Douglas Michael Long, Jr. v. David J. Vitkauskas
228 So. 3d 383
| Miss. Ct. App. | 2016Background
- Douglas Long sued David Vitkauskas (a Pennsylvania resident) in Mississippi for alienation of affection on March 17, 2014.
- Service was attempted under Miss. R. Civ. P. 4(c)(5) by certified mail marked “restricted delivery” to Vitkauskas’s place of employment.
- The USPS return receipt was signed by “Mary” (last name illegible), not by Vitkauskas, and the envelope was not marked “Refused.”
- Vitkauskas entered a special appearance and moved to dismiss for lack of personal jurisdiction based on insufficient service.
- The DeSoto County Circuit Court granted the motion to dismiss, denied Long’s motion for reconsideration, and refused additional time to effect service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4(c)(5) service by certified mail was sufficient when return receipt was signed by another person | Long: Rule 4(c)(5) was satisfied and strict signer identity is immaterial; Vitkauskas had notice (sought counsel, filed motions) | Vitkauskas: Rule 4(c)(5) requires the defendant personally sign the return receipt or the envelope be marked “Refused” | Service insufficient because restricted-delivery purpose is to ensure the addressee signs; no evidence signatory had authority to accept service |
| Whether plaintiff showed good cause for additional time to serve under Rule 4(h) | Long: Mistaken belief he complied with Rule 4(c)(5) constitutes good cause | Vitkauskas: No excusable neglect; plaintiff could have re-served or timely moved for extension | No good cause shown; trial court did not abuse discretion in denying extension |
Key Cases Cited
- Johnson v. Rao, 952 So. 2d 151 (Miss. 2007) (standard of review for motions to dismiss)
- Nelson v. Baptist Mem’l Hosp.-N. Miss. Inc., 70 So. 3d 190 (Miss. 2011) (abuse-of-discretion for factual findings on service)
- Worthy v. Trainor, 11 So. 3d 1267 (Miss. Ct. App. 2009) (service on nonresident requires strict compliance)
- DeCarlo v. Bonus Stores Inc., 413 F. Supp. 2d 770 (S.D. Miss. 2006) (restricted delivery ensures addressee signs; household member signature insufficient)
- Burleson v. Lathem, 968 So. 2d 930 (Miss. 2007) (service defenses must be affirmatively asserted)
- Powe v. Byrd, 892 So. 2d 223 (Miss. 2004) (good-cause/excusable-neglect standard explained)
- Webster v. Webster, 834 So. 2d 26 (Miss. 2002) (motion for additional time should be filed within the 120-day service period to support good-cause claim)