Pursuant to Rule 4(h) of the Mississippi Rules of Civil Procedure, a plaintiff is permitted 120 days in which to serve the defendant with the summons and complaint. Specifically, the Rule 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.
What happens if the plaintiffs cannot find the defendant within 120 days?
If a plaintiff is unable to serve a defendant within 120 days, the plaintiff has three available options.
First, prior to the expiration of the 120 days, the plaintiff may file a motion pursuant to Rule 6(b) to extend the deadline. If the plaintiff does so, it need only show “cause” under Rule 6. The “good cause” standard in Rule 4 would not apply. Cross Creek Productions v. Scafidi, 911 So.2d 958, 960 (Miss. 2005).
The second option available to a plaintiff is to simply file a new complaint. Triple C Transport, Inc. v. Dickens, 870 So.2d 1195, 1200 (Miss. 2004). This option may not be available if the statute of limitation has expired.
If the plaintiff does not take either option one or two and the 120 days passes, the third, and final, option available to the plaintiff is to demonstrate “good cause” as required by Rule 4(h). Id.
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.” Watters v. Stripling, 675 So.2d 1242, 1243 (Miss. 1996), citing Systems Signs Supplies v. United States Department of Justice, 903 F.2d 1011, 1013 (5th Cir.1990).
“The plaintiff bears the burden to demonstrate good cause for a failure to serve process in a timely manner.” Copiah County School Dist. v. Buckner, 61 So.3d 162, ¶ 14 (Miss. 2011).
“To meet the burden of proof of good cause, the plaintiff must demonstrate that a diligent effort was made to effect timely service.” Id.
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