204 So. 3d 840
Miss. Ct. App.2016Background
- In April 2010 Ogunbor bought patio furniture at Sears; employee Maleisha May overheard her give a home address and later visited Ogunbor’s house, spoke briefly in the driveway, and sent several text messages.
- Ogunbor alleged May stalked and sexually harassed her (including two disputed text messages) and that Sears was vicariously liable and negligent for failing to prevent or correct May’s conduct.
- May was convicted in municipal court of making harassing telephone calls related to the incident.
- Procedurally, Ogunbor (pro se) filed multiple complaints and amendments; some defendants were not timely served and the court dismissed those claims for lack of timely service.
- The trial court struck Ogunbor’s second amended complaint for failure to obtain leave to amend and granted summary judgment for Sears and a co-defendant, holding May’s alleged conduct was outside the course and scope of employment.
- The Court of Appeals affirmed: no good cause for late service, striking of the untimely amended complaint was appropriate, and Sears owed no duty because the alleged conduct was a personal deviation (not within employment scope).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness/sufficiency of service on May | Service was effectively made (process server return was misleading); May avoided service; judge implicitly extended time | Deputy served a different employee (Impey); May was not timely served within 120 days; no evidence May evaded service; no extension given | Court: Service on May was untimely; no good cause shown; dismissal proper |
| Second amended complaint struck | Court orally permitted filing; striking was improper | Plaintiff failed to obtain leave or adverse parties’ consent and filed without proposed pleading | Court: Striking was within discretion; plaintiff misunderstood judge; amendment improper |
| Summary judgment / vicarious liability (course & scope) | Genuine factual disputes exist; discovery incomplete; May’s texts/visits furthered Sears’ liability | May’s conduct was personal, clandestine, outside authorized time/space and unrelated to Sears’ interests; time records show texts occurred off duty | Court: No genuine issue — alleged conduct was a personal deviation (frolic), not within scope; no duty to supervise off-duty conduct; summary judgment affirmed |
| Request for sanctions against clerk | Appellate record mishandling justifies heavy sanctions | Clerk’s handling did not prejudice plaintiff; no comparable neglect to precedent | Court: Request baseless; decline sanctions |
Key Cases Cited
- Baker Donelson Bearman Caldwell & Berkowitz P.C. v. Seay, 42 So. 3d 474 (Miss. 2010) (employee misconduct that is a personal, clandestine deviation is outside course and scope and cannot support vicarious liability)
- BB Buggies Inc. v. Leon, 150 So. 3d 90 (Miss. 2014) (service-of-process sufficiency is a jurisdictional question reviewed de novo)
- Powe v. Byrd, 892 So. 2d 223 (Miss. 2004) (standard for establishing "good cause" for untimely service requires at least excusable neglect)
- Owens v. Thomae, 759 So. 2d 1117 (Miss. 1999) (Rule 56(f) / discovery: nonmoving party must show how further discovery would create a genuine issue of material fact)