Leggett v. Graybar Electric Company, Inc. et al
Filing
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ORDER denying 7 Motion to Dismiss. Signed by District Judge Carlton W. Reeves on 04/13/2015. (AC)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOHNNY LEGGETT
PLAINTIFF
V.
CAUSE NO. 3:14-CV-364-CWR-FKB
GRAYBAR ELECTRIC COMPANY, INC.;
JOHN/JANE DOES 1-5
DEFENDANTS
ORDER
Before the Court is the defendant’s motion to dismiss. After considering the facts,
arguments, and applicable law, the motion will be denied.
I.
Factual and Procedural History
Johnny Leggett claims he was terminated by Graybar Electric Company, his employer of
more than 26 years, for having two medical conditions and for giving an 800mg ibuprofen to a
coworker. Docket No. 1-2, at 2. He alleges that neither the recipient of the ibuprofen nor
employees who shared controlled substances were terminated. Id. at 2-3.
On December 3, 2013, Leggett filed this suit in the Circuit Court of Madison County,
Mississippi, alleging race discrimination in violation of the Civil Rights Act of 1964, disability
discrimination in violation of the Americans with Disabilities Act, breach of contract, and
defamation. Id. at 3-4. An amended complaint added theories of intentional or negligent
infliction of emotional distress, negligent management, and fraud, among others. Id. at 13.
On April 2, 2014, Leggett moved the Circuit Court for an extension of time in which to
serve Graybar. Id. at 16. He claimed that he had made “numerous” attempts to serve Graybar;
that he had served one of Graybar’s employees, a person who has yet to be identified; that his
attorney had personally made one attempt at effecting service; and that he had “reason to believe
the defendant is attempting to evade service of process.” Id. The motion was never adjudicated.
One day later, Graybar was served. Docket No. 1, at 1. It subsequently removed the suit
to this Court by invoking federal question and diversity jurisdiction. Id. The present motion
followed.
II.
Arguments
Graybar contends that the case should be dismissed without prejudice because Leggett
failed to effect service within the 120-day period afforded by Mississippi Rule of Civil Procedure
4(h), despite knowing the address of Graybar’s registered agent. Docket No. 7. April 2 was the
deadline, it says, so service on April 3 was too late. Id.
Leggett responds with an affidavit from his process server stating that she went to the
registered agent’s office “numerous times” between March 3 and April 2, 2014, and had “no
success” in serving the summons and complaint. Docket No. 10-1. On April 2, 2014, for
example, the door was locked and no one in the office picked up the phone, she claims. Id.
Leggett argues that this circumstance and his motion seeking additional time together constitute
“good cause” for an extension. Docket No. 11. He also argues that the statute of limitations was
tolled for the 120 days which passed between the filing of the complaint and service. Id. Finally,
he claims that he did serve the defendant properly within the 120-day window, possibly by
serving one of Graybar’s employees. Id.
Graybar’s rebuttal says the good cause factors are not satisfied here. It takes special aim
at the claim that it evaded service; it has attached an introductory email its attorneys sent to
Leggett’s attorney in January 2014, arguing that communicating months before the 120-day
window expired shows there was no evasion. Docket No. 5.
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III.
Law
Because the events in question occurred while this case was pending in state court, this
Court looks to state rules to determine whether service was proper. See Taylor v. Bailey Tool
Mfg. Co., 744 F.3d 944, 946-47 (5th Cir. 2014) (collecting cases).
Under Mississippi Rule of Civil Procedure 4(d), a corporation is served “by delivering a
copy of the summons and of the complaint to an officer, a managing or general agent, or to any
other agent authorized by appointment or by law to receive service of process.” Miss. R. Civ. P.
4(d)(4). “Plaintiffs normally meet the burden of establishing that the defendant was properly
served by producing the process server’s return of service, which is generally accepted as prima
facie evidence of the manner in which service was effected.” Nabulsi v. Nahyan, No. H-06-2683,
2009 WL 1658017, at *4 (S.D. Tex. June 12, 2009) (quotation marks and citations omitted).
Under Mississippi Rule of Civil Procedure 4(h), the plaintiff has 120 days from the filing
of the complaint to serve the defendant with a summons and complaint. Miss. R. Civ. P. 4(h). If
the plaintiff “cannot show good cause why such service was not made within that period, the
action shall be dismissed as to that defendant without prejudice.” Id.
Under Mississippi Rule of Civil Procedure 6(b), when the rules require an act to be done
“within a specified time, the court for cause shown may at any time in its discretion (1) with or
without motion or notice order the period enlarged if request therefore is made before the
expiration of the period originally prescribed.” Miss. R. Civ. P. 6(b). “An application under Rule
6(b)(1) normally will be granted in the absence of bad faith or prejudice to the adverse party.”
Cross Creek Prods. v. Scafidi, 911 So. 2d 958, 960 (Miss. 2005) (quotation marks, citation, and
brackets omitted).
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“Rule 4(h) clearly does not apply to a motion for additional time filed within the initial
120 days.” Id. Rather, a plaintiff “proceeding within the initial 120-day period prescribed by
Rule 4(h), [is] entitled to an order from the trial judge for an enlargement of time in which to
serve process ‘for cause shown.’” Johnson v. Thomas ex rel. Polatsidis, 982 So. 2d 405, 413
(Miss. 2008) (quoting Rule 6(b)(1)); accord Nelson v. Baptist Mem’l Hosp.-N. Mississippi, Inc.,
972 So. 2d 667, 671 (Miss. App. 2007).
IV.
Discussion
At the outset, the Court cannot credit Leggett’s assertion that he served Graybar within
the deadline via one of its employees. There is no record evidence showing who was served and
whether that person was authorized to accept service of process. See Johnson v. Rao, 952 So. 2d
151, 155 (Miss. 2007) (“we must examine each case to determine whether the person was
authorized as an agent for purposes of accepting service of process”); Lewis v. Forest Family
Practice Clinic, P.A., 124 So. 3d 654, 657 (Miss. 2013). His assertion will not suffice.
Turning now to the main issue, the briefing has focused on whether Leggett has shown
good cause to receive an extension of time. But Mississippi law suggests that he is not required
to show good cause because he moved for an extension before the deadline.
The difficulty of this case lies in its unusual fact pattern. Leggett moved for additional
time to serve Graybar on the 120th day. His motion was timely; the deadline had not yet expired.
Under Mississippi law, the motion simply needed to satisfy the “cause” standard. Mississippi law
further provides that such a motion “normally will be granted in the absence of bad faith or
prejudice to the adverse party.” Scafidi, 911 So. 2d at 960. Neither of those is present here. The
motion very likely would have been granted.
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Graybar argues that the filing of the motion is irrelevant because Leggett “never . . .
noticed that Motion for hearing, or otherwise sought (or, more importantly, obtained) court
approval of his last-minute extension request.” Docket No. 8, at 5. Graybar is correct that the
motion was never adjudicated. The record does not explain why. We do not know whether the
judge was out of the office, whether Leggett filed his motion at the last possible minute, or
whether something else occurred. But it is not clear that any of those facts, if true, would be
relevant under Mississippi law. The motion was filed before the deadline.
Leggett served Graybar the very next day. That was the 121st day after the filing of the
complaint. All should agree it was better for Graybar to be served as promptly as possible, and
that it would have been inappropriate for Leggett to delay service simply to get a ruling on his
motion. After Leggett did achieve service, however, it is perhaps understandable that a state
court would decline to take up an arguably moot motion in the remaining days it had jurisdiction
over a case containing obviously federal claims. It was no longer that court’s problem.
On one hand, Leggett acted appropriately in seeking an extension of time before his
service deadline ran. His motion met the “cause” standard under Mississippi law because there
was no bad faith or prejudice to the defendant. Leggett also acted appropriately in going ahead
and serving Graybar on day 121 without artificially waiting for a ruling on his motion to justify
the delayed service. On the other hand, it also is true that he should have pursued an Order from
the trial judge on day 120 or 121. As anyone in this business recognizes, however, the
availability of judges is not guaranteed. It can be difficult to get rulings on the exact day one
needs them.
The Mississippi Court of Appeals’ decision in Edwards v. State Farm sheds some light
on the question – and may weigh in Graybar’s favor. 117 So. 3d 639, 641 (Miss. App. 2013).
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There, the plaintiff moved for an extension of time on the 120th day, like Leggett. She did not
seek a ruling on the motion before finally serving the defendant on the 160th day. Id. The trial
court and the Court of Appeals concluded that her failure to “promptly seek” a ruling meant that
the good cause standard applied, not the cause standard. Id. Acknowledging that it made sense to
force Edwards to “promptly seek” a ruling in the 40 days she had between her motion and
service, however, it does not follow that the same is true of Leggett, who completed service on
the 121st day. Again, the record does not reflect whether it was possible to seek a ruling on the
motion in the hours that elapsed between Leggett’s motion and his completed service on
Graybar.
For its own part, the Mississippi Supreme Court appears to not favor dismissals where the
plaintiff has shown some diligence and effected service on the 121st day. In Foss v. Williams,
after a miscommunication between counsel, and on the eve of the 120-day deadline, three
defendants were served in time while the fourth was served on the 121st day. 993 So. 2d 378,
379 (Miss. 2008). The trial judge thought this diligence established good cause for the late
service of the fourth defendant, and the Mississippi Supreme Court affirmed. Id. Foss is different
from our case in that there was no motion for extension filed, and accordingly, the good cause
standard went into effect after day 120, as to the fourth defendant. But it is obviously similar to
today’s case in the length of time at issue and the ultimate conclusion: a one-day delay is not
consequential where the plaintiff’s attorney has shown diligence.
On balance, and considering the Mississippi Supreme Court’s ruling in Scafidi, the Court
finds that Mississippi law would permit Leggett’s complaint to proceed.
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V.
Conclusion
The motion is denied. The parties shall contact the Magistrate Judge’s chambers within
10 days to move forward with this case.
SO ORDERED, this the 13th day of April, 2015.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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