179 So. 3d 1127
Miss.2015Background
- In Sept. 2008 Meeks underwent a procedure using a Novasure device manufactured by Hologic; she alleged thermal burn and uterine perforation and discovered injury on Sept. 28, 2008.
- Meeks filed an original malpractice complaint Nov. 16, 2010 naming the surgeon and clinic; both defendants answered.
- Meeks obtained leave and filed a First Amended Complaint (FAC) on Sept. 26, 2011 adding Hologic, but she did not serve Hologic with the FAC.
- Meeks filed a Second Amended Complaint (SAC) on Oct. 25, 2011 without leave or consent; she served Hologic with the SAC on Nov. 22, 2011.
- Hologic removed to federal court then remand; it moved to dismiss in state court arguing Rule 15 violation, statute of limitations failure (service issues), and federal preemption.
- The trial court granted dismissal; the Mississippi Supreme Court affirmed, holding the SAC was improper under Rule 15(a) and Meeks failed to toll the statute of limitations as to Hologic because the FAC was never served.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Meeks could file the SAC as of right after filing the FAC (Rule 15(a) re-establishment) | Meeks: once she filed the FAC (with leave), she could further amend that pleading as of course until a responsive pleading was served to the FAC | Hologic: Rule 15(a) permit to amend as of course ended when defendants had filed responsive pleadings to the original complaint; leave or consent required to file SAC | Court: Rule 15(a) did not re-start; because defendants had answered the original complaint, Meeks needed leave or consent and SAC was improper |
| Whether FAC tolled statute of limitations as to Hologic | Meeks: FAC was filed before limitations expired and service on Hologic occurred via later filings and notices | Hologic: FAC was never served within 120 days, so tolling lapsed and limitations resumed and expired | Court: Filing alone insufficient; because FAC was not served within 120 days, limitations resumed and claims against Hologic are time-barred |
| Whether the FAC relates back under Rule 15(c) so Hologic had timely notice | Meeks: FAC arose from same transaction and Hologic had notice via court filings and removal | Hologic: had no timely notice within Rule 4(h) period and therefore relation-back fails | Court: Relation-back fails because Hologic did not receive notice within the Rule 4(h) period required by Rule 15(c) |
| Whether Hologic waived insufficiency of process/service defenses or whether savings statute applies | Meeks: Hologic pursued Rule 12 motion and thus waived process defenses; savings statute allows refiling within one year | Hologic: argued it expressly preserved and raised lack of service and statute defenses; savings statute inapplicable to failures of service under Rule 4(h) | Court: Hologic sufficiently preserved the defenses; savings statute does not revive action dismissed for failure to serve within limitations period |
Key Cases Cited
- D.P. Holmes Trucking, LLC v. Butler, 94 So.3d 248 (Miss. 2012) (second amended complaint without leave is improper where Rule 15 conditions unmet)
- MS Comp. Choice, SIF v. Clark Scott & Streetman, 981 So.2d 955 (Miss. 2008) (a complaint may be amended without prior service if no responsive pleading has been filed)
- Lone Star Indus., Inc. v. McGraw, 90 So.3d 564 (Miss. 2012) (adding new defendants in a later amendment requires leave of court)
- Veal, 955 So.2d 847 (Miss. 2007) (written consent of adverse parties may not satisfy other rules that require leave when new parties are added)
- Owens v. Mai, 891 So.2d 220 (Miss. 2005) (filing tolls limitations but failure to serve within 120 days under Rule 4(h) resumes limitations)
- Price v. Clark, 21 So.3d 509 (Miss. 2009) (proper service is required to toll the statute of limitations)
- Bedford Health Props., LLC v. Estate of Williams, 946 So.2d 335 (Miss. 2006) (amendment relation-back requires notice sufficient to avoid prejudice to defendant's defense)
- Heard v. Remy, 937 So.2d 939 (Miss. 2006) (defendant’s motion asserting limitations and lack of service can preserve process defenses)