infra), the court's July 22, 2002 order extended the time for service of process for sixty days from July 31, 2002 (the date of entry of the order). However, as of September 29, 2002, (sixty days later), process had not been served, and no further extension had been requested, as of that date.

¶ 4. On December 3, 2002, 65 days after the expiration of the extension granted by the July 31, 2002 order, counsel for plaintiffs filed their third motion for additional time to serve process, stating that the attorney of record, Paul Goodman, was shot and killed, and his "sudden and unexpected death left the status of this file in question." The motion further averred that "it could not be determined if Mr. Goodman had time before his death to attempt service upon Defendants...." Plaintiffs' new counsel, Jon T. Crump,³ urged that these circumstances warranted a finding of excusable neglect. He requested an additional 30 days to serve process and further requested that the court have the extension "relate back" to the July 22, 2002 order. An ordered was signed and entered on December 3, 2002, "granting an additional 30 days from the entry of [the] order to effectuate service of process on the defendants...." The order further purported to "relate back" to the court's prior order of July 22, 2002.

¶ 5. Plaintiffs' counsel filed, on December 9, 2002, an amended complaint which: (a) named the same defendants as the original complaint; (2) alleged the same counts and claims as the original complaint; and (3) had 64 numbered paragraphs, whereas the original complaint had 63. On the same day the amended complaint was filed, process was served on Dr. Gore and Chickasaw Family Medical Clinic. As of December 30, 2002, all defendants had been served with process.

¶ 6. On January 8, 2003, Dr. Gore, North Mississippi Medical Center, Inc., and North Mississippi Medical Clinics, Inc. d/b/a Chickasaw Family Medical Clinic filed a Motion to Dismiss based upon insufficiency of process and insufficiency of service of process with 120 days after the filing of the Complaint, expiration of the statute of limitations, and failure to state a claim upon which relief can be granted.

¶ 7. On January 14, 2003, SmithKline Beecham f/k/a GlaxoWellcome, Inc., d/b/a GlaxoSmithKline filed its motion to dismiss on similar grounds, as did Walmart Stores, Inc. on January 22, 2003.

¶ 8. On July 2, 2003, a hearing was conducted on the motions to dismiss, and a Final Judgment granting the Defendants' motions to dismiss and dismissing the case with prejudice as to all defendants was signed by the trial judge on January 5, 2004, and entered of record on January 7, 2004. The plaintiffs now appeal from that judgment.

STANDARD OF REVIEW

¶ 9. This Court has held:

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' on appeal. Rains v. Gardner, 731 So.2d 1192, 1197-98 (Miss.1999). When reviewing fact-based findings, we will only examine `whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.' Id. at 1197. However, a decision to grant or deny an extension of time based upon a question of law will be reviewed de novo. Id. at 1198.

Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002) (citation omitted).

ANALYSIS

¶ 10. Plaintiffs raise two issues: (1) Whether they demonstrated good cause for failing to serve process within 120 days of filing the complaint, and (2) whether the trial court is bound by its own order granting an extension of time to serve process. Our resolution of the first issue renders resolution of the second unnecessary.

¶ 11. 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.

¶ 12. The strict language of Rule 4(h) suggests that "good cause" can only be shown after the expiration of the 120-day period — and then, only to demonstrate "why such service was not made within that period,...." (Emphasis added). The Mississippi Rules of Civil Procedure do not provide for prospective good cause, that is, good cause which extends into the future, and there is no provision for extending the time for service of process.

¶ 13. Indeed, this Court has stated that, although there is no requirement of a motion for additional time, "the better method to be utilized in future cases would be for plaintiff's counsel to seek authority for extensions from the court, rather than unilaterally making this decision himself." Fortenberry v. Mem'l. Hosp., 676 So.2d 252, 256 (Miss.1996). Ordinarily under Rule 4(h), where the 120 days has expired, a court must notify the plaintiff that, because of the failure to serve process, the case is subject to dismissal. The plaintiff must then appear and attempt to show good cause why process was not served within the 120-day period for service.⁴ "Good cause" can never be demonstrated where plaintiff has not been diligent in attempting to serve process. Bang v. Pittman, 749 So.2d 47, 52 (Miss.1999). In demonstrating good cause and diligence, a plaintiff must show that he or she has been unable to serve process because the defendant evaded process or engaged in misleading conduct, or for some other acceptable reason, as discussed in Holmes, 815 So.2d at 1186.

¶ 14. Notwithstanding the absence of any specific rule allowing or requiring a motion for additional time for service of process, this Court has held that, if it appears process cannot be served within the 120-day period, "a diligent plaintiff should file [a motion for additional time to serve process] within the 120-day time period. Such diligence would support an allegation that good cause exists for failure to serve process timely." Webster v. Webster, 834 So.2d 26, 29 (Miss.2002). In Webster this Court went on to say:

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, 75 Ark.App. 164, 55 S.W.3d 307 (2001); Norstar Bank of Upstate New York v. Wittbrodt, 154 Misc.2d 260, 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 of service may be extended by the court upon a showing of good cause.' Ark.R.Civ.P. 4(i...