Holmes v. All American Check Cashing, Inc. et al

Filing 102

ORDER denying 96 Motion to Set Aside; giving Plaintiff final extension for service of process. Signed by Senior Judge Neal B. Biggers on 3/27/2015. (llw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
TAMIKA HOLMES
V.

PLAINTIFF
CIVIL ACTION NO. 2:11CV007-NBB-SAA

ALL AMERICAN CHECK CASHING, INC., et al.

DEFENDANTS

ORDER
This cause comes before the court upon Plaintiff’s motion to set aside the court’s March
13, 2014 order granting Defendant’s motion to set aside a default judgment. Upon due
consideration of the motion, response, and authority, the court finds the motion is not well taken
and should be denied.
When Plaintiff first commenced suit, she attempted to perfect service of process by
sending a copy of the complaint and summons via certified mail which was signed for and
accepted by Stephanie Gray, the wife of Defendant’s registered agent, Michael Gray. Plaintiff
argues that this method of service of process upon Defendant was proper under the Mississippi
Registered Agents Act. Plaintiff is mistaken. This act merely permits an entity to be served by
serving its registered agent. See Miss. Code Ann. § 79-35-13. Stephanie Gray was not and is not
a “registered agent” of Defendant’s and, consequently, this argument is without merit.
Plaintiff also argues that service of process may be effectuated if done in accordance with
“a pattern and practice” established by Defendant for accepting service. Plaintiff argues that
Defendant has accepted service of process in this manner before without objecting and that this
evidences a “pattern and practice” on which Plaintiff was permitted to rely. Plaintiff’s reliance
on this proposition, however, is misplaced. The authority on which Plaintiff relies actually

contradicts this argument. See City of Clarksdale v. Bellsouth Telecommunications, Inc., 428
F.3d 206 (5th Cir. 2005).
Plaintiff finally makes an irrelevant argument that courts in other jurisdictions allow
service of process by certified mail. See Alfa Corp. v. Alfagres, S.A., 385 F. Supp. 2d 1230
(M.D. Ala. 2005). In the present case, the court is applying the Mississippi Rules of Civil
Procedure, and Mississippi does not allow service of process upon an in-state defendant by
certified mail. See Miss. R. Civ. P. 4.
The court notes that on March 13, 2015, it denied Defendant’s motion to dismiss for
insufficient service of process and granted Plaintiff a fifteen-day extension within which to
perfect service of process upon Defendant. To date, Plaintiff has not taken advantage of this
extension of time. This is the second extension the court has granted Plaintiff. The court
previously allowed a forty-five day extension for service, and Plaintiff was unsuccessful in her
attempts to serve Defendant during that period. She has never attempted to serve Defendant
through the Secretary of State. Plaintiff will be allowed one more extension, as the court always
prefers that cases be decided on their merits. Consequently, Plaintiff will be allowed twenty-one
(21) days from the date of this order to complete a valid service. There will be no further
extensions.
In accordance with the foregoing analysis, it is ORDERED AND ADJUDGED that
Plaintiff’s motion to reinstate the default judgment is DENIED.
This, the 27th day of March, 2015.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

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