MARY MEEKS v. HOLOGIC, INC.
NO. 2014-IA-00844-SCT
IN THE SUPREME COURT OF MISSISSIPPI
12/17/2015
HON. ALBERT B. SMITH, III
DATE OF JUDGMENT: 05/02/2014; COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT;
BEFORE RANDOLPH, P.J., KING AND COLEMAN, JJ.
KING, JUSTICE, FOR THE COURT:
¶1. After all defendants to the original complaint filed responsive pleadings in Mary Meeks’s medical malpractice suit, Meeks obtained leave of court and filed a first amended complaint (FAC), adding as a defendant the manufacturer of a medical device, Hologic, Inc. Meeks did not serve the FAC on Hologic but instead filed a second amended complaint (SAC) without leave of court or permission from all defendants. Hologic filed a motion to dismiss, arguing that Meeks’s claims against Hologic were federally preempted and that Meeks’s claims additionally were barred by the statute of limitations. Because Meeks failed to obtain leave of court or permission from the defendants to file the SAC and because the FAC was never served upon Hologic, we find that the statute of limitations had expired against Hologic and that the trial court properly granted Hologic’s motion to dismiss.
FACTS AND PROCEDURAL HISTORY
¶2. On September 26, 2008, Dr. Kushna Damallie, an employee of The Women’s Clinic (TWC), performed an outpatient diagnostic hysteroscopy and an endometrial ablation on Meeks at the Northwest Regional Medical Center (NWRMC) in Clarksdale. Dr. Damallie used a Novasure medical device manufactured and sold by Hologic to treat Meeks’s menorrhagia. On September 28, 2008, Meeks returned to the NWRMC, complaining of abdominal pain, nausea, and vomiting. Meeks’s preliminary tests indicated a perforation of Meeks’s uterus and blanching of the surrounding wall that was indicative of a burn injury.
¶3. Pursuant to
¶4. On September 26, 2011, Meeks filed an FAC, with
¶5. On October 25, 2011, Meeks filed an SAC without leave of court or permission from opposing parties. The SAC asserted six causes of action: 1) medical negligence against Dr. Damallie; 2) failure to supervise and train against TWC; 3) failure to obtain informed consent against Dr. Damallie and TWC; 4) negligent failure to warn against Hologic; 5) negligence per se against Hologic; and 6) requested a declaratory judgment that an implied or express preemption defense against Hologic was unavailable. Meeks served Hologic with a copy of the SAC on November 22, 2011. Dr. Damallie and TWC filed separate answers to the SAC without objection on November 29, 2011.
¶6. Hologic removed the case to the United States District Court for the Northern District of Mississippi, Delta Division, on December 20, 2011. Hologic asserted that under
¶7. Hologic then filed a
¶8. On June 2, 2014, the circuit court granted the motion to dismiss in favor of Hologic, holding that Meeks’s claims against Hologic in the SAC were in violation of
¶9. This Court granted Meeks’s petition for interlocutory review by order dated July 23, 2014. Meeks now argues that: 1) the circuit court incorrectly interpreted the phrase before a responsive pleading is served in the context of multiple defendants when all have not filed responsive pleadings; 2) the trial court erred in finding that the claims asserted against Hologic are barred by the statute of limitations; 3) Hologic waived any
¶10. When reviewing a trial court’s grant of a motion to dismiss, this Court applies a de novo standard of review. Peoples Bank of Biloxi v. McAdams, 171 So. 3d 505, 508 (Miss. 2015) (citing Whitaker v. Limeco Corp., 32 So. 3d 429, 433-34 (Miss. 2010)).
I. Whether the trial court erred in finding that Rule 15(a) is not re-established once an amended complaint is filed.
¶11.
A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served . . . . Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.
¶12. Meeks argues that her right to amend a pleading as a matter of course under
¶13. The trial court found D.P. Holmes Trucking, LLC v. Butler, 94 So. 3d 248 (Miss. 2012), to be similar. The plaintiff filed a complaint naming Holmes individually as a defendant, and Holmes filed an answer and affirmative defenses in response. Id. at 250. The plaintiff then moved the court to substitute Holmes, individually, for Holmes Trucking as a defendant or, in the alternative, to file an amended complaint to add Holmes Trucking as a defendant. Id. The parties signed an agreed order allowing Butler to add Holmes Trucking as a defendant. Id. In Butler’s FAC, however, instead of adding Holmes Trucking, he substituted Holmes Trucking. Id. Holmes Trucking moved to strike the FAC and also answered and asserted affirmative defenses. Id. Butler then filed an SAC without leave of the court or the defendants’ consent. Id. at 250-51. This Court found that because Butler failed to seek leave of court or permission from Holmes Trucking, his second amended complaint is improper. . . . Id. at 254.
¶14. Meeks contends that this Court found that Butler was not in compliance with
¶15. Meeks argues that this Court’s holdings in Butler and MS Comp Choice support her position that a plaintiff can amend a FAC as a matter of right until responsive pleadings are filed to that particular complaint, even though the FAC was not served on Hologic. We find this argument to be lacking. The MS Comp Choice Court found that the plaintiff could file an amendment to her original complaint even though the original complaint had not been served, because no party had filed a responsive pleading to the original complaint. Meeks ignores the fact that, here, both parties to the original complaint had filed responsive pleadings before Meeks filed her FAC and SAC. Meeks was required to, and did, ask for leave of court to file her FAC. This Court rejects Meeks’s argument that she then was able to file numerous amended complaints to the FAC without leave of court or permission from the defendants.
¶16. Additionally,
¶17. This Court also has found that an SAC that adds new defendants requires the plaintiff to obtain leave of court pursuant to
¶18. Both McGraw and Veal support the trial court’s finding that the SAC was improperly filed, because Meeks failed to obtain leave of court or to obtain permission from the defendants. Meeks argues that McGraw and Veal are not persuasive, because, in those cases, this Court held that a second amended complaint that joined additional defendants required
¶19. Meeks then argues that this Court should look to the federal courts for guidance on construction and interpretation and cites Barksdale v. King, 699 F. 2d 744, 746 (5th Cir. 1983).1 In Barksdale, the 5th Circuit held that [i]f the amendment affects all defendants or one or more of those that have not responded, then it is generally held that a responsive pleading has not been served for purposes of
¶20. Meeks argues that no party to the FAC had filed an answer to the FAC, thus Barksdale is persuasive. Again, in Barksdale, the plaintiff was allowed to amend his original complaint as of right, not to amend his FAC. And, here, all parties to the original complaint answered the original complaint before the FAC was ever filed. Thus, Barksdale does not
support Meeks’s contention that
¶21. Meeks next cites Brewer v. Rockwell International Corp., 40 F. 3d 1119, 1125 (10th Cir. 1994). In this case, the Tenth Circuit found that [b]ecause defendants’ motions to dismiss or for summary judgment were not responsive pleadings, [the plaintiff] could have amended her complaint prior to dismissal without requesting or receiving leave of the court. Id. at 1131. And again, the plaintiff was allowed to amend her original complaint and not her FAC. While Meeks was correct in stating that numerous federal district courts have reached consistent rulings, these courts consistently have ruled that
¶22. As the trial court stated, re-establishing the right to amend a complaint once a plaintiff obtains permission from each party or obtains leave of court would give Meeks a rubber stamp to repeatedly amend her complaint, thereby giving her an unfair advantage. The trial
court correctly held that Meeks’s SAC was improper and must be dismissed, because under
II. Whether the trial court erred in finding that Meeks’s FAC was untimely under Mississippi Code Section 15-1-49 .
¶23. The trial court next held that Meeks’s FAC also was improper because it did not relate back to the original complaint’s filing date and was outside of the statute of limitations. We agree.
A. Statute of Limitations
¶24. Under
¶25. Meeks argues that service of process was obtained on Hologic on November 22, 2011, well within the time period for service. However, Meeks served Hologic with the SAC on November 22, 2011, not the FAC. While Meeks served Hologic with the SAC, as discussed above, Meeks filed the SAC in violation of
¶26. Meeks additionally argues that Hologic received a copy of the FAC on December 13, 2011, when Hologic’s counsel obtained the Coahoma County, Mississippi Circuit Clerk’s certification that a complete copy of the record was attached to Hologic’s Notice of Removal filed in federal court. Meeks states that this constitutes an evidentiary admission that Hologic in fact received a copy of the FAC in the federal court action. Regardless of whether Hologic received a copy of the FAC on December 13, 2011, Meeks did not serve the FAC upon Hologic. Proper service is required to toll the statute of limitations. Price v. Clark, 21 So. 3d 509, 522 (Miss. 2009). Because Meeks did not serve the FAC on Hologic, the statute of limitations was not tolled, and it expired 120 days after the FAC was filed. Because
B. Rule 15(c)
¶27. Meeks next argues that her FAC relates back to the date of the original complaint under
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party’s defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
¶28. Thus, the first test required under
Bedford Health Props., LLC v. Estate of Williams ex rel. Hawthorne, 946 So. 2d 335 (Miss. 2006) (quoting Parker v. Miss. Game and Fish Comm’n, 555 So. 2d 725 (Miss. 1989)) ([The] standard for determining whether amendments qualify under Rule 15(c) is not simply an identity of transaction test . . . the courts also inquire into whether the opposing party had been put on notice regarding the claim or defense raised by the amended pleadings.). This was approximately 314 days from the filing of the original complaint, well after the 120-day time period required by
¶29. Therefore, the FAC fails the second test under
III. Whether Hologic waived Rule 12(b)(4) and (b)(5) insufficiency of process and service of process affirmative defenses.
¶30. Meeks then argues that Hologic procedurally opted to file a motion to dismiss and failed to incorporate all
IV. Whether Mississippi Code Section 15-1-69 is applicable.
¶31. Lastly, Meeks argues that the savings statute under
if any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form . . . the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit . . . .
¶32. However, this Court clearly has held that dismissal of an action for failure to serve process under
IV. Federal Preemption
¶33. Hologic argues that, even if the SAC is valid, Meeks’s claims against Hologic are federally preempted. Because both the FAC and the SAC were properly dismissed, a discussion of the federal preemption issue is unnecessary.
CONCLUSION
¶34. Meeks filed her SAC in violation of
¶35. AFFIRMED AND REMANDED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE AND COLEMAN, JJ., CONCUR.