Mississippi Civil Practice - Abbott - Spring 2011
Table of Contents
I. Introduction ........................................................................................................................................................ 1
A. Intro - Structure of the Court System ......................................................................................................................1
B. Intro - Statutory Provisions........................................................................................................................................4
C. Intro - Uniform Chancery Court Rules ....................................................................................................................6
D. Intro - Uniform Rules of Circuit & County Court .................................................................................................7
II. Jurisdiction Over the Person (long arm materials) ............................................................................. 8
III. Jurisdiction - Over the Thing .................................................................................................................... 13
IV. Jurisdiction - Over the Subject Matter ................................................................................................... 15
V. Common Law v. Equity Jurisdiction ......................................................................................................... 17
VI. Venue of Actions ............................................................................................................................................ 20
VII. Parties to the Action (P2A) ...................................................................................................................... 26
A. P2A - Real Party in Interest & Subrogation ....................................................................................................... 26
B. P2A - Joint & Several Liability................................................................................................................................. 27
C. P2A - Legal Disabilities .............................................................................................................................................. 29
D. P2A - Foreign Corporations..................................................................................................................................... 29
E. P2A - Mass Actions, Bills of Peace, & Interpleader .......................................................................................... 32
VIII. Commencing the Action ........................................................................................................................... 33
A. Commencing the Action - Types of Service & Service Mechanics .............................................................. 33
B. Commencing the Action - Time Limit, Ways to Serve, & Waiver ................................................................ 35
C. Commencing the Action - Rule 81(d) ................................................................................................................... 37
D. Commencing the Action - Various Statutes, Computing Time, Other Service, & Misnomers .......... 38
E. Commencing the Action - Service by Publication & Substituted Service ................................................ 39
IX. Pleading, Motions, & Default Judgments .............................................................................................. 41
A. Pleadings, Motions, & Default Js - 1: Drafting & Answering a Complaint................................................ 41
B. Pleadings, Motions, & Default Js - Pretrial Motions ........................................................................................ 43
C. Pleadings, Motions, & Default Js - Bill of Exceptions, Sanctions, Mistrial, & Continuance ................ 45
D. Pleadings, Motions, & Default Js - Summary Judgment ................................................................................. 47
E. Pleadings, Motions, & Default Js - Trial & Post-Trial Motions ..................................................................... 48
F. Pleadings, Motions, & Default Js - Default Judgment, Counterclaims, & Cross Claims ....................... 50
X. Discovery ........................................................................................................................................................... 51
XI. Juries ................................................................................................................................................................. 55
XII. Statute of Limitations................................................................................................................................. 56
I. Introduction
A. Intro - Structure of the Court System
 (1) Justice Court - Created by § 171 of Miss. Const. of 1890
 Note: important to note that some courts are created by the legislature and some created by the
Constitution
 Previously called ‘Justice of the Peace’ or ‘JP’ court.
 Plagued by inadequate qualification requirements (up until 1975 only had to be +25 and a resident of the
jurisdiction)
 Now [after const. amend.] must have high school diploma (or GED)
 This constitutional amendment also allowed the legislature to modify the jurisdictional amount
 Current jurisdictional amount in civil courts is $3500 and down (see § 9-11-9)
1
 Court also handles misdemeanors on the criminal side
 Appeals are trial de novo you get 30 days (contrary to what the statute says -- the rule controls)
 (2) County Court - Created by legislature in § 9-9-21 under the authority of § 172 of Miss. Const.
 Note: may or may not exist in a given county (counties must decide they want the court and they must
also meet the requisite requirements of population, etc.)
 19 Counties have county courts. Counties can petition the legislature for creation of a county court
 Civil jurisdiction is $200,000 and down (all the way concurrent with justice court to $1) (See 9-9-21)
 Also has concurrent jurisdiction with circuit court and chancery court in matters of equity (although it
is rare it will deal with something ordinarily in chancery)
 Abbot Rule of Thumb: If you bring something to the county court that is really a chancery matter typically
the county court judge will probably express disinterest in you clogging up his docket (may be better just to
go on to chancery b/c a disgruntled judge makes for an unhappy claimant)
 Sits with a jury
 Same requirements for judge qualification as circuit court judges
 Bifurcation (each county/judicial district will have two of these [multiple districts in county possible?])
 (3) Circuit Court (at law -- generally cases seeking money damages)
 Handles all criminal matters and [?]
 Constitutionally created by § 156
 Court of all encompassing plenary jurisdiction: has jurisdiction of all matters not vested by the
Constitution in some other court (only other constitutional ones are chancery and justice)
 So you can assume your case is probably in circuit court unless §§ 159, 171 carve out of it
 Right to jury trials in this court
 Elections
 4 year terms
 22 circuit court districts
 For multiple counties in one district, there is no actual “district” but the judge will move around
and sit for each county as the Circuit Court of a specific county (they “ride the circuit”)
 Some counties are split into multiple districts and they are treated for legal purposes as two
different counties
 (4) Chancery Court (in equity)
 Judges called chancellors
 Must be 26 years old, practice for 5+ years, and live in district for 5+ years
 Limited Subject Matter Jurisdiction:
 All matters in (1) equity, (2) divorce and alimony, (3) testamentary and administration of estates,
(4) minor’s business, (5) cases of non-compos mentis, & (6) all cases of which the said court had
jurisdiction under the laws in force when this Constitution is put in operation (§ 159). Plus title
matters [and some others] (§ 160)
 Constitutionally created by § 159 (memorize the list and see also § 160)
 There is no jury (this is why this bifurcation can become so contentious) with a small exception for will
contests
 Also, chancellor may empanel an advisory jury (its decision isn’t binding) although this almost
never happens
 Elections
 4 years terms
 20 chancery court districts
 For multiple counties in one district, there is no actual “district” but the judge will move around
and sit for each county as the Chancery Court of a specific county
 Generally Applicable Things
 No jurisdictional amount in circuit or chancery
 Formal Court Terms:
 We have formal court terms for all of the courts in the state for when they will be in session
 Circuit courts may also have ‘special’ terms (but this is a big expense b/c of the task of
empaneling a jury)
2
 Chancery also has formal court terms but not a big deal b/c having a ‘special’ session is easy
w/o the need for a jury
 Vacation: Period b/t formal court terms is known as ‘vacation’
 Not much significance in circuit (merely means not in session)
 For chancery the vacation time is very important b/c this is when judges handle vacation
matters (including ex parte matters and other things where there is only one party)
 (5) Supreme Court - Created by the Constitution
 9 justices elected for 8 year terms (all other judges elected for 4 year terms)
 Must be 30 years or older and serve a number of years [as a resident or as an attorney?]
 Mystery: generally argue before a panel of 3 justices but all 9 sign off on the opinion released
 Claimed to be overworked and asked for help - Thus came the Court of Appeals
 Appeal Procedure
 MSSC gets all cases appealed and decides which it wants to send to COA
 For example all workers comp go to COA (and lately many domestic matters go also)
 (6) Court of Appeals - Legislature created in 1995 under authority of § 172
 There are 10 judges elected for 8 year terms (2 are elected from each of the original 5 congressional
districts, although we only have 4 districts now)
 Note: Hierarchically, situated under the Supreme Court
 All appeals go to the Supreme Court and it chooses which cases to send to the Court of Appeals
(terminology: case was deflected to the Court of Appeals)
 If disgruntled you can seek writ of certiorari from the Supreme Court, which can be granted by [vote
of] 4 justices
 All their opinions are published and law of the land so long as not conflicting with MSSC (although
originally were not published opinions)
 Misc. Court Structure Notes
 Administrative Office of Court
 Created along with the creation of the COA
 It monitors what is going on with the judges of the state and keeps track of what’s going on
 Conducts studies and makes recommendations for MSSC to make rule changes, etc.
 See also AOC Form 1 when you file a lawsuit
 Appeals Process
 From Justice Court
 Note: W/o ability to appeal this court might frequently be unconstitutional (sometimes crazy
outcomes)
 Process/Order
 (a) If there is a county court it must be taken to county court
 From lower courts you have 30 days in which to appeal (by URCCC 5.04, but contrary to
statute)
 (b) If there is not a county court you go to the circuit court
 Ignore statute that says you can get a writ to appeal directly to the circuit court (prob never
happens)
 On appeal you are entitled to a trial de novo
 From County Court
 Also covered by URCCC 5.04 giving you 30 days to appeal
 ‘Law’ appeals go to circuit court
 This is your typical type of appeal (compose the record, post bond, file briefs)
 Circuit judges are busy trying cases and don’t like getting appeals in there courts
 Nearly every appeal continues on to MSSC (because basically you have already fulfilled the
requirements)
 Appeals from county court can end up taking a long time!
 Statute says there must be a constitutional question certified by the circuit court judge or
MSSC [?]
 ‘Equity’ appeals go to chancery court
3
B. Intro - Statutory Provisions
 MS Code of 1972 Statutes Overview
 Recompilation last took effect in 1972
 Very important and often a smart place to start researching
 See definitional chapter in § 1-3-1 et seq.
 Remember that both minors and infants are anyone under 21.
 Remember NCM (non compos mentis)
 § 9-11-9
 Sets justice court amount in controversy
 Brown v. Vance - Old fee system was unconstitutional so now there is a salary method enacted
 Justice Court Statutory Provisions
 Is the Justice Court a court of record?
 § 9-11-15 - Although there is no provision of a court reporter, justice court is still a court of record w/
power to fine & imprison, hold people in contempt, and to issue subpoenas
 Typically no need for a court reporter b/c your appeals are trial de novo
 § 9-13-32 - Any attorney in a proceeding where there is no provision for a court reporter may at his
discretion have the proceeding recorded (you must pay for it and can only be used for impeachment)
 I.e., you might want to record some criminal testimony for a later civil suit, or you might want to
record what the justice court judge is doing [his misconduct?]
 Note also the Uniform Justice Court Rules
 § 11-9-137 - A judgment on the merits in justice court operates as res judicata / claim preclusion
 § 11-51-81 - All justice court appeals are to the county court (unless no county court, then circuit court)
 § 11-51-85 - Appeals from Justice Court - This 10 day limit is not correct and the statute has never been
amended after Uniform Rule 5.04 (setting 30 day limit)
 § 11-51-87 - Record in justice court is merely the docket
 § 11-51-93 - This statute is misleading (says you have 6 months to remove the case to circuit court on writ
of cert.) but don’t use this. Why? There is no record besides the docket entries and even if you record it
then it isn’t a record but merely for impeachment
 County Court
 § 9-9-21 - Jurisdiction of County Court
 Jurisdiction concurrent with Circuit and Chancery Courts for $200K and down (and the equity branch
is rarely used in County Court)
 Exclusive County Court Matters: Where there is a County Court then it will have EXCLUSIVE
jurisdiction over eminent domain, partitioning, and unlawful entry and detainer (so ejection
proceedings also?)
 But if there isn’t a County Court then it goes to the Circuit Court, but they are sitting as a Special
court of eminent domain and there are only 10 days to appeal from that (§ 11-27-29)
 So apparently even though it is physically in County Court, you are really sitting as a Special court
of eminent domain
 § 11-51-79 - Appeals from County Court
 Correctly amended to say 30 days to appeal, but remember that the rules control
 § 9-9-27 - Transfer
 Circuit Court on criminal side can transfer some criminal matters down to County Court
 § 9-9-35 - Transfer for Crowded Docket
 A Circuit Court can assign cases from its overcrowded docket to the County Court
 § 9-9-19 - Term of County Court
 General
 § 11-9-3 - Venue
 Court of Appeals - Remember it is statutorily created
 § 9-4-11 - COA may sit in other locations around the state
 But remember that MSSC cannot b/c of the limitations in the Constitution
 Rules of Court Lecture
 This is somewhat about the pecking order
 Organization/Hierarchy of Controlling Rules (Top to Bottom)
4
 US Constitution
 Miss Constitution of 1890
 Miss. R. Civ. P. took effect in 1982
 Statutes
 How we got the rules
 For a long time all the rules of practice & procedure were made by the legislature
 This was a failure most of the time (messy and inefficient)
 MSSC frequently “implored” the legislature to make the changes to no avail
 Around this time the Federal Rules were taking hold deeply
 Newell v. State (landmark decision)
 Facts: Newell was charged with attempted murder. Jury didn’t get proper instructions from either of the
parties and the Judge couldn’t remedy this b/c the statute didn’t allow him to issue jury instructions
 Rule: MSSC has inherent authority from the Miss. Constitution on separation of powers to promulgate
the rules of practice and procedure for the courts of Mississippi
 Reasoning:
 The statute was unconstitutionally unworkable
 Where the legislature’s law is harmonious with the Court’s rules, then they will cooperate
 Perhaps because the legislature controls the budget and financing of MSSC
 Notes:
 Legislature took this poorly and passed a rule making act that purported to vest the final rule
making say-so in the legislature
 They created the “Proposed Mississippi Rules of Civil Procedure” and sent them to MSSC
 There was a very heated debate over all this
 MSSC drafted numerous amendments and sent it back to the Rule Making Committee
 This process got killed a couple times and appeared to be going nowhere
 In 1981 MSSC entered an order adopting the Miss. Rules of Civil Procedure (they adopted the
original proposed rules) citing Newell v. State
 This happened while the Legislature was out of session (and they were pissed)
 The order said that these rules would control over the statutes
 Legislature passed another rule making statute and said the Legislature must review proposed rules
 Ultimately the Supreme Court waited until the session ended and then sent out a letter (p. 35)
telling all the judges of the state that the Rules enacted in 1981 were the rules to be followed
 Remaining Issues
 There are some things to which the code sections supersede the rules as enumerated in MRCP 81
and some other places (ex.: wills & estates) (MRCP 81, 82, 84, [83?])
 Also where there is no rule on point, then the statute controls
 Rules reconciliation act repealed hundreds of statutes to try and increase consistency (but there are
still issues)
 EXAM: Basically must know all the rules and be able to tell when they conflict with the statute
 Sources of Law Overview
 U.S. Const.
 Miss. Const. of 1890
 Miss. Rules Supersede Miss. Statutes
 Tier 1
 MRCP of 1982 and taking effect in 1982 (they supersede any conflicting statutes)
 Rule 81: Applicability of the Rules (essentially a number of areas where it is better for the
legislature to make the rules)
 Reference this list while studying
 Family law, wills & estates
 These basically reverse the normal order of things
 Also things like replevin?
 Rule 82: All things concerning venue will be governed by statute (unless the rule says
otherwise)
5

 Rule 83: Local Court Rules
 The conference of judges may promulgate “uniform rules”
 Also details the rule for approval of the rules
 May be sent to the advisory committee, but at the least must be approved by MSSC
 Miss. Rules of Evidence Promulgated in 1986
 Miss. R. of App. P. - Old rules for Supreme Court Procedure were reworked and made into these
rules in conjunction with the creation of the Court of Appeals
Tier 2
 Uniform Rules of Chancery Court
 Uniform Rules of Circuit and County Court
 Local Rules
 Local rules must be approved (in the old system their was no approval = a hodge-podge)
 Rule 83 seems to suggest the local rules would take precedent over a statute!
 Watch out for the local rules (Chancellors used to love their little fiefdoms)
 Standing Order: They can issue a standing order which has the same effect as local rules
 Check for them and you better comply with them or you can get your client burned
C. Intro - Uniform Chancery Court Rules
 Uniform Chancery Court Rules (UCCR)
 General Goal, try to learn all the rules at some point
 1.01 - Proceedings must be orderly and dignified
 How to address the judge (stand-up / your honor / may it please the court)
 1.02 - Officers must be present in court
 Sheriff, Clerk (or someone competent deputy), and court reporter
 1.06 - Assignment of cases (relatively new rule - cites Newell as it supersedes a statute)
 To guarantee that assignment of cases to judges is random
 1.07 - Presentation to other chancellor of matter when relief denied is prohibited
 Request for an injunction or TRO w/o notice that it is denied by one chancellor, well you cannot then go to
another chancellor and ask them
 On ex parte & emergency matters you don’t get assigned a judge, so pick a good one the first time
 1.08 - Withdrawal of Counsel (!!!)
 A lot easier to get into a case than to get out of it
 To get out you must get permission (leave of court) to withdraw
 1.10 - Discovery (we’ll talk about it later, but there are local rules re: discovery deadlines)
 1.12 - Electronic Media Coverage (recent)
 Points to the rules that have been adopted elsewhere having to do w/ cameras in the courtroom
 Two Discussed Together
 2.02 - Pleadings must be filed before presented
 3.01 - Vacation business / rules of precedent
 Example: Lafayette is in the 18th District (Encompassing: Marshall, Tippah, Benton, Lafayette, and
Calhoun)
 Example, if you practice in Lafayette, but the chancellor is in Marshall and you are going up there, then
2.02 says you have to bring the court file or that you file the things with the clerk first
 Okay so this rule says you have to file your pleading, and another rule says you have “check-out”
the court file and bring it with you
 Vacation times in chancery court are pretty busy (not in circuit b/c of jury)
 Ex parte matters (no one on the other side opposing you but you need an order/judgment from the
chancellor) are handled during vacation time
 Rule: Basically you have to bring the court file with you or have the things filed with that court
 How do you find the Chancellor?
 (1) Wait around for a term of court to commence, or
 (2) Show up during a vacation period and wait in line to see the judge
 3.05 - Copy of exhibits
6






 Will be covered probably in trial practice class
 Example: Case dealing with a $100K promissory note and you want to introduce it into evidence, then you
don’t want it to be stuck in evidence
 Introduce the original and then ask if I may supplement the original with a copy
 Federal court you often do this as a pretrial conference
3.06 - Only one attorney for each party may examine a witness (prevents tag-team style questioning)
3.09 - Agreements of counsel
 Oral Agreements recorded by the court reporter
 All other agreements must be recorded in writing and filed w/ the court (kind of a pain / lot of trouble)
 Screw-Me-Once Rule: Most att’ys won’t break their word; if they do once then don’t trust them again
 After that you will then go through the trouble of getting it in writing and filing it with the court
3.11 - Argument of counsel
 Closing arguments in chancery court (and sometimes in Circuit where there is no jury - Bench Trial)
 The chancellor may dispense with closing arguments
 Good idea to ask the chancellor/judge early-on whether they want closing arguments or not (otherwise
they may merely ask for written briefs)
 Fairly common in chancery court (“Whew, I’ve heard enough” -- Chancellor)
4.01 - Findings by the court
 See also MRCP 52 (bench trial ‘may’ (‘shall’ on request))
 Findings of Fact & Conclusions of Law
 Utilized in bench trials
 State Rule makes it optional for the court (chancery and circuit) to make findings of fact & conclusions of
law, but shall make them if requested by a party
 But FRCP 52 requires that findings of fact & conclusions of law be made in bench trial situations
 Some areas of law require findings of facts
 Tricon Metals v. Topp, 516 So. 2d 236 (Miss. 1987)
 Rule: You don’t have to have findings of fact & conclusions of law, but if the case is one of
substantial complexity then it is error to not have findings of fact and conclusions of law
 Also in divorce proceedings regarding division of property
 There’s a Catch: When you ask for these, the Chancellor will often also order the parties to both submit
proposed findings of fact and conclusions of law
 Note when these are adopted wholesale by the chancellor, MSSC doesn’t give full deference because
the chancellor just copied them
 If you Lose on Appeal: If there is no finding of facts and conclusions of law then the appellate court may
likely say they are going to give deference to all the findings of fact as purportedly being in favor of the
party who won
5.04 - Judgment must be submitted to opposing counsel and chancellor . . . when
 When chancellor makes announcement of the award in a case, the winning attorney will be the one who
drafts the judgment and submits it to the chancellor and to the other side for review of form only
 Jury Trials: have a judgment already drafted-up (for defendant it should say not guilty etc.; for plaintiff you
leave a huge blank)
 It is also this way in Miss. Federal Courts
 By having your judgment ready you can get it approved at that moment by the opposing counsel and get the
judge to sign it
 Circuit Court: The other party could only object to it as to form, and the judge would hear that
objection, so more efficient to do this all at once
 Chancery Court: Frequently can’t predict all the rulings in Chancery, so it is hard to know precisely the
details that the judge will rule upon (thus may have to prepare it later)
 Entry of Judgment: Very important to get the final judgment signed by the judge and file it w/ Clerk
7.02 - Return envelope must be enclosed (deals w/ some of the mechanics/logistics)
 Has to do with mailing matters to the chancellor instead of actually going and filing them
D. Intro - Uniform Rules of Circuit & County Court
 Uniform Rules of Circuit and County Court (URCCC)
7
 1.01 - Abbreviation is URCCC
 1.04 - Same as to media coverage (there are some rules for photo and media coverage)
 1.05 - Information that should be on each pleading and motion:
 Name, address, office phone of the attorney who will try the case (even if the pleading is prepared by
someone other than who will ultimately argue -- the arguer must have his info on there)
 Add to Rule: Also must put your Mississippi bar number (all pleadings in federal & state)
 1.05A - Random judges assigned to cases
 1.06 - Corporation as a plaintiff must be represented by an attorney (no Corp. pro se)
 1.07 - Signing of bonds by officer of court
 No officer of the court may sign bond of any kind in or to any court of this state
 I.e., you cannot sign bond as an attorney at law (which is an officer of the court)
 1.14 - Local Practice (local rules (need MSSC approval) & standing orders)
 Look for standing orders, they look like local rules and tell you to do this that or the other
 2.04 - Duty of a Movant
 2.05 - Trial Briefs
 Good advice to prepare a trial brief for every case you try
 Issues may arise during trial and if you have anticipated them then you have the arguments and law
already there and ready to be used.
 State Court: Not filed, but you must simultaneously give your opposing counsel a copy
 Federal Court: file ahead of time
 3.14 - Note Taking by Jurors (Brand New)
 Judge may allow jurors to take notes
 4.03 - Motion Practice (return to on motion section)
 4.04 - Discovery Deadlines and Practice
 Changes are likely pending to remodel like federal practice
 5.04 - Notice of Appeal
 Appeal from a lower court to the circuit court
 Gives you 30 days to appeal (contrary to what incorrect statute says)
 Criminal Matters Not Covered in this course
II. Jurisdiction Over the Person (long arm materials)
 Jurisdiction Over the Person - Long Arm Statute
 Hypo (bar exam type):
 Facts: Person from Jackson County named Joe Plaintiff, took his family out west for a vacation. Arrives in
Newport, OR, and meets a shop-owner named Bill Artisan (Bill crafts driftwood into items). They purchase
a lamp from him. They pay $50 then, take the lamp, and promise to send $50 from Miss. Lamp catches fire,
burns down house in Miss. Joe files a complaint in the Circuit Court of Jackson County for $5 Million. One
way to get service is for the complaint to be sent via mail to Bill Artisan
 Jurisdiction:
 Two Tiered Analysis:
 1) Analyze whether there is jurisdiction under U.S. Const. - 14th Amend Due Process Clause
 Cannot be brought unless they have minimum contacts with the forum state, and such lawsuit
does not offend traditional notions of fair play and substantial justice
 2) Whether the state’s long-arm statute reaches that far
 § 13-3-57
 Options
 He committed a tort in whole or in part
 He also might come within the purview of the contract prong
 Defense Response:
 He could make a special appearance to challenge Personal Jurisdiction
 MSSC still calls it “special appearance”
 He must preserve his challenge to personal jurisdiction in order to preserve his appeal (i.e.,
Personal Jurisdiction can be waived)
8





No response then he may face a default judgment, which could be enforced under the Full Faith &
Credit Clause
 At this point Bill would make a collateral attack (ie: Miss. never had jurisdiction to begin with)
 Strategy/Risk: If he makes a collateral attack at home in OR then it is an OR judge, not a Miss.
judge, deciding whether there was personal jurisdiction.
 Risk though is that you have “put all your jurisdictional eggs in one basket”
Miss. Code Ann. § 13-3-57
 History:
 Until recently we only had a single criterion (doing business in Mississippi), but was amended in 1960s
to include torts and contracts relating to the state
 Three Prongs
 1) Doing Business
 2) Tort: Any nonresident who shall commit a tort in whole or in part against a resident or nonresident
of the state of Mississippi
 3) Contract: Any nonresident who shall make a contract w/ a resident of this state to be performed in
whole or in part in Miss.
Tort Prong
 Dawkins Case (5th Cir?)
 First case interpreting the amended § 13-3-57
 Facts: Products liability case where hot water heater caused a fire.
 Held: No Miss. case on point yet; They followed plain language of the statute (tort in part in state)
 Smith v. Temco
 First MSSC case interpreting the amended § 13-3-57
 Facts: Products liability re: a space heater that caused a fire
 Held: Tort isn’t complete until the injury has occurred, and getting injured in state is part of the tort
Contract Prong
 Miller v. Glendale Equip.
 Facts: Miller ordered a tractor that came from Ohio over the telephone (contract) and then faulty
equipment was delivered
 Telephone negotiations
 $21K check mailed to Ohio
 Unclear whether payment is made when the check is sent, received, or drawn-upon -- but you
can specify this contractually!
 Equipment delivered to Miss.
 Obviously performance here of part of the contract & that performance occurred in part in Miss.
 Rule: Contract performed in part by any party in the State of Miss.
 Start contemplating the long-arm statute at the contract negotiation stage
 Held: Landmark interpretation of contract provision in long-arm statute (pretty easy case)
 Note: Some states fine-tune the performance aspect of where a contract occurred, but Mississippi tends
to lump everything in all together
 Typically delivery is made with a common-carrier, so specify in the contract issues that help you
jurisdictionally
 [So the delivery wouldn’t be by D in Miss, but by common carrier in Miss? Specify that you
would have jurisdiction / consent to PJ / Forum selection?]
Return to Bill Artisan Hypo:
 § 13-3-57 - Long-arm statute
 Began w/ doing business in Miss
 1964 Amendments added torts & contracts prongs to the long-arm statute
 Two-Prong Analysis: State Long-Arm Statute and 14th Amend Due Process Clause
 What can Bill Artisan do?
 1) Make a 12(b)(2) lack of jurisdiction special appearance
 If they find they have jurisdiction, then he must stick around and defend the suit
 2) He could do nothing and just make a collateral attack later on the jurisdiction of the judgment
9
 Knight v. Woodfield, 2011 WL 32472 (Jan 06, 2011)
 Facts: P was a resident of Long Beach, MS. D was a Louisiana resident. Woodfield’s wife was texting and
calling Mr. Knight in LA, so Woodfield sued him for alienation of affection and had him served over in LA.
 Procedure: Knight showed up and made a special appearance
 Reasoning:
 D argued there was no tort committed in Miss. and that this would violate D’s right to Due Process
 Court argued that b/c the messages were directed to Miss., a tort was being committed in part in Miss.
 Also reasoned that there were minimum contacts and the only one who would be offended would be D.
 Held: There was personal jurisdiction here under the torts prong
 Notes:
 Woodfield could’ve sued Knight in LA (or had PJ there at least)
 But, hardly any states recognize the tort of alienation of affection (Miss. does, but LA doesn’t)
 Long-Arm Statute - Contracts
 Overview
 Easy to bring a contract case in under our Long-Arm statute, in part because our court has never
“parsed” the various stages of entering into a contractual relationship
 Forum Selection Clauses
 Additionally, language in the contract as to whether the contract is to be performed can be
important in deciding where there will or will not be jurisdiction
 You could slip something into the contract and reserve yourself a favorable forum
 Shackleford v. Central Bank of Miss.,
 Facts: Nonresident from Georgia signed a guaranty that was signed in Ga. but executed in Miss. where
it was received.
 Held: There was jurisdiction because the contract was performed in part in Miss.
 Forum Selection Clauses
 Burger king v. Reczowitz, 462 85 Le. 2d (1985 SCOTUS decision)
 Reference Civ Pro I notes
 Held in part that the Court of Appeals failed to give enough credit to the contract provisions
themselves, which established minimum contacts with the forum selected in the contract
 Telcom Mgmt. v. Waveland Resorts, 782 so 2d 149
 Titan Indemnity v. Hood, 895 So. 2d 138 (Miss. 2004)
 Facts: P sued Titan Indemnity and won $82 million verdict.
 Reasoning:
 There was boiler plate language that said the forum selected was in Texas
 Held: The court held that these were two sophisticated business persons who should have been well
aware of what they were signing so the forum selected in the contract was enforceable
 Latest Mississippi case on Forum-Selection Clauses
 Long-Arm Statutes: Tort / Libel — Edwards v. A.P.
 Facts: Newspaper accidentally libeled individual in Miss. with a LA paper that showed up in Miss. The
Paper argued that under single publication venue rule the injury of the tort didn’t occur in Miss.
 Reasoning:
 Forman v. Miss Publ’rs Corp: P was libeled by Clarion Ledger article in Sunflower Miss. Clarion
Ledger didn’t want to be sued in every county in Miss., so the court adopted the single publication rule
that gives a single venue location
 Held: Fifth Circuit held that Miss. would not have wanted to mix-up their Venue & Long-Arm Statute law,
and that they would not apply the single publication rule to the tort prong of the Long-Arm Statute
 Note: We will return to this to discuss the venue issue, which was discussed by citing Forman v. Miss.
Publishers Corp.
 Specific & General Personal Jurisdiction — Arrow Food Dist. v. Love
 Facts: Resident of Miss was killed in a car wreck in LA, when he collided with a LA Corp’s truck that was
driving around down there in LA. The truck took deliveries regularly to Miss.
 Rule:
 Long-Arm Statute:
 No contract at issue here
10








No tort in Miss. occurred
Doing business? Yes (but this is a fact question so you’ll have to perform discovery on the
jurisdictional issue)
 Specific v. General Jurisdiction
 Specific is being sued for a thing that is related to your presence in the state
 General is being sued for anything b/c you have substantial contacts with the forum state
 Held: There was jurisdiction b/c D had so many contacts w/ the state from doing business there
Aycock v. LA Aircraft Inc.
 Facts: There was an aircraft crash and P wants to sue in the state of Miss.
 Held: There was personal jurisdiction b/c LA Aircraft was engaged in substantial business in Miss.
 Notes: The Statute has since dropped the language noted in the last paragraph requiring the cause of action
be incident to the business activity [What to make of this? Inconsequential?]
Rittenhouse v. Mabry
 Facts: P (Rittenhouse) was from Desoto County and she went to see doctor Wardlaw in Tenn. at his office
in Methodist Hospital for a GI check. He sent her to Dr. Mabry, who gave her an enema that wrecked her
stomach. She brought suit in Miss. Federal Dist. Court
 Procedure: Ds showed up and made a 12(b)(2) motion for lack of jurisdiction (note P could have easily
sued in Tenn., but the statute of limitations (SOL) had already run!)
 Methodist Hospital settled out (have hospitals in Miss. / sufficient presence for general jurisdiction)
 Reasoning:
 For Mabry there was no contract (nothing in the contract about taking laxatives) and also there was no
tort in Miss. b/c ongoing injury/suffering doesn’t qualify as a tort occurring in Miss. [i.e., it differs from
the injury itself occurring here (heater fire)]
 For Mabry there was also no business taking place in whole or in part in Miss b/c his office was in
Tenn. and he didn’t solicit any patients from Miss.
 Held: There was no jurisdiction over Mabry and his Corp, but they did acquire personal jurisdiction over
Wardlaw by serving him personally in Miss. and b/c his Corporation was present in Miss. b/c of the way he
operated it (he was only employee and b/c it does business in Miss.)
 Note: There is a portion about general vs. specific jurisdiction on p. 62
Burnham v. Superior Court of Cal.
 If you voluntarily place yourself in a forum state and avail yourself of the benefits of that state, then you are
subject to service of process which can establish personal jurisdiction
Long-Arm Statute Review
 “Doing business” prong pretty much disappeared until issue of general vs. specific jurisdiction emerged
 Since there were sufficient contacts w/ Mississippi, the non-resident could be sued in Mississippi for
conduct unrelated to its presence in the state
 It takes more “contact” and you are likely to get into discovery so as to try and make a showing of
sufficient contacts
 Torts
 Libel - Remember we were introduced to the Forman Single Publication Rule, but that this rule was for
venue originally and the Fifth Circuit declined to cross-apply it to the Mississippi Long-Arm Statute
Hypo
 Student went to Hawaii and came back but received in the mail a note that a suit was being brought against
him for $4500 for a non-returned rental item.
 Might be okay to tell him to default (cost of flight), but they can come after you pretty easily and
file the default judgment
 Forum Non Conveniens: Gulf Oil v. Gilbert
 If it would be unjust and everything (many factors) points elsewhere and for some reason they have
equity [?], this can be used
 Has been used recently in some Mississippi cases
 Might also be wise to try to settle, but basically student is screwed
Full Faith & Credit Clause — Hertz v. Domergue
 Facts: Guy went to Nevada, rented a car, and then came back after never having paid for it. He was sued
and he didn’t respond so that a default was entered against him. Hertz brought the Nevada judgment to
11




Mississippi and filed it against him. There is now a judgment creditor and a judgment debtor. They will just
email a lawyer in Mississippi and get him to file the lawsuit.
 Rule:
 The “Act of Congress” Form
 Full Faith & Credit Clause
 See 14th Amendment Language on p. 65
 Fair play . . . inconvenience and expense of the nonresident . . . minimum contacts . . . substantial
justice
 Uniform Enforcement of Foreign Judgments Act
 Can merely take an authenticated copy of the judgment along with the “Act of Congress” form and
file it with the Circuit Clerk who will then notify the judgment creditor (also good to contact their
attorney as well and not rely on the Clerk) and they can then begin to execute (collect) w/in 20 days.
 If you have a defense as the judgment debtor you can raise it and get it heard
 You still have every right to bring and pursue a lawsuit
 This Unif. Enforcement of Foreign Judgments Act merely lets you bypass an actual trial in
order to enforce judgment
 Reasoning:
 Simple, easy lawsuit to file
 Merely file complaint demanding the amount & saying we have a certified copy of the judgment & a
completed “Act of Congress” form
Res Judicata & Personal Jurisdiction
 Because Mr. Domergue and the Student in Hawaii didn’t go defend their suit, then the judgment was good
on the Merits and they are barred from challenging it on the merits
 All you can argue in the collateral attack is that there was no jurisdiction for the lawsuit originally
 Paradox b/t Jurisdictional Facts & Substantive Facts:
 B/c long-arm statutes are based frequently on Contract or Tort w/ the non-resident
 So if there never was any tort or contract then there cannot be jurisdiction?
 You would be arguing there were no jurisdiction supporting facts by basically arguing there was no
substance to the claim (i.e., never was a tort or contract the long-arm jurisdiction could attach to)
 There is no easy answer to this “ticklish” issue, because we have an overlay of the jurisdictional and
merit-based facts
Galbraith & Dickens Aviation v. Gulf Coast Aircraft Sales
 Facts: Gulf Coast Corp was sued in Okla. by its insurer who claimed non-payment of ins. premiums. The
insurer-creditor took a default judgment and it was alleged that Gulf Coast had solicited the insurance
policy in Okla. The Insurer just sent the judgment down to Jackson County and the debtor showed-up and
swore that he didn’t solicit the policy (no one was there to challenge the debtor’s averments).
 Reasoning:
 This (and the next case) were probably some “home-cooking”
 The other side was never there and there was no record so the court just found for the present
challenger (the Mississippian)
 Develop a Record on the Original Default Judgment:
 Remember: it wouldn’t be hard to develop a record on the judgment at the original trial
 You should just put a witness or something on and get some testimony on the record
 There will be no cross-examination to worry about b/c the other side isn’t even present
 This record can then strongly bolster your default judgment you later seek to enforce
Temtex
 Facts: A debtor was in Rankin County and the Creditor to whom he owed money was in Tennessee. The
creditor took a default judgment in Tenn. The judgment was filed with the Rankin County Circuit Court
and Libby came in and swore that she was never present in Tennessee to sign the guaranty.
 Reasoning
 No record was sent down with the judgment which was streamline-filed (w/ Act of Congress form)
 This is P’s/judgment-creditor’s fault for not developing or sending a record, and not even showing up
Registered to Do Business = Personal Jurisdiction — Cowan v. Ford Motor Co., (5th Cir. 1982)
12
 Held: If a foreign corporation has qualified to do business in Mississippi (receiving their certificate of
authority to do business) then they may be sued in-personam over anything in Mississippi -- means you
wouldn’t have to use the long-arm statute
III. Jurisdiction - Over the Thing
 Jurisdiction Over the Thing - In Rem Jurisdiction
 Overview
 In-Personam
 Very important b/c if you have jurisdiction over the person, then you get a personal judgment
 Hypo: You have a $200,000 personal judgment against Abbott in Lafayette County
 What do you do?
 Try to collect (if he has insurance then it is easy)
 Execution (this is how you can force people to pay): you can attach Abbott’s:
 bank accounts (procedure where you put him under oath and he has to tell you)
 wages/paycheck
 personal property
 house?
 But Not: “Exempt Property”
 $10K for personal property
 Homestead: In Mississippi you can exempt up to $70K in your home value
 Florida has an unlimited homestead exemption
 Quasi-In-Rem
 Dealing with the court having jurisdiction over a “thing/res”
 Then you are dealing only w/ the claims of named defendants against the “res”
 Example: a suit to remove clouds on title/property
 In-Rem
 Court takes jurisdiction over a piece of property -- this is essentially a suit against the world
 So you serve by “notice” service in a newspaper -- but if you actually know where they are you
have to serve them regularly too
 I.e., if you are dealing with land, check the land records and find out who they are and then try
to locate and serve them -- if after diligent search you cannot find them then you can get away
with paper notification
 The chance that someone won’t be noticed by these methods is still high, but you must build in all
the safeguards you can
 Attachment Proceeding Recognized in Every State
 All states have a statute where if you have a claim against a non-resident absconding debtor, then if you
can find some “res” you can bring a suit against that non-resident by attaching the thing
 But Shaffer v. Heitner changed the use of quasi-in-rem suits and placed a limit so that you need not
only a res but also minimum contacts just as you would with an in-personam proceeding.
 Attachment in Chancery
 MRCP 64 - Extraordinary Remedies
 When you are dealing w/ these types of extraordinary relief, the MSSC says look at the statutes for
these remedies, not the rules
 SCOTUS set up a number of requirements that statutes must meet, so only those that have been
amended are now Constitutional (see comment to R.64)
 Miss. Statutes providing for sequestration have not been amended and are unconstitutional
 § 11-33-1 et seq. - These are unconstitutional
 Replevin actions, etc., still frequently used (even though it is questionable) where there has been a
conditional sale and the contract provides for the bank to repossess if you default
 Examples: Replevin & Attachment
 These types of “process” were issued by the court: writ of replevin and a writ of attachment
 This proceeding started by the sheriff coming out & seizing it (no due process/unconstitutional)
 Attachment at Chancery - § 11-31-1
13
 Has been rendered facially constitutional
Primarily deals with nonresidents (or an absconding debtor -- but primarily nonresidents)
 Dealing w/ a claim in Miss.
 What will trigger the statute is finding property in-state (a res) of the nonresident so that the court
can take possession of the property so we can enforce a claim against the nonresident
 In Personam - If the nonresident is sued w/ an attachment action (in rem), and the nonresident showsup then the court can have in-personam jurisdiction
 So Mississippi apparently doesn’t allow for a special appearance to challenge personal jurisdiction
over in rem
 See below: special “special appearance”
 § 11-31-2 - Application for order of attachment; determination
 Basic rules of what goes into your claim
 For these claims throw out your normal rules of pleadings -- these are special
 Must file a bill of complaint
 Must have a sworn affidavit and set-out a detailed statement of the claim (unlike a normal complaint)
 Must post security
 (3) Post-seizure hearing: must be granted immediately if the person comes in to challenge the
attachment
 This is a special “special appearance” b/c this is different than coming in on a 12(b)(2) motion
 So the nonresident can show up and challenge the jurisdiction of the suit on the res, but then if he
loses the special hearing he can leave w/o the court getting in-personam jurisdiction over him [?]
 § 11-31-3 - 11-31-11 - Review these; things like newspaper notice; etc.
 This is a useful tool not to be forgotten
 If you attach someone’s property this will give you some leverage over someone, but you forgo the
benefit of having a jury since you are in Chancery
 Tulane v. Cooley (landmark case for Miss. following Shaffer v. Heitner)
 Facts: Spouse taken to Tulane Univ. Hosp. from H’burg for treatment & subsequently died. Medical
malpractice/wrongful death suit brought against nonresident Univ. There were gate receipts from a Tulane
v. So. Miss. football game & unpaid medical bills from Cooley’s medical fund. These could be attached!
 Procedure: B/f filing the lawsuit you have to follow all the requirements of § 11-31-2
 A deputy will go to USM (and to the medical fund manager) and tell them that the “res” has been
seized and brought under the jurisdiction of the court
 Notice given to Tulane
 Then you can file the complaint
 You will go ask for an immediate post-seizure hearing and say there were not sufficient minimum
contacts to justify the attachment proceeding
 Where could you sue?
 You could sue in Mississippi, or you could easily sue in Louisiana (New Orleans) but you don’t wanna
 Could they have gotten in-personam general jurisdiction in Miss.? Perhaps, based on all the business
activities / contacts
 Rule: Under Shaffer v. Heitner you are now required to meet the Int’l Shoe requirements (minimum
contacts / personal jurisdiction test) for in-rem and quasi-in-rem proceedings
 Court was driven in adopting this rule by a problem where Ps were forum shopping states for favorable
laws, then using their attachment proceedings & finding it quite easy to seize a warehouse or some
property in a state  was forcing litigation in unfamiliar places having nothing to do with the injury
 Reasoning
 Tulane had a plethora of activity in Mississippi: sports activities, CLEs, students
 Tulane never registered to do business in Miss. (had they then they could be sued for anything)
 Held: They could be sued in Miss. under the attachment
 Tulane’s Defense:
 If they show up and defend they will be personally in court and liable for more than the “res”
 But if Cooley gets just the res (the $150K) it is just applied to the total claim (say it is $5 million)
 If Tulane doesn’t show up then Cooley could collect the “res” and then bring another suit in La.

14
 Hypo: Bubba Goes Ivy League
 Facts: Bubba applies to Harvard and they humiliate him by publishing. Could he Sue in Miss?
 There is a Tort in whole or in part
 The single publication rule doesn’t apply to getting personal jurisdiction
 Could probably get some minimum contacts if you really tried; advertising; recruiters
 Attachment in Chancery?
 Harvard’s “res” in Miss. - tuition paying parents; student loans owed to Harvard; any property.
 Harvard would appear and argue there are not substantial minimum contacts (but this is decided on
a case-by-case basis)
 In-rem / Quasi in-rem Review
 Remember, Rule 64 makes this type of case extraordinary
 Although there are four-to-five listed in Rule 64, but the Court says “Legislature, make all the rules for
these types of things.”
 Detailed fact pleadings, affidavit, post bond, etc. (many of these procedures brought about by
USSC cases in Rule Comment)
IV. Jurisdiction - Over the Subject Matter
 Jurisdiction over the Subject Matter
 Review
 Justice Court - $3500 and down
 Fixed by the legislature b/c of the Constitutional amendment
 County Court (not all counties have them)
 $200,000 - $200 = there is some concurrence w/ County Court
 Chancery Court - There is no upper limit on what you can sue for (similar to circuit court)
 Circuit Court - No upper limit of jurisdiction, [is there a lower limit? $200?]
 See Arant v. Hubbard
 Arant v. Hubbard
 The original amount in the Justice Court Constitutional Amendment was $200 (now $3500)
 § 9-7-81 - Not substantially amended since 1930s
 Circuit / Justice Court Concurrent Jurisdiction: Majority looked to this statute and said that the
Constitutional Amendment didn’t abrogate the statute, so the Circuit Court has concurrent
jurisdiction with the Justice Court from $3500 - $200
 Dissent thinks it should be repealed by implication
 So: If you have a claim for $2000 you may bring it in: Circuit Court, or County Court, or Justice Court
 Adams-Newell Lumber Co v. Jones
 Facts: Train was coming along and killed Jones’s cow. The cow was worth $150 but he also asked for
punitive damages that bumped the claim up to $2,750. Suit brought in Circuit Court
 Punitive for Amount in Controversy: You may include a punitive damages claim and get yourself
out of justice court and into circuit court.
 Rule: “In calculating the principle amount in controversy, you can include punitive damages.”
 § 9-7-85 - Remedy when P unreasonably jacks-up the claimed amount
 If you make a jurisdictionally sufficient claim, but the jury returns less than that amount  then if
there is proof the plaintiff knew or should have known that they wouldn’t make it into the
jurisdictional amount then the defendant can recover costs
 Attorney Fees
 American system, only get them when:
 (1) Contract provides for it
 (2) Punitive damages?
 (3) Statute provides for it
 Horton v. White
 Facts: White asserted a suit for $6K in County Court ($10K Limit at that Time). Horton counterclaimed for
$84K, and the jury awarded Horton on the counterclaim. Judge granted JNOV and took away award. There
were no appeals.
15

Horton then went to Circuit Court and brought (what was originally the counterclaim) the claim for
$84K, again. White argued this was barred by res judicata.
 There was no record strangely (not a damn thing was done with it [not transcribed] unless someone
appealed the case). So if you need the record (either for your case or for another case) you better order
it from the court reporter way in advance.
 Reasoning:
 If jurisdiction is attached and everyone is in good faith and thinks there is jurisdiction, and then later it
turns out that things appear to have not satisfied the jurisdictional amount then the court isn’t supposed
to dismiss on this account
 Held:
 There was no jurisdiction in the County Court over the counterclaim in excess of $10K
 Note: But now the jurisdictional statute has been altered so that the County Court’s jurisdiction won’t
be affected by any set-off, counterclaim, etc. See Miss. Code Ann. § 9-9-21.
 Note
 Court of Record: Circuit Court and Justice Court are both courts of record
 There is no court reporter in Justice Court unless you bring one.
 There is typically a court reporter in County Court
 Is the Statute amendment good?
 Well you may face different tactics/stratagems of having the counterclaim (if compulsory) brought
in County Court (Maybe things like jury size can play a role?)
 Jury Sizes [? verify?]
 County Court = 6 Person Jury
 Circuit Court = 12 Person Jury
 Concurrent Jurisdiction State & Federal — Lewis v. Delta Loans
 Facts: Truth in Lending Federal Claim brought in State Court
 Held: Unless jurisdiction is exclusively, expressly restricted to the federal courts then the claim may be
brought concurrently in State or Federal court
 Ordinarily can be brought in state or federal; The exception / more unusual occurrence is when claims
are restricted
 Notes:
 Federal Acts and What Court
 It is presumed that the Federal Claims may be brought as a general proposition in the Circuit Court,
because under our Constitution the Circuit Court is the court of general jurisdiction
 Other Permissible Federal/State Claims
 TILA; Jones Act (no limit on recovery); Fair Labor Acts; FELA (no limit on recovery and need
only a scintilla of evidence).
 Why One or the Other (why state or federal)?
 Well you may like the judge
 May get a better/different jury based on the composition of the jury pool
 Priority of Jurisdiction — Hancock v. Farm Bureau
 Facts: 3 car accident (Stewart hit by Hancock, and Hancock hit by Harrison). Hancock sued Stewart and
then signed a general release (releasing everyone in the world). Hancock tried to sue Harrison in the Circuit
Court, but as a defense Harrison raised the settlement as a defense. Hancock turned around and sued in
Chancery to rescind the release (Hancock said time-out and ran over to Chancery)
 Reasoning:
 We already have a case going on in one court and we can’t have it happening in two places
 Rule: The principle of priority jurisdiction is used here where a suit is first brought it one court, which then
has the authority to resolve the whole issue (first court has priority)
 Notes:
 Priority of Jurisdiction: What if two lawyers bring the same claim for a plaintiff in multiple courts in
different counties?
 Well you would make a motion to dismiss in all but the first court filed, or to hold the case in
abeyance, since it was already filed somewhere else.
16

If someone pulled a fast one on you and a default judgment slipped in, then you should argue it be
set aside b/c another court had priority of jurisdiction (citing this case)
 Could definitely have the same lawsuit filed in two (or more) states
 It basically becomes the race to the first state that reaches a judgment
 Principle of Comity:
 You should go to the 2d court & ask (beg?) as matter of comity to the 1st state & in the interest
of fairness and justice please hold it in abeyance until the other court reaches a resolution
 Defense lawyer’s worst nightmare: letting a plaintiff take a default judgment while you have the case
 Punitive Damages in Chancery — Tideway Oil
 Facts: [?]
 Issues: Can you claim for punitive damages in Chancery Court (a court of equity)?
 Reasoning:
 Something about if there is fraud then the issue gets muddier? Reference case.
 Held: Chancery Courts have the discretionary power to assess punitive damages under the same principles
as the Circuit Court when equity jurisdiction makes having the case there appropriate to begin with.
 Note: No Class Actions in Miss. - Case misleading suggests this is a class action in Chancery, but there are
no class actions in the State of Mississippi.
V. Common Law v. Equity Jurisdiction
 Equity v. Common Law Jurisdiction Overview/Introduction
 § 147 - Reversal of Judgment for Want of Jurisdiction
 Rule: No judgment of Circuit or Chancery shall be reversed solely on the ground that error was made
in determining whether there was equity or at-law jurisdiction.
 Before this amendment the SOL continued to run if there was no jurisdiction, so you could appeal
to MSSC and it could reverse for no jurisdiction and then the SOL might have run!
 Now: MSSC can’t reverse unless there are other grounds (& SOL tolls during this time anyway)
 Court of Equity
 § 159 Sets the Equity Jurisdiction of the Chancery Court, setting things that were historically based in
equity. See also § 160
 Court of Law
 § 156 Sets Circuit Court as our general court of law
 Biggest Difference:
 There is no jury in chancery court (which can rub against the § 31 right to jury trial)
 Most other procedural differences, however, no longer exist
 When you have a lawsuit where does it go?
 Well we face a divergence between what is “at equity” and what is “at law”
 1) Remedy Test: What is the Relief?
 At law you typically are seeking money damages
 This is usually pretty clear
 At equity you were often seeking in personam, injunctive relief, and title matters
 See § 24 of Mississippi Chancery Practice on library reserve (/Westlaw)
 All matters re: Fraud; Trusts; Reformation; Rescission; Judicial Foreclosure; Specific
Performance; Subrogation; Martialling Assets; Accounting; etc.
 But this is still not as clear as it might seem
 Even in states w/ a single civil court there is still a fight over equity jurisdiction b/c of the
ability to get a jury or not
 2) Statutorily Created Claims: For example we now have many statutory created claims that came after
the division b/t law and equity was formed, so it is a question of where it belongs
 Note the legislative body can distinguish which it would be, but not always
 3) Forms of Action: There used to be many historical “forms of action” and the rule now in Mississippi
and Federal Courts is that there is one civil action
 You can state as many claims as you have regardless of consistency (what rule is this?)
17

When you are looking at a pleading that is seeking many reasons for recovery, how do you sort out
all the claims and decide whether equity or at-law prevails (basically this is hard to sort out)
 Common Law v. Equity Jurisdiction
 Overview
 Chancery: Court in equity
 No jury
 Circuit: Court “at law” — Miss. court of plenary jurisdiction
 Jury
 § 147 - Reversal of judgment for want of jurisdiction
 If a case goes to judgment in chancery and it was [should have been?] “at law” (or vice versa) then it
cannot be overturned on appeal unless there is some other error
 Dichotomy of Equity/Law
 Historical Test - Remedies
 Are you seeking damages in personal injury? (at law)
 Are you seeking injunctive relief? (equity)
 Claims by Statute
 Unless the statute says jury/no-jury then the issue is complicated as to whether you get a jury or not
 Complicated By Single Pleading
 Now there is one civil action so we don’t have different pleadings that would indicate we are in an
equity matter (i.e., pleading for trover or replevin).
 Now we have a single civil cause of action: if you have 100 different claims, inconsistent as they
may be, you can bring them against a defendant in a single pleading (and no matter what defenses
you have you can bring them all as well too).
 Limitation to Mistake as b/t Law and Equity — Board of Levee Commissioners v. Brooks
 Facts: Eminent domain case brought in circuit court (appealed to circuit court?), but it had jurisdiction
granted to it in the Justice Court.
 Reasoning:
 This was not a cause of equity or common-law jurisdiction
 Neither chancery nor circuit had jurisdiction to hear this special case in eminent domain
 Rule: Neither of these courts may usurp the authority of the other when it is something beyond or outside
of the distinction b/t equity vs. at-law
 Notes:
 These types of cases [neither equity nor at-law] will not come up very often
 Different Examples
 Divorce was not a matter “in equity” at common law England (although § 159 creates jurisdiction
for this in Chancery  jurisdiction in Chancery was not in equity, but for something else
specifically enumerated)
 Injunctive relief for consumer protection in chancery
 Dissolution of limited partnership in Chancery
 Appeals from commissions go to Circuit
 Probate/Wills are for the Chancery Ct (§ 159)
 Violability of an Inviolable Right: Trial by Jury — McLean v. Green
 Facts: Personal injury suit of two minors brought in Chancery court. Chancery court assumed jurisdiction
thinking this was “minor’s business” under § 159. This was really just a money-damages lawsuit.
Defendant woke-up after the judgment and realized, “whoa, no jury?!”
 Reasoning:
 This was not “minor’s business” that is more when someone is acting as a ward or a guardian
 Chancellor may empanel a jury, but the verdict of the jury would merely be advisory
 Really only happens when there is a controversial issue and the chancellor is facing election
(“Whoa-is-me, my hands are tied -- the people have spoken . . . .”)
 Rule: The Constitution contains § 31 for “right to jury trial” just as much as it contains § 147, so they must
be construed together.
 Thus, if the case moves to a judgment then the jury trial right is lost
18
 Notes:
 D should have made a timely “Motion to Transfer to Circuit Court”
 U.S. Const. 7th Amend. (fed. right to jury trial in civil cases) has never been incorporated to the states
through the 14th Amend., so your only rock solid right is what State constitutions provide
 But 6th Amend. has been incorporated so for criminal trials you are safe
 NOTE: in County Court there is a six person jury and 5 may return a verdict [I need to reconcile these
little note at some point]
 Robertson v. Evans
 Facts: Motorcycle accident involving injured minors. D made a motion to transfer the case out of Chancery
into Circuit Court. Chancellor denied it. Under Miss. R. App. P. 5, D sought an interlocutory appeal
 Rules:
 In Mississippi (unlike federal) interlocutory appeals are allowed from time-to-time
 § 147 doesn’t restrict an interlocutory appeal from being transferred to the proper court
 If a motion to transfer to the proper court is denied by the trial judge, then you had better make an
interlocutory appeal promptly or risk a negative result due to § 147.
 Reasoning:
 It is a matter of judicial efficiency not to allow a case to be tried for whatever duration w/o D bringing
an interlocutory appeal and then to later transfer it for a full, new trial
 The interlocutory appeal needs to be immediately filed after the motion is denied
 Tillotson v. Anders
 Facts: Libel suit brought against newspaper by chancery clerk in the chancery court seeking $1 mil. in
damages and $8 mil. in punitive damages. Newspaper moved to transfer to Circuit Court, but chancellor
denied it on the grounds of this being (1) an accounting, (2) multiplicity of suits, and (3) a R.57 declaratory
judgment. D filed interlocutory appeal (thus MSSC may inquire if this is in the wrong court)
 Reasoning:
 This was not a suit for a complicated accounting, this was just a libel suit
 Also this was not a suit to prevent a multiplicity of suits
 Complaints/claims for declaratory judgments are jurisdictionally neutral (so Circuit or Chancery?)
 Rules:
 Where there is an independent basis for chancery jurisdiction on the face of the well-pleaded complaint,
then the chancery court can also hear and adjudge law claims under pendant jurisdiction
 Has been watered-down significantly
 This is still true, however when the case involves a big tangling of law and equity and D moves for a
transfer and makes an interlocutory appeal it will generally be granted (if MSSC grants cert.)
 When no motion + interlocutory appeal then you will probably stay in chancery
 Cases on Point
 Southern Leisure Homes v. Hardin, 742 So. 2d 1088 (Miss. 1999)
 Union Nat’l Life Ins. V. Crosby, 870 So. 2d 1175 (Miss. 2004)
 There were many claims of law/equity all mixed up
 Court transferred it to circuit and said that it is more appropriate for Circuit Court to hear
mixed-in equity claims, than for Chancery to hear intermingled at-law claims because the
circuit court is a court of general jurisdiction [Also b/c it has a jury?]
 This has been the trend in the last decade-or-so
 Suit for Accounting: Generally called a suit for a complicated accounting when deciding what the
damages are will require forensic accounting that the jury would be ill-equipped to handle
 Multiplicity: More like a situation where a factory is discharging into a river and 200 people were hurt.
D can have it brought in under chancery as one suit instead of having 200 potential suits floating
around out there
 Declaratory judgments are jurisdictionally neutral (not preferring chancery or circuit; look at the
content of the claim)
 Court also says we must construe §§ 31 & 147 together if an interlocutory appeal is not taken prior to
the court entering judgment
 Since this case was not in chancery jurisdiction (not exclusively carved out) then it must go to circuit
court as the court of general jurisdiction
19
 Held: This was really a suit about money damages for libel, not anything that should be in chancery court
 Note on Miss. Torts Claims Act:
 There used to be total sovereign immunity, but this rolled it back some and raised the amount of
liability from $20K cap to $500K cap.
 Legislature did not specify which court MTCA things go to
 Lawrence Cnty. v. Brister, 823 So. 2d 459 (Miss. )
 Facts: Legislature didn’t say which court would take it so chancellor assumed that meant the
chancery court
 Held: Divided MSSC but majority held this was wrong & that torts suits belong in circuit court
 All MTCA shall be in Circuit Court
 Also in MTCA cases against the state there is no right to a jury
 McClendon v. Miss. State Highway Commission
 Facts: Suit brought w/ 2 bases of equity jurisdiction and 1 of at-law damages; brought in the chancery court.
Some were settled out and then the chancellor said I don’t hear damages suits so I’m going to transfer this
out to Circuit. Judge declined jurisdiction. Appeal taken.
 Reasoning:
 If there was equity jurisdiction when the suit commenced & then later circumstances changed then the
court can retain jurisdiction
 Rule: If a court declines jurisdiction then § 147 doesn’t apply and you may appeal that decision.
 Abbot’s Rule of Thumb
 When P got this ruling he ultimately had to bring it back to the same chancellor who he had just proved
to be wrong and chancellors have a lot of discretion in their courts
 When a judge doesn’t want you in his court, go somewhere else if you can (he may cause you hell)
VI. Venue of Actions
 Venue Overview
 Venue is of extreme practical importance (Must be contemplated in 100% of cases filed)
 Recent Changes
 Many issues raised recently due in part to statutory amendments & changes as a result of tort reform
 Purpose:
 What county in Mississippi may your lawsuit be brought (82 counties, 10 of which have two judicial
districts = 92 potential venues in Mississippi)
 Rationale:
 Sometimes a county/district is just better for various reasons: more efficient judge, more generous
juries, less crowded dockets, etc.
 Venue Rules
 MRCP 82(b) - Except as provided by this rule, venue of all actions shall be provided by statute
 This goes back to the Newell v. State tension b/t MSSC & Legislature
 General Rule - If venue is proper for one defendant then it is proper for the rest of the defendants
(note: this gets tweaked)
 Leake County Coop. v. Barrett’s Dependents (frequently cited)
 Facts: Appeal from Workers’ Comp. case that was brought in the wrong county
 Rule: Jurisdiction connotes the power to decide a case on the merits, while venue connotes locality, the
place where the suit should be heard.
 Waiver: Unless D objects to venue then the issue may be waived (just like personal jurisdiction)
 Reasoning:
 Frequently the idea of where venue lies will not depend on the question of jurisdiction/venue but
on the type of defendant and what the statute/rule says
 Also, jurisdiction is a complex thing (not just the power of the court to hear the case), and includes
PJ, SMJ, and territorial jurisdiction
 Proper Way to Object to Venue
 Motion to transfer venue: Rule 12(b)(3) - Transfer for improper venue
 Bulk of Venue Litigation
 Primarily involves Circuit Court venue and the Circuit Court Venue Statute § 11-11-3
20
 There are special rules for chancery we will cover later
 We will be looking at the old and new (effective 2004) versions of § 11-11-3
 Classes of Defendants under Venue Statute
 Resident, individual defendants
 Domestic Corporations (Miss. Corps.)
 Non-residents: Individuals or Corporations
 Health-care Providers
 Old v. New Statute
 Old Statute
 Residents
 1) Resident, Individual D could be sued in the county where he could be found
 2) Domestic Corp. could be sued in the county of its domicile
 See FN1 in Flight Line: “For venue purposes, the domicile of a corporation is the county of its
principal place of business.”
 3) Venue would be proper in any county where a cause of action may:
 Occur, or
 Accrue
 Non-Residents
 4) There used to be a non-resident statute which has been repealed (§ 11-11-11)
 See Capital City below overruling Senatobia v. Orr
 This allowed you to sue a non-resident D and then drag everyone into P’s home county
 New Statute
 Residents § 11-11-3(1)(a) (segmentation is important b/c later sections cite this section)
 1) Resident, Individual D could be sued in county in which he/she resides
 “Could be found” language is gone from Circuit venue statute
 still present in Chancery venue statute but interpreted as not applicable?
 A resident, individual D can only be served w/in meaning of venue statute where they live
 If “tagged” somewhere, remember you still have to file a 12(b)(3) motion to transfer
 Note: If you had 5 Ds in 5 districts, then you (as P) have 5 venues!
 2) Domestic corporation could be sued in the county of its principal place of business
 3) Occur/Accrue language collapsed into simply: A county where a substantial alleged act or
omission occurred
 See Flight Line below (this language is essentially from of Flight Line)
 See also Burgess (History Prompting This Change) below
 This language has not been fully tested so we are not sure whether “accrue” arguments for
wrongful death might be still be plausible b/c the final event in a series of events leading to a
tort might be classified as “a substantial event”
 Non-Residents § 11-11-3(1)(b)
 4) If venue in a civil action against a non-resident D may not be found under subsection (1)(a), then
P may sue in P’s home county
 Only time P can now sue a non-resident D in their home county is when there is no other
defendant under (1)(a) that has venue. So only if everything happened out of state and there is
no Mississippi defendant
 Defective Products
 5) For Defective Products, venue is proper for defective products in any county where P obtained
the products § 11-11-3
 Health Care
 6) For health care providers of all sorts, the suit shall be brought only in the county where the
alleged act or omission occurred
 This tried to fix the ambiguity with “substantial event that caused the injury occurred” so that
this nails down a single location (place of care provided) as the place of venue
 Flight Line Inc. v. Tanksley (1st MSSC case to interpret “occur” in the venue statute)
21

Facts: Warren and Rankin County are at issue here (Warren had huge verdicts). Plane chartered and
loaded in Warren County to take equipment to Chicago. Principal place of business for Flight Line was
Rankin County (thus venue was at least proper here). Plane tipped over and equipment fell on Tanksley.
Tanksley sued in Warren County (place where plane was loaded)
 Remember, to appeal Flight Line had to make a timely 12(b)(3) motion to transfer
 Issue: Was venue proper in Warren County?
 Rules:
 If venue is proper when and where the suit is filed, it may not be ousted by later events (so absent
some type of fraud to establish venue — if the facts change then venue holds in the original place)
 Plaintiff has the right to select the venue when there are multiple choices
 I.e., 5 Ds from 5 districts, and injury occurring in a sixth district = six possible venues
 Accrue: COA accrues when the right to sue becomes vested (i.e., when/where the damage occurs)
 Occur: “Occur is a less formalistic term, it is event oriented to its core. It connotes conduct and
phenomena and imports no preference among all of those necessary that a plaintiff may sue.”
 At the very least, occur includes every county where some substantial part of the injuring
conduct occurred
 Reasoning:
 In this case the alleged facts suggested that negligent conduct happened in multiple places such as
where the equipment was loaded and the wrong size airplane was selected
 Burgess v. Lucky
 Facts: Medical Malpractice & Wrongful Death Suit. Alleged med-mal occurred in Forest County, but
patient-decedent lived in Simpson County and ultimately Died in Simpson County. Wrongful Death
suit brought in Simpson. Motion to transfer denied.
 Issue: Was venue proper in Simpson County (place of death)?
 Rule
 See “Abbott” note on case book: Something about wrongful death COA accrues in the place of
death separate from and in addition to where the medical malpractice negligence occurred
 Reasoning:
 Court focused on the old “accrue” language in the venue statute
 The problem with this essentially is what spurred the language change in § 11-11-3
 Dissent: This holding enforces forum shopping and it is not hard to imagine moving an injured person
to a “magical venue” to then die
 Capital City Insurance Co. v. Boots Smith Corp.
 Facts: P was a Jones County Corp. and wanted to sue in Jones. There was a Newton County D and a
non-resident D. P argued they could drag in the non-resident and then be allowed to sue in P’s county.
 Rules:
 Overrules Senatobia Hospital v. Orr (and the forum shopping problems it created w/ non-residents)
 Venue is assessed whenever the complaint is filed
 If there is a motion to transfer and there is more than one choice available, then P gets to pick
where to transfer
 Reasoning
 Case cites old statute § 11-11-11 that said “if a non-resident, then P may sue in P’s own county.”
 Although this is what Senatobia said, there was no good reasoning so we are overruling it
 Senatobia v. Orr
 P was from Tunica. There was alleged medical malpractice for all Ds having occurred in Tate
County—but one of the D-doctors moved to NOLA.
 Then P sued in Tunica county asserting that b/c there was a non-resident D then the statute
allowed a suit in P’s home county.
 P argued this coupled w/ R.82(c) meant that P could sue in home county & drag in all the Ds
 Held: Overruled Senatobia & ended rule re: getting in P’s home county by also suing a non-resident D.
 Venue Review 1
 Basically: In which of 82 counties plus 10 districts may P bring a case, and keep it there? (92 total)
 Who Makes the Rules of Venue: The legislature w/ a little touch from MSSC
22





 MRCP 82: generally, if venue is proper for one then venue is proper for all
 Old vs. New § 11-11-3
 Fn 1 of Flight Line Domestic Corp: principal place of business
 Mystery Realm of: Substantial Act/Omission or Substantial event that causes the injury occurred
 Product injuries may be brought wherever the product was purchased
 See also Leake County Coop - You must file a 12(b)(3) motion to transfer venue, otherwise you waive it
Venue - Medical Malpractice
 Suit shall be brought only in the county where the alleged negligence occurred
Adams v. Baptist Mem. Hosp.
 Facts: Slip and fall at Tunica casino. Woman treated in Desoto County hospital. She died shortly thereafter
and sued Hospital and Casino in Tunica County. Ds moved to transfer to Desoto County. Trial court
transferred for hospital D, but severed for Casino
 Rule: The language about “notwithstanding” for medical malpractice Ds makes it clear that the suit must be
brought where the negligent care was allegedly provided, despite other Ds from other venues
 This means that even that if the non-medical D is 95% responsible and the medical D is 5% then it still
must be brought in the medical D’s venue/county
Forum Non Conveniens - Ill. Cent. Gulf R.R. v. Stedman
 Gilbert & Piper SCOTUS cases involved interstate forum non conveniens
 Recent trend has been the emergence of intrastate forum non conveniens
 Old: There used to be a R.R./Utility/Trucking Co. venue statute that said you could sue them in any forum
they had a line — ultimately repealed b/c if you were hurt in one county, you could sue anywhere the
industry had a line/route
 Stedman Facts: P hurt in Quitman Co., but sued in Smith Co. R.R. wanted to transfer to a more convenient
venue forum
 Held: Found no error, but suggested that intrastate forum non conveniens existed
 Clark v. Luvel Dairy
 Held: To the extent that any of our cases suggested there was intrastate forum non conveniens, the
court now overruled them and said there was no intrastate forum non conveniens
 But see Miss. R. Civ. P. 82(e) - There is now intrastate forum non conveniens
 But, take this with a grain of salt b/c there has been no case where it has been used
What Sets Venue
 Venue is established by the facts as they exist when the complaint/suit is filed
 If in the interim b/f the suit is [tried], or after filed, persons move — there is still venue in same place
Local Actions
 These are the only ones where venue is also jurisdictional
 Old § 11-11-3 - Originally provided for transitory actions in multiple venues, but also provided that several
forms of “local actions” must be brought in the place of the land for suits involving land/trees/real estate.
 These suits may only be brought in the location of the land; if it proceeded to judgment then not a damn
thing could be done with the judgment (it was void) b/c it could only be had in the locality!
 New § 11-11-3 — Legislature accidentally left “local action” language, so it is unclear what would happen
now if a “local action” was brought in Jackson County that was localized in Lafayette County
 So now MSSC could go either way of saying Legislator meant to include it or Legislature by taking it
out didn’t include it intentionally
 § 11-11-17 - Venue Statute for Justice Courts (this is because MRCP 1 doesn’t apply to Justice Courts)
 But see MRCP 82(d) which says that court shouldn’t dismiss, but should transfer in the event there is
venue motion — says the same thing as § 11-11-17
 § 11-45-25 - Suits by & against Municipalities
 A suit against a municipality shall be instituted where the municipality is located
 § 11-5-1 - Venue in Chancery Court
 Note, there are also special venue statutes for executors and divorce
 Provides for local chancery actions to be brought locally
 But for all others it is wherever the defendant resides or may be found (but see Dunn v. Dunn)
 Dunn v. Dunn
23





Facts: Was a divorce proceeding & husband/doctor moved out of his house in Rankin County & was
staying w/ friends in Hinds. Wife brought suit in Hinds County claiming husband was served there
 Held: For purposes of venue you cannot tag people throughout the state and establish venue.
 Rule: Resident Ds can only be found in their county of domicile, but nonresidents are wherever “found”
 § 11-11-51 - Grounds for Change of Venue (claiming jury pool is tainted)
 This is used much more on the criminal side & is sometimes actually granted
 Mamihira v. Bailey, 891 So. 2d 831 (Miss. 2005)  Case of first impression
 Facts: Judge transferred, but he transferred it to a random convenient county that had no venue
 Held: If you are going to transfer then you have to transfer it to somewhere else that has venue, but
if there is no other county w/ venue then the judge can [can’t?] just randomly transfer it
Initial Damage Rule — Forest Gen. Hosp. v. Conway
 Facts: Young child rushed to hospital, was treated but it turned out she had further illness and she was
transferred to Hinds to be treated and they had to remove her arms and legs. P brought medical malpractice
suit in Hinds County, although all Ds were from Forest County
 Held: Because the initial damage occurred in Forest, that was the proper county not the later county where
further damage from the initial negligence occurred
 Distinguished from Flight Line b/c no causative events occurred in Hinds County
 Future Note: Since § 11-11-3 has since changed, MSSC is likely to make the same holding
Venue Waiver by Default — Belk v. State Dept. of Pub. Welfare
 Hypo: You have a Lafayette County D who gets sued in Hinds County. If there was no venue, then why
sue in Hinds to begin with? Well for a plaintiff who has a lot of Ds he wants to sue, then it is just more cost
efficient to file the suit in one place and put the burden on D to do something about it
 Often, Ds will not do anything and P can then take a default judgment
 Facts: Paternity suit and D didn’t show up and ignored/defaulted-on this wrong-venue lawsuit
 Held: A default judgment against a D who doesn’t come challenge venue is valid (b/c venue may be
waived)
 When you make a 12(b)(3) motion, P will get to choose a new venue but P will be stuck w/ the
“expenses” (Note: This is different than the idea of “costs”)
Venue Review 2
 Forum Non Conveniens
 There was a flip-flop back and forth b/t legislature, court holdings, and finally in 2004 subsection (e)
was added to MRCP 82 recognizing intrastate forum non conveniens
 Although has never been used (received MSSC case law treatment), it is there
 Local Actions
 Venue is made jurisdictional in these cases (only place where it is)
 If involving land, shall be brought in that county
 § 11-11-3  Omitted language re: local actions, although unclear why (oversight probably)
 Unclear how this apparent fault would be treated
 § 11-5-1 (chancery venue statute)  There is still language about local actions
 The county of the resident D is the county where they reside (not where found)
 § 11-11-11 was repealed (suing nonresident Ds in P’s home county)
 The nonresident provision was put into § 11-11-3
 There is no provision in the Chancery statute (11-5-1) so it is perhaps unclear where venue lies for
a nonresident in chancery court
 Single Damage Rule (forest county hospital case)
 Venue Waiver by Default Judgment (Belk Case)
 Transitory Action (contrast w/ a local action) as a claim / right of action that P takes with them
 You can waive venue b/c it is not jurisdictional
Domesticated Foreign Corp. - Sandford v. Dixie Const. Co
 Domesticated Foreign Corp - Corp that has registered to do business in Mississippi, or that they qualify to
do business here or received their certificate to do business in Miss. (although not incorporated here)
 Issue: Is a domesticated foreign corp. a resident or a nonresident?
 Sometimes it is one; sometimes the other  But most the time it is treated as a resident
 Rule: For resident corporations, venue is proper at the principal place of business
24






Venue is proper where the domesticated foreign Corp is principally doing business, or if there is no
principal place then there has to be an individual deemed as resident agent to receive service of process
 Or where act or injury occurred
 Held: For venue purposes a domesticated foreign Corp is treated as a resident Corp
 11-11-3 or 11-5-1
Venue in Libel Actions - Forman v. Miss. Publishers Corp.
 Facts: Clarion Ledger published paper in Jackson that allegedly libeled a resident of Sunflower County.
Published physically and technically (tort issue of shown to 3d party) in Hinds County. Suit brought in
Sunflower, where paper eventually showed up.
 Reasoning
 Right to sue “accrues” or becomes vested when the tort is completed
 Distinguish b/t multiplied damage and multiplied venue
 Forman Single Publication Rule: There is here but one venue & that is where the paper is 1st published
 Hypo: There was a woman who lived in Biloxi (Polly) and worked as a dancer. Clarion Ledger published
article saying Polly was basically acting as a prostitute. She sued in Harrison County, although paper is in
Hinds. She will only get to sue in Hinds County (not too fair, huh)
Contract Disputes over Venue
 How do you know where a contract is breached for purposes of venue?
 Typically a question of fact
 You can specify in contracts these types of details (i.e., where completion of the contract will occur)
Venue by Joinder - Blackledge v. Scott
 Rule - MRCP 82(c) - If venue is proper for one, it is proper for all
 Venue Joinder Test: (basically, must pass the good-smell test)
 (1) Action must be initiated in good faith in the bona fide belief that P has a cause of action against
the D upon whom venue is based;
 (2) Claim against the D upon whom venue is based must be neither fraudulent nor frivolous nor
made with the intent of depriving the other Ds of their right to be sued in their own counties; and
 (3) There must be a reasonable claim of liability asserted against the D upon whom venue is based
 Note
 New Biloxi Hospital v. Frazier, 146 So. 2d 882 (1962) is an important landmark case
 At the very least you (as a D) should motion to transfer venue and try to argue improper joinder
Matthews v. Thompson
 Case doesn’t deal w/ venue generally, but w/ how to get a case into chancery court
 Facts: Suit was brought in Attala County chancery court, but P had only attached $25 worth of property
 Rules
 Venue for Chancery lies where a person resides or in the county where some property (real or personal)
is located (i.e., the res)
 Domesticated Foreign Corp. are treated as nonresidents for [attachment in] chancery court purposes
 L&N R.R., 360 So. 2d 925 (Miss. 1978)
 There is no minimum amount which must be attached to establish chancery attachment venue
 Reasoning
 Venue in chancery is controlled by 11-5-1 (where person is found/resides and also the location of
real/personal property)
Guice v. Miss. Life Ins.
 Facts: Guice was hurt while riding a 4-wheeler in Jefferson County. Guice had bought 4 luxury vehicles,
financed by Miss. Life Ins., and all of these policies had disability insurance tied to them. Miss. Life was
HQed in Madison County. Miss. Life contended/anticipated b/f they were sued in Jefferson, Miss. Life
brought suit in Chancery in Madison County based on the location of the policies
 Rule
 § 11-5-1 — This was an action respecting items of personal property (insurance certificates and Miss.
Life’s money were located in Madison County)
 Held: These were sufficient items of personal property to justify suit in Madison County Chancery Court,
and thus restrict Guice from transferring to Jefferson
25
 Note: Several since Guice have used this tactic (very effectively): instances of stock certificates, etc. (so
tuck this away and remember it)
 Miss. Tort Claims Act - Estate of Jones v. Quinn
 Rule: The general rule is MRCP 82(c) - venue is proper for all Ds where it is proper for one
 But this has been eroded some:
 Medical Defendants
 Local Actions
 MTCA: Venue at § 11-46-13
 There is a special provision for cities, states, and municipalities
 Venue statute says that if a suit is brought against 5 Ds, but 1 of them is a city or municipality,
then it must be brought in the venue location of the sovereign D under § 11-46-13
 Also there is no right to a jury trial in suits against the municipalities
 Non-exhaustive Review
 Who makes venue rules? Legislature, except for some things in R.82
 Prods. Liability - Wherever the product is sold or purchased [but is this in addition to where you are hurt, or
exclusive to where you are hurt?]
 12(b)(3) coupled with MRCP 82(d) which says you can motion for transfer and if you win then you can get
all “expenses” (cf. “costs”) paid by the Plaintiff
VII. Parties to the Action (P2A)
A. P2A - Real Party in Interest & Subrogation
 Review MRCP 17-25
 MRCP 17(a) - Real Party in Interest
 I can have contractual rights under a contract & assign them to someone else to bring the action/sue
 Assignee is the person who will receive the benefit of the lawsuit and they are the real party in interest
 Note:
 Before you could bring assigned claim, then you need a retainer contract -- if it is a huge claim then
better to bring it as a contingency fee
 Should the Attorney be listed as the real party in interest also, when they have a right to a contingent
portion of the case?
 § 11-7-3 - If a portion of the case proceeds have been assigned to an attorney in a contingency fee,
then you don’t have to add your name on the case as “real party” unless you file the contract with
your papers (or something like that?)
 MRCP 17(b) - Subrogation Suits:
 Hypo:
 Mary Jones has an intersection collision w/ Joe Defendant. She has $10K in vehicle damages. She calls
up Aetna and they pay for her car — so the first thing they want to do is get the money back
 They will try to get the money back from Joe Defendant  Classic subrogation
 Process
 Insurance company will first contact Joe a bunch & demand payment etc (get him ticked off)
 Next they’ll pass this case to you (but not for contingency, likely hourly) & Joe is good & mad
 P (Mary Jones) might also still have some interest in the claim in the form of her deductible
 Whose Name
 At one point the subrogee (Aetna) could bring the suit in the name of Mary Jones -- but have to be
careful with this
 Reasoning was that under evidence law you couldn’t say P had insurance
 Rule: 17(b) - If the insured doesn’t have an interest anymore, you bring it in the name of the [insurer?]
 So the suit will be brought as Aetna v. Joe Defendant or Aetna & Mary Jones v. Joe Defendant
 See Alexander v. Elzie
 Facts: They started with the lawsuit in the name of the insured, then she had personal injuries and
couldn’t recover them based on collateral estoppel. The first suit was for property damage. They
lost the first suit and then tried to bring another suit for personal injuries. D argued collateral
estoppel and res judicata
26

Rule: If the party had no equitable interest in the original property damage claim, then they might
be able to get out of the res judicata issue
 Held: This suit was barred b/c suits in Mississippi are not permitted to be split-up (except rarely)
 Subrogation Examples
 Lease: Imagine you have a 5 year lease for $1K a month b/t the Lessor and the Lessee. The Lessee pays
the rent, then assigns it. Now the Assignee pays the rent. If the Assignee stops paying; then the Lessor
can pursue the original Lessee or the Assignee
 Say we have lawsuit b/t Lessor v. Lessee; problem is that Lessee just footed the bill for land he
wasn’t using. But the Lessee now has a subrogated claim against the Assignee (situations where
you have to pay for something that another is reaping the benefit of)(is this right?)
B. P2A - Joint & Several Liability
 Joint & Several Liability
 More on joint, than on several.
 History
 Common Law Rule
 Three cases: Moore v. Foster
 § 85-5-5 — but this has been repealed
 § 85-5-7
 Principle of Contribution
 Springs from idea of Joint liability
 Traditionally law firms used a P’ship method of doing business
 So if one had stolen the trust fund, then someone could sue YOU as partner for the entire amount
 Common Law
 Moore v. Foster
 Facts: Cops showed up & some guys ran. The cops shot at them! All the police were joint
tortfeasors. Moore only sued one of them (Foster) & Foster wanted the others to be added.
 Held: P can sue one or all or some of a group of joint tortfeasors — they were all jointly and
severally liable
 Celotex Corp. v. Campbell Roofing
 Discussing no contribution b/t joint tortfeasors
 Contribution was typically allowed at common law, but there could be no contribution b/t
tortfeasors and wrongdoers
 There was no right to contribution b/t joint tortfeasors
 This was not a very fair rule
 § 85-5-5
 Created contribution b/t joint judgment debtors
 To become a joint judgment debtor, P had to decide to sue 2 or more of the debtors
 This would give them a pro rata contribution right, but they were still jointly and severally liable
 See 2d paragraph of text: When you are counting up tortfeasors, the employer and the employee count
as one if respondeat superior is the basis of the employer’s liability
 Granquist v. Crystal Springs
 Facts: Deals with employer/employee or principal/agent. The employee was 100% at fault and the
employer was not.
 Rule:
 Joint Tortfeasors: Easy to be JTs — basically all who participate in any manner in the commission
of a tort
 Respondeat Superior
 Joint tortfeasors are not entitled to contribution b/t themselves or to any recovery over one
against the other, but an agent/employee through whose sole wrong the employer has to pay,
then the employer can recover back whatever they have to pay from the agent/employee
 § 85-5-7 (first iteration of three - 1989)
 1) The trier of fact (judge or jury) is to determine a percent of fault for each tortfeasor
27


Note, in counting them up the employer/employee respondeat superior rule still applies
Determining Percentages is Not So Hard
 Juries have been doing it to begin with since Miss. was traditionally a comparative fault
jurisdiction (i.e., subtract P’s amount of fault off of D’s fault)
 2) Legislator put a 50% cap on joint liability for each tortfeasor
 Issue: This statute left a monster question unanswered
 Hypo: You have Tortfeasor 1 (TF1), TF2, & TF3
 Who can P sue? Any or all of them
 They would not be allowed by 85-5-5 to implead the other tortfeasors in
 Can the trier of fact place a percentage of fault on someone who is not a party to the lawsuit?
 See MRCP 14 - 3d Party Practice / Impleader
 Verbatim the federal rule, but we add “for good cause shown” -- means you have to motion
and get a court order allowing you to do it
 Who may bring in a 3d Party?
 . . . who is or may be liable for all or part of the Plaintiff’s claim against D (derivative
liability). Basically means if D lost, then he could turn around & independently sue TF2
 Derivative Liability
 Contribution
 Indemnity - Employer/Employee
 Warranty
 Subrogation
 So if you are a joint tortfeasor you are not allowed to implead in the other TFs
 What do you do with them?
 See Estate of Hunter v. GMC
 Under § 85-5-7 referred to any participant who gives rise to a lawsuit, not just anyone
who is a party to the lawsuit — they may have fault attributed to them
 Otherwise Ps might be able to unfairly settle-out & then sue & recover more money
 Joint & Several Liability Review
 Common Law
 Remember the C/L has not changed, it has merely been supplanted by statutes
 There is joint & several liability among tortfeasors
 No right to contribution
 R. 14 Interplay
 Only applies to derivative liability
 Employer/Employee - Principal/Agent
 Remember that the employee is the one ultimately responsible and the employer may seek contribution
from the employee
 They are treated as one person for the assignment of fault
 Also employer could implead in the employee
 § 85-5-5
 Contribution, but only among joint judgment debtors (i.e., only among those the plaintiff chose to sue)
 Someone could be 1-2% at fault and end up paying all of it, and then they could try and get it back
from the others on a pro rata basis
 § 85-5-7 (Round 1)
 Percentage of fault assigned
 Placed a 50% cap on joint liability
 Percentage of fault can be assigned to absent tortfeasors (i.e., immune or never sued)
 Hypo: P v. Kroger & Logging Co Example
 Logger swerved when being passed by Kroger truck and injured P. P sued both of them.
 Jury found Kroger 20% liable and Logger 80%
 At time they were under § 85-5-7 (Round 1) so that Kroger was jointly liable for 50% (10 Million!)
 But could have been worse if the accident had happened under the current rule b/c Kroger would
have only been liable for 20% (or 4 million)
28
 § 85-5-7 (Current)
 Percent of Fault
 Several Liability Only (no joint liability)
 Hunter v. GMC - Percentage of fault may be assigned to non-parties
C. P2A - Legal Disabilities
 Persons Under (Legal) Disabilities
 Types
 Mississippi only recognizes: (1) Minors, and (2) mental incompetence / non compos mentis (NCM)
 MRCP 17(c) & (d)
 (c) How Minors/NCMs Can Litigate
 Definition: Anyone under 21 is both a minor and an infant
 But keep in mind that in various areas the legislature has removed the disability of a minor for
certain things, and that you can get a chancellor to lift someone’s disability
 Guardian would be assigned often for minors; a conservator (less stigmatic) could be assigned to
someone of diminished but not total incapacity
 It is common for a “next friend” to sue on behalf of the minor
 But if there is a huge award, it is common a guardianship will be selected probably to protect
the minor’s award
 This may be favorable at times b/c a guardianship/guardian-ad-litem can be expensive
 (d) Guardian ad litem
 A guardian can be appointed ad litem to represent a minor/NCM for that case only
 Must be an attorney
 Appointed by court
 Entitled to a reasonable fee
 Ruiz v. Ruiz
 Facts: 20¾ year old woman brought divorce proceeding. She was viewed by the law to be an infant
 Rule: A suit against a minor is voidable by the minor at their election
 Held: If you think someone is a minor or NCM, then you should better get on it and make the other side
explain if they are or are not (b/f you waste money on acquiring a voidable judgment)
 Contract & Infancy
 If you are 18 or older in Mississippi and you enter a contract then it can be binding
 Johnson v. Mackadory, 88 So. 2d 106 (Miss. 1956)
 Facts: Person who appeared to be an adult, and represented himself to be an adult, bought a vehicle
under contract by falsely representing himself.
 Held: A person who holds himself out as an adult through fraud or deception and who is mature enough
can be held to that contract sometimes
 Review of Disabilities
 Only two types of disabilities:
 Under 21 & Non Compos Mentis (NCM)
 Minors Can Litigate if:
 Guardian is selected (expensive but important in any large reward situation b/c the family might
otherwise take the winnings), or
 A next of friend is selected
 3 Methods in Which a Minor May Litigate
 Guardian
 Guardian ad litem
 “Next friend”
D. P2A - Foreign Corporations
 Foreign Corporations
 C.H. Leavell & Co. v. Doster
29

Issue: Is a domesticated foreign corporation a resident or non-resident for the long-arm statute; thus
may a domesticated foreign corporation use the courts of this state to sue as a resident?
 Rule:
 For venue purposes, a domesticated foreign corporation is treated as a resident
 For chancery purposes, a domesticated foreign corporation is treated as a non-resident
 For long-arm statute purposes (this case) a domesticated foreign corporation is treated as a resident
 A non-resident may not bring a suit against another non-resident for the contract claim
 But a domesticated foreign corporation may bring a contract long-arm suit against a nonresident, because the domesticated foreign corporation is considered a resident
 Notes:
 A non-resident may bring a tort lawsuit in Miss., b/c the statute says that you can bring a suit if a
tort is committed in whole or part against a resident or non-resident in the state
 Doing-Business: a non-resident may not bring a suit b/c the federal courts have reasoned that since
the legislature amended the tort portion in 1980, but did not amend the “doing business” portion so
it is to be discerned that non-residents cannot sue in Miss.
 So. Pac. Transp. v. Fox, 609 So. 2d 357 (Miss. 1992)
 FN 6: MSSC cites federal cases saying this but notes that they didn’t have to use that
reasoning for this case and reserved decision on it later
 Synonyms (Miss. courts use all these to mean the same thing)
 Domesticated foreign corporation
 Foreign corporation that received their certificate of authority
 Foreign corporation authorized to do business in the state
 Encouragement to Register to do Business
 Timeline
 § 79-3-247 - Door-Closing Statute (this is old but has frequently been cited)
 If you weren’t registered to do business whenever a cause of action arose, then you are not allowed
to come in and bring the suit!
 § 79-4-15.01 (adopted 1/1/88)
 Foreign corporation may not maintain the action until it has received its certificate of authority
 Door-Closing might still be viable b/c if they try to use this then they have to repay all the unpaid
fees for not being registered
 § 79-4-15.02 (adopted 1/1/88)
 Parker v. Linco Producing
 Facts: Linco was a La. Corp. that was doing business frequently in Miss. Parker (Miss. corp.) was
sand-baling Linco’s well, and the baler broker. Linco sued Parker, but Parker defended that the Door
Closing statute applied and Linco couldn’t maintain the action.
 Reasoning
 Linco argued they could still register and then bring the suit
 But Parker showed that the amended version actually enacted left off the “register then sue” portion,
so Linco was still barred FOREVER (this has since changed)
 Held: This non-resident corp was barred from suing in Miss forever
 Note: Parker might still be subject to suit if he gets caught in La.
 Trane Co. v. Taylor
 Facts: Trane Co. was a Wisconsin Corp. sued Taylor for A/C equipment he didn’t pay for. Taylor
defended on the ground of door-closing statute. Trane argued they weren’t doing business, but merely
had a buyer/seller relationship w/ Taylor, wholesaling his business.
 Rule
 A true buyer/seller relationship is not “doing business” in Miss.
 If it is a principal/agent relationship, then that is “doing business” in Miss.
 The degree of control over the relationship is important in determining if there was a “doing
business” problem or not
 This is a penal statute that must be strictly construed (then they just knock the hell out of the D)
30








Held: That Trane was basically pulling the strings here, and because they were in such control they
qualified as doing business w/o being certified
 It is immaterial that Trane was also engaged in interstate commerce unless the lawsuit but an undue
burden on the interstate commerce
 Door Closing Statute Exceptions
 There are some exception to this statute such as Interstate Commerce (now in 79-4-15.01)
Review of Corp. Door Closing
 New Act vs. Old Act
 Was adopted in 1/1/1988
 Most of the book cases deal with the old act, but the rules can be applied to the new act
 Biggest Change: May not maintain an action in the state until it receives its certificate of authority
 Interstate commerce exception - Has been carried forward from the old act to the new act
 If you are engaging in interstate commerce then you can get an exception
 Buyer-Seller Exception (Trane Co.)
 A buyer-seller relationship can be excepted, unless it is really a principal-agent relationship then no
Corporation Door Closing
 This is an affirmative defense, you have to raise it at the right time or lose it
Foreign Business Counter-Claim - Environmental Coatings v. Baltimore Paint & Chemical
 Doing Business Definition?
 Is it not a term of art, but just a practical term that has differing meanings in long-arm situations and in
this situation
 Facts: D had not qualified to do business, but he was sued and then he turned around and brought a thirdparty claim and a counterclaim. P argued that he couldn’t do this b/c he hadn’t qualified to do business
 Rule: Plaintiff basically opened the door that was slammed shut and said come on in
 Held: A defendant may bring a counterclaim or a third-party claim although he couldn’t affirmatively bring
the suit on his own as a plaintiff — i.e., once D gets sued he can counterclaim, etc.
Pittman v. Allenburg Cotton
 Facts: Farmers often sell their crops b/f they grow them. They had contracted for $0.33 per pound, but
once it was grown the cotton was selling for $1.25 a pound. So they breached the original low $0.33
contract thinking they could get away with not paying the foreign corporation
 Reasoning
 There are some examples of activity that will prove someone was doing business (page 177)
 This wasn’t just buyer-seller situation where the contracts were merely orders (but overturned by
SCOTUS)
 SCOTUS Held: That the cotton industry was so integrated in interstate commerce that Miss. couldn’t
regulate it
Barbee v. United Dollar Stores
 Facts: Dollar Store had franchises all over Mississippi. They sued one of their franchisees and claimed that
they were an authorized foreign corporation . . . but they were not.
 Issue: Were they doing business in Miss. and should they come under the interstate commerce exception
 Rule: They interstate commerce exception doesn’t apply unless the foreign corporation was engaged in
solely interstate commerce
Diversacon Indus. v. Nat’l Bank of Commerce of Miss (5th Cir.)
 Facts: A Florida corp. had an office in Miss. through which they were doing business solely in La. They
had a bank surety with a Miss. bank. Corp. sued the bank and the bank tried to say that the door closing
statute superseded the suit.
 Issue: whether the interstate commerce exception applied
 Rule: This hinges on whether the activities were intrastate or substantially interstate
 Reasoning
 This case in federal court received a different treatment than what is usually received in state court
Scott Co. v. Enco Constr.
 Facts: There was a venture partnership b/t three foreign corporations. Two of the foreign corporations were
domesticated (45% & 45%). The third, Enco (10%), was not domesticated as a foreign corporation. At this
time in partnership law, all the partners were necessary parties for a lawsuit.
31
 Held: Because one member of the partnership wasn’t qualified to do business, the entire partnership was
ineligible to bring the suit under the door closing statute
 Statute Amendment
 A P’ship may sue or be sued in the P’ship name
 There is an argument that this has helped, but there is also an argument that this is just a façade and
nothing substantively has changed
 Our court would likely reach the same result
E. P2A - Mass Actions, Bills of Peace, & Interpleader
 Mass Actions & Rule 23
 Rule 23 — It is omitted! MSSC Said there is no class action available in Mississippi
 History
 A greed factor took over
 We started w/ asbestos cases, then hearing loss cases, etc.
 This was resulting in a case management problem when there were hundreds of parties
 Hardly any cases were tried while this was available b/c people were terrified & would settle quickly
 How it worked
 Attorneys would find some in-state plaintiff, then they would start collecting other plaintiffs from all
over the state and even from outside the state. Then P would bring the suit in a magical venue
 Ds wanted the suits to be split-up
 American Bankers of Fla. v. Alexander (glory days)
 “the general philosophy was to allow pretty liberal joinder at the pleading stage and then let the judge
shape the lawsuit as needed”
 One plaintiff could bring a suit where there was venue, and then all these other plaintiffs from all over
the state (and without any explanation from outside the state) would join in the lawsuit
 Tort Reform
 Chilling Effect: This type of litigation had a drawback because Corps wouldn’t want to come to Miss
 Amended § 11-11-3
 Each plaintiff shall independently establish venue
 This may conflict with MRCP 82(c) but seems to be valid?
 Janssen Pharma. v. Armond (rolling back)
 Amended MRCP 20 & 42, and added 82(e) about intrastate forum non conveniens
 Rule 20 comment: The phrase “transaction or occurrence” means there must be a distinct litigable
event linking the parties
 They deleted the language about allowing general liberal joinder
 Harold Auto v. Mangialardi
 You have to spell out for each P what happened to that individual P by whom and where it happened
 Canadian Nat’l v. Smith
 Plaintiffs’ claims that accrued out of state should be dismissed
 Mass actions are essentially gone:
 You have to find venue for all
 You have to have distinct litigable events
 You have to plead P’s injuries with some level of specificity so that the who, what, where is
comprehendible
 Bills of Peace - Prestige Farms v. Norman
 Facts: There was a problem with a smelly pig farm nearby the homes of the plaintiffs. This form of action
was in chancery as a “bill of peace” which was an equitable device from common law England
 Reasoning
 The “bill of peace” is still a valid pleading device and may be used
 Was designed so that D could bring in many people who could sue them (i.e., a plant discharging
pollution on a river & potentially many Ps) & then be at peace and not have all these suits out there
 Held: Even though the Ps brought the bill of peace, MSSC allowed them to all join as Ps in this suit
 But since all the Mass Action stuff has happened the court might not be as favorable towards such P
instituted bill-of-peace-actions now
32
 Interpleader - Rule 22
 Meant to deal with a situation where a person is liable to be sued by multiple persons and they aren’t sure
who to turn money over to
 Banks and Insurance Companies are frequently subject to these situations
 See also comment
 Basically you would just pay in the amount into the court, and then let the court sort it out
 Can also just argue (in insurance context) that there was no negligence by the insured
VIII. Commencing the Action
A. Commencing the Action - Types of Service & Service Mechanics
 Overview
 Focus On Rules: 3, 4, 5, 6, 12(a), 12(b), 12(b)(4)-(5), 81(d)
 How do you commence an action (see Rule 3)
 You commence the action by filing the complaint (but that isn’t all)
 Must also serve the complaint in a summons (see Rule 4(h))
 Basically have 120 days to serve the summons
 Although issued by the court clerk, the summons is frequently prepared by the attorney as this is
more careful way of doing it
 See forms 1A & 1AA (these are the only forms worth a damn in the MRCP)
 Then you must actually serve the summons (5 modes; see Rule 4(c))
 This says service of process (generic term) but what we are talking about is the summons + complaint
 Modes / Type of Service
 4(c)(1) - Service by Process Server
 Anyone 18 years and older, and not a party to the lawsuit
 Attorney can serve, but it is stupid b/c you could end up being a witness if there is a service issue
 Before MRCP there was no process servers, but service by sheriff
 Process Servers are now the most common method
 Sheriff as a Process Server — You can pay a sheriff (say if you hire one in California) to serve the
process as a process server, not as a service by sheriff
 But you need to send them the correct 4(c)(1) summons
 4(c)(2) - Service by Sheriff
 There could be dangerous situations where you prefer the sheriff to serve (warn them it’s dangerous)
 Must use them when it is a writ of replevin (or whatever) where you are seizing something
 4(c)(3) - Service by First Class Mail w/ 2 Acknowledgement & Receipt Forms
 Acknowledgement - Hardly anyone ever returns the acknowledgement
 It has to be certified
 Note: Plaintiff is the master of the lawsuit and he doesn’t have to use 4(c)(3) if he doesn’t want to
 4(c)(4) - Service by Publication
 We are returning to this and some cases on this later
 But basically, has to be a paper of general circulation and it can’t be all advertisements, etc.
 Due Process Concerns
 Remember that you cannot get jurisdiction through newspaper publication service for in personam
suits (except for certain status suits like status of divorce).
 This is constructive service of process and it needs to be in-rem or quasi in-rem
 You cannot use constructive service of process for an in personam suit
 If the res is located in the area of publication then it might be okay
 4(c)(5) - Certified Mail w/ Return Receipt Requested (Non-Residents Only & restricted to natural persons)
 Also known as “green card” service because of what the return receipt looks like
 This is how most everyone starts their non-resident lawsuits
 Sometimes people won’t accept the certified mail
 Then you must use a process server
 Debate: Some want this permitted in-state, and others complain that frequently the green card comes
back illegibly signed
33






Refused:
 The Rule says that you can have completed service if the certified mail comes back refused
 But don’t do this b/c you are likely to get a challenge to the SOP which could be trouble
 Bloodgood v. Leatherwood, 25 So. 3d 1047 (Miss. 2010)
 Facts: P & D had a vehicle accident. D lived in Memphis, and summons was sent by certified mail
4(c)(5) return receipt requested. The letter came back as “Unclaimed/Refused” (this is the new term
that the postal service puts on all undeliverable mail). P got a default judgment and D challenged it.
 Held: B/c it was unclear whether the letter was actually “refused” as opposed to just “unclaimed,”
there was no service of process
After Service
 There is a return that must be filed by the process server
 The defendant must file an answer within 30 days or potentially face default judgment (see Rule 12(a))
 This does not establish jurisdiction over D; this merely gives notice that the lawsuit has been filed
 If you don’t think there is jurisdiction then you should challenge jurisdiction by filing a 12(b) motion
Mechanics
 Where can you serve process?
 Anywhere — anywhere in the universe
 How much can you pay a process server?
 As much as you want, usually not a high fee (but an elusive D might justify paying a high fee)
 But the most you can get back in court costs is the amount that would be paid for Service by Sheriff
 Deceptive Service
 The process server can deceive the individual to come out and get the service
 The real point is did they serve you (regardless of whether they lied) and do you now have notice?
 You can serve them 24 hours a day
Alias Summons
 This is a duplicate or an additional summons issued by the Clerk if the first one you use doesn’t come back
 You must send out an “original” each time
When Complete: It is crucial to know with each mode of SOP when it is complete
 B/c this triggers the 30 days to respond (Rule 12(a)) and satisfied your 120 days to serve
 When complete means when it is effective
 You want to know this so you know when to stop getting other forms of service and when you can
claim a default judgment
 Personal/Sheriff Service:
 Complete whenever it is handed to you
 First Class Mail (See form 1B):
 Is complete as of the date on the form that the form is dated and signed
 Publication:
 Note: all other forms of service have some sort of “return” and this one doesn’t (so no in personam
jurisdiction b/c there has been no actual service)
 Service is complete from the date of the first publication (even though 3 publications must be made)
 Problem w/ this is that your 30 days begins in the first of three weeks of publication to be published
 Certified Mail on Nonresident
 The date on the green card that D writes on it when it is dated and signed
Commencing an action Review
 1) File a complaint (rule 3)
 2) Clerk will forthwith issue a summons
 A wise lawyer will prepare the summons himself and take it to the clerk for certification
 A copy of the complaint must also be served, so you will include this when you take the prepared
summons to the clerk
 3) Importance of Commencing the action
 Tolls the SOL (statute of limitations) when you properly commence the lawsuit
 4) When served, you have 30 days to answer (Rule 12(a))
 If no answer w/in 30 days, then you can file for a default judgment
34

But if you are going to go through all this, you want to be sure that you had valid service of process,
etc., so that D won’t challenge the procedures and get the default overturned
 Also be careful as D b/c ineffective service of process can be waived
 Modes of Service of Process
 Remember this really means service of the summons & complaint under Rule 4 as the summons &
complaint are a form of process)
 Service is complete when it is effectively served . . .
 4(c)(1) - Process Server
 Complete when you hand it to them
 There is also a return that is sent back but it is complete when served
 4(c)(2) - Sheriff
 Only in his county
 4(c)(3) - First Class Mail
 Sort of like a waiver: you send two copies of the acknowledgement and receipt form
 Doesn’t work very well (but who cares, if P doesn’t like it, then P doesn’t have to use it)
 4(c)(4) - Publication
 Remember, constructive notice won’t suffice for in personam proceedings
 Service is complete after the first of the three publications (after you have completed all the notices)
 4(c)(5) - Certified Mail - Non-residents Only
 Complete the date the defendant signs the green card receipt
B. Commencing the Action - Time Limit, Ways to Serve, & Waiver
 Rule 4(h) - Time Limit to Effectively Commence the Action
 This only matters when the SOL comes into play
 If you don’t get service of process w/in 120 days of filing complaint then you get your suit dismissed w/o
prejudice (but there can be a SOL problem) unless P can show good cause
 So even though it says w/o prejudice, if the SOL has run it will effectively be w/ prejudice
 Example: You commence an action by filing a complaint, but you have to accomplish conditions to
make it all work out
 (a) File Complaint
 (b) 120 days to get service of process
 SOL tolled during the 120 days
 Erby v. Cox (first real case to deal with R.4(h))
 Facts: Complaint filed 9 days b/f SOL. Summons not served until 105 days after filing complaint
 Held: The dismissal under R.4(h) is w/o prejudice, but shouldn’t have been dismissed anyway
 Watters v. Stripling
 Facts: Complaint filed but service of process not had until 120 days had run
 Rule: If P can establish good cause then it is as if the SOL was still tolled
 Effect on SOL:
 If the SOL is tolled 9 days before it runs (i.e., complaint is filed 9 days before it runs) and 120 days
expires w/o service of process, then you would have those 9 days left on the SOL once 120 days lapsed
 “For cause shown” vs. “Good Case” (i.e., excusable neglect)
 Good Cause
 When you file a lawsuit put 120 days on your tickler calendar
 A big part of “good cause” is having diligent efforts you have tried to effect service (but it is hell to
show “good cause” anyway”
 Ignorance/screw-ups by the attorney are not good cause or excusable neglect
 For Cause Shown
 This is a time extension measure under R.6(a)
 This is easier to show
 Show you’ve acted in good faith, it is kind of easy (but “good cause” is way beyond this)
 Have to do it b/f the 120 days expires
 So in order to use this, P should:
 W/in the 120 days (before they expire)
35


You should make a motion for an extension of time (typically 60 more days)
It is important to have made some SOP efforts so that you have something worthwhile to say in
your motion for more time
 Cross Creek Prods. v. Scafidi, 911 So. 2d 958 (Miss. 2005)
 Held: If the motion for additional time is made w/in the 120 day period, then P need not show good
cause (excusable neglect), but merely the lesser standard of Rule 6 “for cause shown”
 Trial Judge Discretion
 Trial judges have extensive discretion & appellate courts grant great deference to the trial court’s
determination of whether there was “for good cause shown” for an extension or “good cause”
 Jenkins v. Oswald, 3 So. 3d 746 (Miss. 2009)
 Facts: P never made a motion for extension of time, but did finally serve ~1,000 days later. But
Chancery judge saw some good cause somehow and said that the SOL had not run
 Held: 5/4 split gave deference to the trial judge and said this was permissible extension of time
 Conundrum:
 Since D has not been served, he isn’t around to challenge P’s motion for extension of time
 Once they finally get served, D will see that the SOL had run and request a new hearing on whether
there actually was good cause for the extension
 Several judges have gone back & revisited their rulings & found there wasn’t actually good cause
 So this becomes a crucial after the fact determination of whether or not the SOL has actually run?!
 What to do:
 Avoid the quagmire by serving early, putting it on your tickler calendar, make diligent efforts, request
time extensions on time (b/f 120 days lapses), and documenting your efforts.
 Rule 4(d) - Ways Service May Be Effected
 Residence Service - Go to the residence where you know someone lives and find a member of the family
16 years of age or older (willing to receive it) and this is a suitable form of alternative personal service
 After you serve a member of the family, then you must also mail a copy
 When Complete: Service is complete 10 days after the mailing
 So if the deputy sheriff never mails it, then you never complete service (Stay on his ass)
 Who may be served
 Unmarried Minors/Infants (anyone under 21)
 If you are serving an infant then you must serve the parent or guardian
 If they are 12 years or older and an Infant then you must serve the parent/guardian and the infant
 Special rules for Non Compos Mentis (NCM)
 State or a State Entity
 Jones v. Miss. State Univ.
 Facts: Sued MS State b/f SOL had run. Had process server serve then Pres. of MS State. Time went
on and the 120 days went on so the SOL ran. D showed up and asked for a dismissal w/ prejudice
b/c the SOL had ran
 Rule: 4(d)(5) - To get service of process Upon the State of Miss. or any one of its depts, officers or
institutions, you must also deliver a copy of the summons & complaint to the Attorney General
 Reasoning:
 P tried to argue this was excusable neglect, but the attorney not knowing the rules for service of
process is not good cause
 Held: The SOL had run and there was no good cause and the suit could be dismissed w/ prejudice
 Waiver R.4(e)
 Spells out exactly what a waiver should look like
 However, the waiver must be executed after the commencement of the lawsuit
 Say for example you are suing someone in NY and they agree to waive service of process, but they
execute their waiver prior to you filing the suit (damn mail was actually fast for once!).
 Chancellors can be very prickly about this, so don’t screw-up
 Review
 Resident Service Review
 If they can’t find the defendant, they can leave it at the home w/ a member of the family 16 or older
36
 But must also mail a copy of summons & complaint to the home
 Service is not complete until 10 days after mailing the copy
 If dealing w/ someone special or of special status then you have to check Rule 4 for how to serve them
 Minors: Serve parent/guardian and if minor over 12 serve them as well
 Waiver of Process
 See form 1E in MRCP book
 Remember waiver must executed after the filing of the complaint (see Rule 4(e))
 Rule 4(h) - can be problematic
 After you file a complaint you have 120 days to serve summons and complaint on D.
 If you don’t do this suit can be dismissed w/o prejudice
 But if the SOL has run you can have a problem (b/c effectively causes dismissal w/ prejudice)
 Extension of Time: easier b/f 120 days expires (requires only a showing of Rule 6(b) cause which is
easy), otherwise must show the rule 4(h) cause once 120 days has expired & it is difficult to show this
 Remember trial judge has been given a lot of discretion on this matter
 If you are on P’s side and you file this complaint b/f the SOL runs, but 120 days go by and then
sometime after SOL runs, D is served and trial judge grants extension motion (b/c in part D wasn’t
available to argue otherwise)
 D is going to argue that the SOL had run once they get served, and the trial judge might go
back and change his mind and actually dismiss the case (w/ effective prejudice!)
C. Commencing the Action - Rule 81(d)
 Rule 81(d) - Note: Anytime you get anything in chancery CHECK 81(d)!!
 See Forms 1D & 1DD: Forms for service for Rule 81(d) matters
 History
 Chancellors on the rule committee decided there were several chancery claims that didn’t really work
correctly under R.4’s 30-days to respond (which trigger discovery, etc.)
 Some Chancery actions need to be handled more expeditiously (so they invented 81(d))
 General Procedure
 In 81(d) matters the defendant is summoned to a specific date and time
 No response is required
 The 30 day / 7 day time-span is to ensure that the other party can schedule it in
 A lot of lawyers fail to consult with the judge first b/f putting something on judge’s calendar
 This will result in an ass-chewing!
 Never, ever set a hearing date for an 81(d) summons w/o first checking w/ the judge
 81(d)(1) - 30 day matters
 81(d)(2) - 7 day matters (similar to the 30 days matters but often w/ the caveat of temporary relief)
 Rule 81
 Summons Should Include:
 The date and time that someone must appear on the summons
 Sometimes these get continued and if there isn’t a specific date then you’ll have to get a new
summons showing the appearance date
 No answer is required to be filed (unlike Rule 4) & the person summoned just has to show up & appear
 Powell v. Powell
 Facts: This case dealt w/ temporary matters that belonged in chancery court (there was continuing
jurisdiction over these custody matters). D was served w/ a Rule 4 summons (not a Rule 81(d))
 Held: If it is an 81(d)(1) or 81(d)(2) matter then you must serve in accordance with Rule 81(d) and its
accompanying summons
 The flip side (held later) is that if it is not in Rule 81(d) then you must serve according to Rule 4
 What do the 30 and 7 days mean?
 Your return (of service of process) must show that the person you are serving had at least 30/7 days
notice of the date of hearing.
 Before you set a date for the hearing you need to check w/ the chancery court judge
37
D. Commencing the Action - Various Statutes, Computing Time, Other Service, & Misnomers
 Various “Commencing the Action” Statutes
 § 13-3-73 - Sheriff Kept Off by Force
 If someone keeps the sheriff off by force, then the effect is that service has been returned
 § 13-3-77 - Sheriffs may only serve process in their own county
 Process Server Review:
 A process server may serve process anywhere
 You can pay a process server whatever you want, but you can only recover as “costs” in the case the
amount the sheriff would have been paid
 § 13-3-55 - Service Against a Partnership
 You may effect process on a partnership by service on any one of the partners
 The better route is to serve as many of them as you can (because you will also have access to the
personal assets of most of them) (always do this)
 Statute amended also so that you can renew judgments (good for 7 years) for another 7 years, so
you never know when you’ll get some assets in someone you hold a judgment against
 § 11-45-3 - Suing the State
 You can’t take a default judgment against the state/sovereign (as taxpayers ultimately bear the burden)
 Computation of Time - Rule 6
 Time Can Be Crucial: Think SOL, time for Rule 81(d) summons, etc.
 Service b/t the Attorneys
 Once the action has been commenced, then this rule governs the service of documents b/t the attorney
and so-on of other case documents
 Terminal Day: The last day something can be filed is called the terminal day (can be a big deal if
something is due on this day and you can’t get it done)
 Rule:
 The last day of the time period shall be included unless it falls on a Saturday, Sunday, or a legal holiday
as set out by the statute, then the period will terminate on the next day. Also if the courthouse is
inexplicably closed or if they substitute another holiday.
 See 25-1-99 & 3-3-7 — Hours & Holidays
 Court can close at noon on some days and can swap around a couple of legal holidays (Mardi Gras
or any other chosen “holiday”)
 If the courthouse is closed for any reason then you are probably okay by Rule 6 b/c it says you count
the next day it is open as the terminal day
 But if the courthouse is open for half-day & you get there after it has closed you can be screwed so:
 Marlboro Shirt Co. v. Whittington, 195 So. 2d 920 (Miss. 1967)
 If the courthouse is open for half a day then it counts as open for the time computation
 You better go find the clerk or the deputy clerk and ask them open the courthouse back up (hell
even pay them; please come back and open the courthouse!)
 The day doesn’t end until midnight, so even if after 5:00 o’clock try and do what you can to get
the courthouse open if something needs to be filed (b/c of terminal day)
 You can also file with the judge from time to time (Rule 5(e)) - but don’t make a habit of this
 You can electronically file in some places
 Rule 5 - Service & Filings of Pleadings and Other Papers
 Most things are concentric on serving the other party (must be their attorney if they have one), and then
later filing it with the court.
 Robb v. Ward
 Facts: Appealed that there was no PJ on him b/c he was served on a Sunday by the process server
 Held: This was valid service of process (in fact Sunday is a great day to serve someone)
 Reasoning:
 Even process issued on a Sunday (or a Holiday, or when the court is closed) is valid!
 Hypo: Bank calls and says a debtor is about to skip town and you work swiftly to try and get the
process issued b/f they leave town (examples: writ of replevin or other injunctive types of process)
 Review
38
 MRCP 81(d) matters — must use the 81(d) summons form
 MRCP 6 - Don’t count the first day that triggers a time limit, but you do count the last (terminal) day
 Check the legal holidays, the statute tells us what they are (we have some weird one’s)
 There is also a provision that the courthouse shall be closed for legal holidays, and for another assorted
day, and they can close for half days
 Always call ahead and make sure the courthouse is open
 Otherwise you must round someone up to open the courthouse so you can file
 Remember MRCP 5 says you can file w/ the judge (they’re elected, they understand, right?)
 Electronic filing available in some areas
 Rule 5
 Controls dealings w/ other party(ies) once the suit is commenced
 Must serve the other attorney, if the party is represented
 Delineates variety of ways of effecting service
 Serving (not actual filing) must be done in X amount of days. Then you should file the documents
w/in a reasonable period of time after serving
 Computing Time (Rule 6 again)
 When computing 30 days (for example) you count the intervening Saturdays, Sundays, and holidays
unless the terminal day falls on one of those days
 (Federal rule has a variation for less than 11 days?)
 If you have less than 7 days, then intervening Saturdays Sundays and Holidays are excluded
 If holiday is on a Sunday, then the next day is the holiday
 Note: Does this by logic always seems to become 8 days?
 Misnomers - Rich by & through Brown v. Nevels
 Facts: Defendant was Ms. Rich, but the summons was issued to Ms. Ritchie (a misnomer), P took a large
default (What do you do if D just ignores it? Get a default!)
 Rule: Amendment is permitted so long as evidence doesn’t suggest that the misnomer misled the party, and
D must prove that the misnomer misled him/her to think they weren’t the target of the suit
 Remedy: If you get a summons that has flaws/faults then you make a timely 12(b)(4) motion to dismiss for
insufficiency of process
 Note:
 12(b)(5) - Motion to dismiss for insufficient service of process (i.e., if process server tacked it to the
front door, or left it with someone they weren’t supposed to—yard worker).
 Probably better just to challenge it with this motion otherwise you might be in a fact battle w/ the
process server / P regarding the nature of the motion.
 This may also be the motion you file when you think the 120 days of Rule 4(h) has already run
E. Commencing the Action - Service by Publication & Substituted Service
 Service by Publication - 4(c)(4)
 Publication Rule: This service is constructive service and will not suffice for an in personam action
 Only good when the state/statute has jurisdiction over the res or in certain divorce situations (but not
for custody/child support)
 Requirements
 Must be a non-resident. See 4(c)(4)(A)
 Published once a week, for three consecutive weeks
 Form 1C - Summons by Publication
 Time to Respond: 30 days from the first publication (assuming all three get completed)
 Newspaper of general circulation in the county; if none a reg’l paper (maybe) or a paper from the seat
of government. See 4(c)(4)(B)
 See page 199 in Materials: § 13-3-31 — Identifying what a “real” newspaper consists of
 Sufficient subscribers, not a certain percentage of advertisements, etc.
 Foreclosures notices must be published 4 times (no one really knows why)
 What does P do when using publication service?
39





After the time has run for all the publications the newspaper will send you (or go pick it up) a
proof/certificate of publication
 Then you file this proof with the court. 4(c)(4)(B)
 Someone in your office needs to proofread the publication that first comes out (you want to catch any
mistakes as early as possible instead of finding out when you get the proof of publication)
 In publication you must exercise procedural precision b/c it is constructive service (dot your ‘i’s and
cross your ‘t’s)
Additional requirement
 Clerk must send a copy of the complaint and summons to the mailing address of the non-resident being
served by publication. 4(c)(4)(C)
 The attorney should check-up on this, but again it has to be the clerk
 Point is that process by publication requires strict adherence to all the rules
 Kalikas v. Kalikas, 821 So. 2d 824 (Miss. 2004)
 He (in MS) wanted to divorce his wife (in NC) by publication. Later it turned out Ms. Kalikas
showed up and attacked the sufficiency of the service (12(b)(5)) claiming there had never been a
copy mailed to her by first class mail. This made the attempt at service null and void. In the
interim he had already gotten remarried!
Rice v. McMullen
 Facts: Was a will matter & was using publication service (remember only non-residents) for “Nathan
McMullen” whose post office address was 123 Sherman, TX; but whose street address was unknown
 Issue: What is the effect of failure to allege that D was a non-resident?
 Held: Just saying that someone lives in another state doesn’t mean that they are a non-resident. This
doesn’t jump right out at you by looking merely at the rule, but this is what MSSC says so include this
easy statement in your summons and affidavits (or risk the consequences)
Even if you know about the suit, but aren’t served properly, you aren’t brought into the lawsuit.
 You have to be served with a summons and complaint as required by law (due process concerns)
 But actual knowledge is not irrelevant, b/c if there is some minor defect (like a non-misleading
misnomer) then actual knowledge can play a role)
 Ex: Dr. Andy the Orthopedist
 Disgruntled customer goes and says “I’m suing you and here is the complaint!”
 This is no good b/c has to be summons and complaint; and furthermore only a non-party to the suit
can serve summons
 SOL eventually ran, and MSSC said too bad
 Ex: Miss. State Univ.
 They had full knowledge they were being sued, but service of process was invalid b/c they didn’t
serve the Attorney General
High v. High (another picky publication case)
 Advice: Get everything exactly right as provided in the rule/form
 Facts: Alleged D was a non-resident and where he resided only, but MSSC found this was null & void
 Rule:
 Have to be a non-resident
 P must state what their street address is
 P must also state what their post office address is
 If you can’t find one of those, you state under oath that after diligent inquiry you aren’t able to
ascertain the street or post office address, or both
 “Where the post office address is given, the street address shall also be stated, unless there is a
statement of oath etc. that it cannot be obtained.”
 This is tricky: Can you street address also be your post office address? Yes sometimes, unless
you have a separate post office address.
 Some places don’t have free delivery of mail (check postal guide)
 There is no free delivery of mail in University, MS (you have to get a post office box)
 Reasoning:
40

If D later is able to show that there was allegations they couldn’t find the person, but D is able to
show that there was correspondence b/t him and P’s lawyer, then it can be set aside under 12(b)(5)
 Proper Procedure: Page 220
 State separately the street address and state separately the post office address (even if they are the
same) (that way if they live there and get mail there then you’ve got them!)
 Another Form of Substituted Service — Ellis v. Milner
 First: Keep in mind there are several times when you serve someone other than the person/entity you are
suing (serve it on a state official)
 Often the Secretary of State; someone like Insurance Commissioner, et al. Check the statutes!
 Know who to serve
 Know the Ellis v. Milner rule below for when service is complete
 Rule: The general rule is that substituted service of process is complete when made upon the designated
state official, therefore receipt by the nonresident defendant of the specified notice of such service is not
what determines the date for completion of process (but when the official got the summons)
 So you need to find out when it was the Secretary of State got the summons
 Note: Lexington Ins. Co. v. Buckley, 925 So. 2d 859 (Miss. 2006)
 Facts: Lexington is out of state insurance corp. that can be sued by serving the Insurance Commissioner.
Lady driving in JXN & was killed when blade flew off of highway lawn-mower and decapitated her.
Suit was brought against Ins. Co. and service of process was served on the Insurance Commissioner.
 When is Service of Process Complete?
 When the insurance commissioner is served, and this triggers the 30 day clock for an answer by D
 Note: Cannot serve the insurance commissioner with a 4(c)(5) - Return Receipt for Non-residents
(because D is a non-resident)[?]
IX. Pleading, Motions, & Default Judgments
A. Pleadings, Motions, & Default Js - 1: Drafting & Answering a Complaint
 Rules
 See 2; Basic Rules of Pleadings: 7, 8, 9, 10, 11. See also 12, 13, 15, 16, 18, 41(a)-(b), 42, 50(a)-(b) (JNOV /
Directed Verdict), 54(c), 55 (default), 56 (summary J), 58, 59, 60, 79
 URCCC 1.05, 4.03
 Drafting a Complaint
 Rule 10 tells you how to structure your case (contents below):
 Circuit Court of Lafayette County Miss.
 Use 8 ½ x 11 inch paper (R.7)
 P v. D
 More than one P, list them all in complaint
 More than one D, list them all in complaint
 In the answer you only have to list the first parties and then “et al.” or “et ux.”
 Docket #
 R.7(a) says what pleadings are allowed and what they are called (complaints, answers, counter-claims, etc.)
 R.2 - What form of action? R.2 - there is only one form of action, the “civil action”
 Complaint Contents:
 Set out complaint contents with numbered paragraphs, and you may also plead in “counts.” See R.10(b).
 1st ¶ contains names and addresses of the parties. R.10(b).
 A count should be a separate statement of one of your theories (negligence, express/implied warranty)
 How Much Depth: Rule 8(a) purports/allegedly makes Mississippi a notice pleading jurisdiction (i.e., short
& plain statement) — We are, but people don’t do this really.
 There has been a backlash, however, on account of the expense of discovery (see Iqbal & Twombly)
 Complaints still generally set out all the counts of the complaint with sufficient clarity
 Since most things settle, you are often trying to convince the other side to settle with the pleadings
and discovery (so you don’t want to hold back too much)
 Must also be a claim for relief. R.8(a)(2)
 9(g) Special Damages
41





General Damages
 Ad Damnum Clause: ask for reasonable amount & such (but also should ask for specific amounts)
 No limit in Circuit & Chancery; $200K in County Court
 New Trend:
 People are trending lately to not specify the amount but to ask for what is credible to recover
 Hypo: You ask for 3 million and jury returns for 5 million. But you can move to amend the
complaint. R.54(c) says that you can’t get a monetary amount for greater than is in your
pleadings or amended into your pleadings
 This clause should be dropped: never know if D will win the motion to reduce damages or if
you will win the motion to amend the pleading.
 § 11-1-59 - Damages in Med Mal
 Complaint in medical malpractice suits shall not state the amount of damages on the complaint.
 This conflicts with Rule 54(c) but MSSC cites this all these time, so what controls?
 There must also be a date & a signature. The pleading or motion shall be signed be the attorney
 Attachments to the Complaint: Profert Rule - R.10(d)
 If some document or written instrument is the basis of your complaint, then you must include it
 Pleading does not have to be “sworn to” (this was a monstrous change from old chancery practice)
 Unless required in the rules (rule 65 for injunctions) or by statute (attachments in chancery 11-1-1?)
 All the summary type remedy statutes must be “sworn to” typically
 Miscellaneous Rules
 URCCC 1.05 - All pleadings, motions, etc., must include the name of the attorney (& address, bar
number, etc.), & if someone different will argue the case you must include their info too
Joinder of Claims (R.18)
 How Many Claims
 You can bring all the things you want in your lawsuit, whether related or not, although they are likely
to be split up by R.42 which gives judge discretion
 You can also sue as many people as you want
 This occurs at the pleadings stage
Miscellaneous
 Scope of Discovery - In Miss. the scope of discovery is the issues in the lawsuit
 Coversheet - Since the AOC is tracking cases/courts in Miss., you also must file a “civil cover sheet” when
you file your complaint (similar to federal court)
 Under Rule 11, the attorney Shall sign the pleading
Special Pleadings (R.9)
 Fraud or Mistake: Must plead with particularity (set out the factual basis for why you are making this
charge of fraud). R.9(b).
 Have to prove this with clear and convincing evidence?
 Special Damages: When items of specific damages are claimed, they must be specifically stated. R.9(g).
 Basically you have to plead these specifically
 If you don’t specifically plead these, then you can’t put on evidence for them or recover them
 Purpose: (1) prevent surprise, and (2) prevent prejudice to D
 Types: Medical Expenses; Funeral Expenses; Lost Wages
 Ex: Puckett Machine v. Edwards, 641 So. 2d 29 (Miss. 1994)
 P was trying to put on evidence of lost profits / consequential damages from breach of contract, and
Court affirmed trial judge holding that this was special damages
 Any consequential damages from a breach of contract must be specifically pleaded
 See list in case (it would be wise to keep this list posted somewhere)
Answering the Complaint (Rule 7 says so)
 Party Names: After initial complaint, don’t have to list all the names of the parties (just put et al.)
 Respond to Numbered Paragraphs
 Rule 11 (doesn’t work well) - Says you have to plead/answer in good faith
 Proper way is to look through the paragraphs and admit any portions you want to admit, and then deny
the remainder of the paragraph
42

Negative Pregnant: a denial so pregnant with an affirmative that it implies an admission
 If you answer by denying w/ extreme specificity then you imply it might be taken as an admission
 When your denials track the pleading too closely, it could look like you are inferring an admission
 “A negative pregnant is an answer in a denial that is “pregnant” with an implied admission.”
 Partial Denial (R.8(b)) - You can say that you don’t have sufficient information to form a belief and
that consequently it is denied
 Affirmative Defenses (R.8(c)) & affirmative matters by way of avoidance
 If you have one of these, you have to plead them or otherwise you cannot put on proof and use it!
 How to Recognize:
 List in 8(c)
 You see the complaint and think “well they have stated a claim, but we’ve got a defense to argue!”
 Then you need to put this in the pleading
 Recent Complications — MS Credit Center Inc. v. Horton, 926 So. 2d 167 (Miss. 2006)
 Deals w/ Affirmative Defenses: If D has affirmative defenses that would be dispositive in the case,
then D must “pursue and raise” the affirmative defense in a timely manner otherwise it is waived
 Pursue it by making a motion & ask the court for a hearing (and if judge forgets, ask again!)
 Since no one knows the exact bounds of “timely” here, it is best to pursue it promptly
 If D tries to bring up an affirmative matter at trial w/o pleading it, then you might want to be dramatic
& say “Your honor, we object; this isn’t in the pleadings; we are Shocked, Surprised, and Prejudiced.”
 Complaint & Answer Review
 Abbot Rule of Thumb
 If you are in doubt about whether to put something in a pleading or not, then put it in there
 MRCP applies to everything in circuit, chancery, and county courts except what the Supreme Court says
are controlled by statute: MRCP 64 & 81 (this is the big one)
 In these you look to the statute first, and use the rules only when there is no statute
 Profert Rule: If you have a claim or complaint having to do w/ a written instrument, then you should (used
to be shall) attach it to the pleading so everyone can see it
 Affirmative Defenses:
 Be familiar with the ones listed in the rule (Rule 8(c)).
 Medical Malpractice Damages Statute - § 11-1-59
 Reasoning might be that a large, preposterous lawsuit makes the papers and harms the Doctor’s
reputation, but the later settlement or dismissal never makes the papers
 Solution: If you are a plaintiff, move to amend and add a dollar amount that reflects the evidence w/ an
amendment b/f the case goes to the jury
B. Pleadings, Motions, & Default Js - Pretrial Motions
 Purpose of a Motion
 This is how attorneys communicate w/ the court
 Writing a letter is insufficient
 Court responds w/ an order or a judgment (how they rule)
 Motions Generally
 Only the imagination will limit the number of motions you can file
 Name the motion creatively to just be whatever you want the court to do
 Movant: This is the one who files the motion
 Burden is on the movant to pursue that motion, stay on the court, & make sure the other side responds
 If you don’t do this the motion will just die
 Motions must be in writing (R.7) unless they are made during the course of a trial or hearing, at which
point you can stand up and orally state the motion and the court reporter will record it
 URCCC 4.03
 All dispositive motions not ruled upon w/in 10 days of date set for trial are deemed denied
 Procedure
 When you file a motion you should also attach a brief (memorandum of authorities)
 Opposing party has 10 days to reply
43

This can really wreck your schedule b/c one side might have spent 6 months on a motion, and then
you only have 10 days . . . .
 You then have 5 days to file a reply to the response
 It is rare that you will get an actual hearing
 Pretrial Motions
 12(e) - Motion for a More Definite Statement: Useful when the complaint is too vague
 12(f) - Motion to Strike: Say that D answered and defended on “contributory negligence” (which we don’t
use anymore in Miss.), then you could move to strike it from the pleading
 Motion in Limine (pretrial exclusionary rulings): If you know something will be inadmissible and you are
fairly certain the other side might try to raise it, then you can file a pretrial motion in limine
 Trying to keep out evidence (mistress or drunk) when it won’t be relevant to the case, only prejudicial
 12(b) - General Defensive Motions:
 12(b)(1) - Subject Matter - Generally is a motion to transfer for lack of subject matter jurisdiction
(unlike federal court’s motion to dismiss) b/c either chancery or circuit will have jurisdiction (unless
something weird w/ exclusive federal jurisdiction or worker’s comp)
 12(b)(2) - Personal Jurisdiction - Generally has to do w/ long-arm statute
 12(b)(3) - Venue - Typically a motion to transfer
 Keep in mind Rule 82(d) about expenses if P obviously brought the suit in the wrong county
 If there a multiple venues that are proper, then P ordinarily gets to choose
 12(b)(4) & 12(b)(5): Typically you move to quash to summons or the attempt to serve it; and you are
quashing b/c you are arguing something was wrong with it (remember also the 120 days limit)
 12(b)(6) - Failure to state a claim upon which relief can be granted (D is typically the one to file this)
 This effectively replaces demurrers
 12(b)(7) - Failure to join a party under R.19
 12(h) Some of the 12(b) motions can be waived if not raised by motion b/f answering or in the answer
 12(c) - Motion for a Judgment on the Pleadings (typical P is the one to file this)
 This also somewhat replaces the demurrer
 Note: A lot of good trial lawyers won’t file a 12(e), 12(c), or 12(b)(6) motion b/c that helps the other side
out (they see what’s wrong & move to amend the pleading); instead they will just impale the other side
 Rankin v. Brokman
 Facts: P started to try to put on evidence at trial that this instrument wasn’t a deed, but was actually a
mortgage. This wasn’t in the pleadings. Again, you probably need to do some acting to illustrate surprise at
P trying to prove these things that weren’t in the pleadings
 Rules:
 A variance can be allowed by consent, but if one party objects then you can’t get a variance
 P should have amended the complaint at some point before trial
 Variance; Dealt w/ in Rule 15(b)
 If evidence is objected to at the trial on the ground that it is not w/in the issues made by the
pleadings, the court may if motioned allow the pleadings to be amended . . . .
 So the notice pleading standard is a trick; it is better to include additional information
 The point of making this motion is to ensure that it is clearly part of the record
 Reasoning:
 This case shows variance is alive and well
 Variance means there is a variance b/t the evidence and the pleadings
 Review - Motions are the only proper way to address the court
 Note: (important to remember this continuum concept)
 Remember a lawsuit is a long continuum: understand from the start of the case how all this will work
 You want to “align” yourself from the get-go w/ pleadings, and then into motions, in such a way that
you are pleading what you need to be pleading; and you are asking for things in motions and discovery
that you need to prove your case
 If things come up in discovery then you need to switch tracks and make a R.15 motion to amend
 Variance is now codifed under R.15(b) - don’t be asleep at the wheel; once it’s in then it’s in
44
 If it is important to you, however, best to move to amend as soon as you get it in so that you
aren’t later disputing in the trial whether it actually “came in” w/o objection
 Cross Ref: Rankin v. Brokman - One side objected and wouldn’t let the other side bring in new
evidence (avoided a variance). This is a good situation to be theatrical about your surprise this new
“issue” / “evidence” is being brought in outside the scope of the pleadings
 This continuum goes along further into the pretrial conference/order; proof at trial; jury instructions;
verdict, & judgment (and even appeal maybe)
 Pretrial Conference
 16 - Pretrial Conf. is a way of life in federal court, and Miss. is heading that way
 Federal System In a Nutshell: You get a trial date early on at the pretrial conference; then you get a
scheduling order
 You get a pretrial order from the pretrial conference.
 Once you have the pretrial order, it supplants the pleadings. So if you have a variance you’ll have to
amend the pretrial order
 State Court: If either side asks for a trial date right after pleadings then you can get one.
 State courts were sometimes having quasi-pre-trial conferences (which were a joke; judge asking
“Can’t y’all just settle this?”)
 The movement, however, is towards a true pre-trial order like the federal system
 Basically things are still a little tough in state court
C. Pleadings, Motions, & Default Js - Bill of Exceptions, Sanctions, Mistrial, & Continuance
 Bill of Exceptions — Shaw v. State
 Note: This is the old name (bill of exceptions), but we still deal with it
 Facts: Deals w/ a case where there’s a court reporter & a court of record, but someone still needs to use a
bill of exception. State made improper statements to the jury during closing. Court reporter didn’t take
down the offensive closing. D just made a motion & didn’t get the material into the record for appealing
 Rules
 MRAP 10 - 2 types of bill of exceptions
 1) § 11-51-75 (not focus of course, but this is occasionally a screw-up)
 Deals with appeals where there is no court reporter and there is no court of record
 Deals w/ appeals typically originating in board of supervisors, zoning issues, & municipal
authorities
 Not justice court; it is a court of record (and b/c you get a trial de novo)
 If you want to appeal from these proceedings you have to conform w/ the Bill of Exception
requirements in the statute (10 days, and some other requirements)
 2) Subsections (d)-(e) (this is the focus of this course)
 Provides provisions for getting things added to the record so that they are available for review
by an appellate court.
 § 9-13-25 - Duties of Court Reporter
 Take down all things except arguments of the parties (so apparently they don’t have to take down
opening & closing arguments)
 Good procedure is to ask court reporter to take down your opening & closing arguments so they
are part of the record
 Note: Parker Tractor v. Johnson, 819 So. 2d 1234 (Miss. 2002) - MRAP 10 was needed
 Appeal for mistrial saying inappropriate material was in the record. On oral argument party claimed
that inappropriate things were said by the judge on the bench. But the court reporter apparently didn’t
take it down (maybe it wasn’t understood by the court reporter; maybe court reporter didn’t take it
down b/c she likes the judge and he basically is her boss and hired her . . .)
 If something crazy gets said, go see if the court reporter took it down, and if not fix it!
 If not, go through MRAP 10(d)-(e) procedures to get the material into the record
 Sanctions
 Rule Basis for Sanctions:
 Rule 11 - The rule basis for sanctions is the same rule we have that requires attorneys to sign filings
45

§ 11-55-1 et seq. - Commonly called 1988 Miss. Litigation Accountability Act
 This was part of Tort Reform
 Be familiar w/ this set of statutes & where it seems inconsistent w/ R.11, that perhaps the appeasing
coexistence by MSSC up to now is not rock solid? (I think this is what he was implying)
 Rule 37 - Discovery Sanctions
 Both of these are increasingly used more and more frequently in state court (some sanctions are huge)
 More sanctions granted in federal court (b/c they are appointed and state judges must face election)
 Vicksburg Refining v. Energy Resources
 Facts: P got a judgment & was going to hold a judgment debtor examination (to find out where their
money is so you can get it). Ordinarily when you summon judgment debtor for exam, the judge isn’t
there. Judgment debtor objected to exam & set a hearing to abate the exam on the same date as the
exam was scheduled (assuming judge would be there). But judgment debtor failed to check and make
sure the judge would be there. Everyone showed up but the judge & nothing could happen
 Cross reference to 81(d)
 Held: Sanctions were appropriate w/in the inherent authority of the court to protect the integrity of the
court’s processes.
 Includes not only willful and intentional conduct, but others (recklessness? negligence?)
 Motion for Mistrial — Selleck v. S.F. Cockrell Trucking
 Facts: On the second trial (after mistrial), D went into jury room and talked w/ jurors and offered one of
them employment. P was pissed and told judge, who wanted to grant a mistrial. But P couldn’t afford to try
the case a third time so judge just gave the jury an instruction (which obviously didn’t work). P appealed.
 Held: MSSC said this couldn’t stand and that there must be a new trial and that D-Cockrell must pay costs
and attorney fees for P that were acquired as a result of D’s mistrial causing conduct
 So the other side will [may?] have to pay all your expenses in the next trial.
 Note:
 Attorney can also cause mistrial
 Continuance (basically a way of life for attorneys) — Viverett v. State
 Essentially means a postponement of proceedings or asking for a later date
 Judge has great discretion in granting or denying a continuance
 Reasoning:
 This case shows you that if you come to rely on always getting a continuance, then you might get
burned sometimes when you aren’t allowed to have a continuance you ask for!
 Hypo: Judge McNeal Story
 Two lawyers (P & D) came to judge and said, well we have a trial scheduled tomorrow and we are
going to continue it . . . . Judge asked why? They said, “Judge, I’m the plaintiff and he is the
defendant and we agree.” Judge notified them that others were depending on the fact that a trial
date had been set, so they were for damn sure have trial in the morning.
 Don’t take for granted that when something is set that you can get a continuance (even an agreed 1)
 What do you do when your chief witness gets sick?
 Rule:
 You must show unremitting diligence to get your witness there (see case for guidelines on what this is)
 You will need to get the witness under subpoena 1st (otherwise you are screwed if they don’t show up)
 The burden is also on you (if your witness is unavailable) to get a statement under oath of what the
witness will testify to and then show it to the court as evidence of why you need a continuance
 Rules & Review
 Bill of Exceptions: This was the old name, now dealt w/ by MRAP 10; It is a way to make something a part
of the record that the court reporter failed to record
 Sanctions: Rule 11(b); 11-55-1 et seq.; 37 (discovery sanctions)
 Think twice b/f asking for sanctions (can cause blowback)
 Continuance: Happen a lot, at times by agreement; keep in mind the judge still plays a role & can deny it
 Viverette v. State: if you can’t get a continuance and you need one then you need to exercise due
diligence to show why
46
D. Pleadings, Motions, & Default Js - Summary Judgment
 Summary Judgment - Rule 56
 Extremely important (cross reference: interplays w/ importance of mindfulness of the case continuum)
 History
 At the precipice of adopting the MRCP, there was argument by P’s Bar that Summary Judgment Rule
was merely going to allow D attorneys to “ride the file” since they are paid hourly
 P’s Bar came around once they realized they could cement liability and focus only on damages w/
partial summary judgment
 56(c) - Standard for Motion for Summary Judgment (memorize)
 Movant asks the court to declare there is no genuine issue as to any material fact, and that the moving
party is entitled to judgment as a matter of law [paraphrased]
 Good to put this language of the standard at the start of your motion
 Go Behind the Pleadings:
 Summary Judgment was revolutionary b/c it allowed you to go behind or pierce the pleadings and
introduce outside evidence to show there is no genuine issue of fact despite the pleadings
 Can get rid of the whole or parts of the case before it goes to trial
 Contrast w/ Motion to Dismiss for Failure to State a Claim (R.12(b)(6)), or motion for judgment on the
pleadings (R.12(c))
 When this was all we had, if P said something that wasn’t true in their pleadings, then you basically
had to go to trial and then eventually move for a directed verdict (wasn’t judicially efficient)
 Has become routine for attorneys to try and attach affidavits and other things to their 12(b)(6) &
12(c) motions, and the court has started indicating that doing that will transform the motion to a
Summary Judgment motion (with all its accompanying strictures and time limits)
 Mechanics
 56(c) - Motion must be served 10 days before time fixed for hearing
 But this wrongly assumes there will be a hearing.
 There is no right to a hearing and the judge has great discretion
 See URCCC 4.03 - Timing for memorandum of authorities
 Judges will often decide the motions on the briefs and motions
 The judge could order an evidentiary hearings, but uncommon (potentially bring in witnesses
and evidence). Typically if a hearing is granted the attorney’s will just argue their briefs
 Briefs: 25 pages (max?)
 State Court you don’t file them with the court, you just serve them on each other
 Federal Court: serve it on the court via electronic filing
 Brown v. Credit Center Inc.
 Somewhat landmark case (first major one dealing w/ R.56)
 Summary Judgment
 Note: wait until you think you have a strong case b/f making a summary judgment motion b/c you
might get bound by law of the case and not be allowed
 Compared to 12(b)(6) & 12(c)
 These types of pretrial disposition motions are different b/c they are limited to the pleadings
 These motions will be converted to summary judgment motions if the trial judge considers anything
outside the pleadings
 Summary Judgment can go behind the pleadings: (See 59 Miss. L.J. 277 (1989))
 How to get behind the pleadings:
 (1) your motion,
 (2) your memorandum of authorities,
 (3) motion itself will have all the evidentiary material attached to it (and whatever you include
must be admissible under evidence rules / affidavits [not sworn by the attorney however since no
personal knowledge] / discovery documents)
 (4) although the rule suggests you get a hearing, you probably won’t
 If you need some testimony, you can just get a deposition or take an affidavit if it is your party
47
 If you need some transcribed testimony, then you’ll need to order it early enough for it to be
transcribed
 Hypo: You’ve got 100 issues of material fact but D still moves for summary judgment; does this end it?
 If there were 3 prima facie elements for P’s claim, but all 100 issues of material fact only went to
the 1st & 2d prima facie elements, and no issues of material fact went to the 3d element: then D’s
motion should be granted!
 Memorize Controlling text of R.56 - No issue of material fact & entitled to judgment as a matter of law
 Be contemplating summary judgment from the start of the lawsuit (you want to both be prepared to file
a motion & you also want to be prepared to respond to a motion — as you’ll only have 10 days).
 R.56(f) - You can ask for a continuance / additional time to take depositions or get affidavits so you
can respond to the motion.
 But you have to convince the judge of what the witness will say
 Interplay w/ Right to Jury Trial:
 While you do have a right to a trial by jury, if there are no materially disputed facts for the jury to even
decide, then disposing of the case by summary judgment is not improper
 Partial Summary Judgment - R.56(d)
 Judge can grant partial summary judgments to take certain issues out of the case
 Recent Case — Scottsdale Ins. v. Deposit Guaranty, 733 So. 2d 863 (Miss. 1999)
 D moved for summary judgment, P did not move (but responded), and the judge looked at the
briefs and felt like it really should be disposed of in favor of P (the non-movant)
 Held: Permissible to grant the summary judgment motion in favor of the non-moving party if the
case merits it
 Brown v. Credit Center:
 Discusses partial Summary Judgment
 Rules:
 Mere denials in a summary judgment motion will get you nowhere
 Objecting to Affidavits: If you think there is a problem with an affidavit to form, then you need to
make a R.12(f) motion to strike
 If there was a crazy expert affidavit filed to try and show an issue of material fact, then you
would move to strike it.
E. Pleadings, Motions, & Default Js - Trial & Post-Trial Motions
 Motions During & After Trial - Overview
 Commence a Lawsuit - File a complaint
 R.41(a) Voluntary Dismissal (sometimes called “nonsuit”)
 Trick is will this be w/o or w/ prejudice (w/o means you can bring it again later)
 Before D files his answer or a motion for summary judgment (whichever comes first), P can voluntarily
dismiss his suit w/o leave of court
 After D answers or moves for summary judgment you have to get leave of court to voluntarily dismiss
 Judge can also impose conditions for movant getting dismissal w/o prejudice (ex.: costs)
 Trial - Procedure
 P starts - Puts-on case in chief
 P rests - At this point some things can happen
 Jury Trial - You stand-up and say you want to make a motion (nothing else while jury is there)
 Move to exclude the evidence presented by P and ask for a directed verdict. R.50(a)
 Federal courts call this Motion for Judgment as a Matter of Law
 Basically asking the court to take this away from the jury; thus you need to show the court there is
no factual issue
 So if P has three prima facie elements for their case, they have to prove them all
 Get up and tell the court how P has not met all the elements
 Court will review evidence put on in light most favorable to P, & if there still wasn’t sufficient
evidence to meet the various prima facie elements then directed verdict will be granted
48

Judge may refuse to hear your motion, he has discretion; but at least preserve your request for a motion
in the record
 Judge may also incorrectly say he is reserving the directed verdict, but that isn’t what happens
 D can only ‘preserve’ the directed verdict motion if D just stops and doesn’t put on a defense and
goes ahead and lets the case be sent to the jury
 Motion to Reopen — Nelson v. Home Ins. Co
 Facts: P was making a claim for stolen guns, and failed to put on proof of the value of the guns
 Procedure: Stand-up and request to be allowed to reopen the case in chief b/c the evidence is
readily available and accidentally left out
 Rule: It is an abuse of discretion not to allow you to reopen your case to put on more evidence
 Note: You can also get in your evidence during D’s case in chief, if the opportunity presents itself
 D puts on case in chief, then rests; and P rests
 At this point either side may move for a directed verdict (P would move for a partial directed verdict to
leave only the damages for the jury)
 Note: This is not a renewal of the earlier directed verdict motion; this is a new one
 Judge is supposed to overrule a motion for directed verdict unless it is absolutely clear it is appropriate
 See JNOV below; inefficient to not at least see what jury says first
 If, for example, jury returns verdict for P for $1 million. (remember you should have a judgment ready
to be signed at this point)
 Now that you have a judgment, you must enter it under R.58 & 59: “Entry of Judgment”
 This means taking it to the clerk’s office and getting it entered on the docket
 This starts the time clicking for an appeal and other important matters
 Entry of judgment starts 10 day time period for post trial motions
 R.50 - D will move for a JNOV (judgment notwithstanding the verdict)
 Federal law calls this a renewal of a motion for judgment as a matter of law
 Federal law bars this motion unless you make the earlier one
 New Hampshire Ins. Co. v. Sid Smith
 Rules: May make a motion for JNOV w/o making a motion for a directed verdict at trial
 But if you do this you are a dumbass, b/c the judge won’t be very predisposed to ruling
for you when this is the first time the judge has heard this argument
 If judge is saying to himself, if there ever was a time when directed verdict was proper, this is
it; then the judge should grant the JNOV
 P can appeal, and then MSSC can either affirm the judge or simply reinstate the jury verdict
 This is more efficient than granting directed verdict b/f the jury returns a verdict b/c you would
have to retry the entire case
 Often R.50 is made hand-in-hand w/ a R.59 new trial motion (and judge should give a ruling on it
so that in the event MSSC reverses, they’ll know whether or not there should also be a new trial)
 Bench Trial - Involuntary Dismissal
 In bench trial, P puts on case in chief, rests, and then D doesn’t think P has proved prima facie elements
 D should move for an involuntary dismissal pursuant to R.41(b)
 In federal court you will move for a judgment on partial findings 52(c)
 You’ll be making the same argument you would make in a jury trial, but in a bench trial the test differs:
 Involuntary Dismissal under 41(b): Davis v. Clement, 468 So. 2d 58 (1985)
 With a non-jury trial, the judge can just weigh the evidence, and they don’t have to look at it in the
light most favorable to P (since the judge ultimately decides it anyway)
 Motions During Trial - Review
 Bench Trial in State Court
 41(a) - D can move for involuntary dismissal after P’s case in chief (failed to prove essential element)
 Jury Trial In State Court
 50(a) - Directed Verdict (same arg. as involuntary dismissal - P failed to prove an essential element)
 Judge may say he is reserving ruling, but he isn’t really
 Viewed in the light most favorable to non-moving party
 After D’s case in chief in jury trial
49

Judge might think a 50(a) motion would be appropriate, but here the better thing is for it to go to the
jury first and then if they think the jury gets it wrong he might grant a JNOV or New Trial
 Judge really shouldn’t grant the directed verdict here
 Jury Returns Verdict for P (should be immediately followed by the judgment getting signed and entered)
 If it is a jury trial have one ready; if in chancery you may not be able to do this immediately
 R. 58 & 79 - Get judgment entered b/c time to file appeal won’t start until this is done
 Triggers a 10 day, non-enlargeable window for post-trial motions
 Post Trial Motions - Review
 50(b) & 59 motions generally coupled
 R. 50(b) JNOV (federal: motion to renew motion for judgment as a matter of law)
 In federal court you must make one during trial to get one after
 In State court, you are not required to make one during trial, but on all accounts you should
 R. 59 - New trial (say there were a number of errors and we want a new trial)
 A number of issues are waived on appeal if not raised in this motion:
 Verdict was against the overwhelming weight of the evidence (give trial court chance to fix it)
 R. 52(b) - Motion for Additional Findings (this is basically a motion for a rehearing)
 Additurs & Remittiturs - § 11-1-55 (p. 225)
 You can ask for these or judge/appellate court can do it sua sponte
 These are coupled w/ the R.59 motion for a new trial
 Court has discretion to order an additur or remittitur (Note there are no additurs in federal court)
 Remittitur: judge state on there that the finding was biased, against overwhelming weight of evidence, etc.
 Usually judge will say to P that he is going to order a new trial unless P accepts a remittitur of X dollars,
and he needs to give the parties a certain amount of time to respond
 Additur: Court will often say ordering a new trial (maybe just on damages), unless D accepts the Additur
F. Pleadings, Motions, & Default Js - Default Judgment, Counterclaims, & Cross Claims
 Default Judgments - R.55
 Forms to look at: 36, 37, 38
 Time to be taken: 30 days after complaint filed [(12)(b)?]
 Steps to take a default: (1) Entry of Default, (2) Default Judgment itself
 Start with Entry of Default under 55(a) - There is a form and the Clerk makes the entry
 We are moving towards the default judgment itself, which has to be signed by the judge (and
circuit judge might be out riding the circuit and you must find him or wait)
 If D has appeared (55(b)) then you must give 3 days written notice you’re taking a default judgment
 State court requires a pretty good showing for an appearance that you intend to defend it
 Wheat v. Eakin, 491 So. 2d 523 (Miss. 1986)
 Wheat (the party) had sent a rude letter about P being full of bullshit, and P moved to strike
it and took a default judgment
 But the court overturned and found that although this wasn’t formal it was sufficient for an
“appearance” meaning that 3 days written notice was required
 If the case has been properly set for trial and D doesn’t show up then you can take a default
[judgment?] w/o an entry of default
 Hearing to Determine Damages - R.55(b) (writ of inquiry)
 This is to distinguish liquidated damages from unliquidated damages (and determine the later)
 Unliquidated - Tort, injuries, breach of contract
 You have to put on proof of this, but when D isn’t present it is easy to put on proof
 This has to be made part of the record (court reporter and everything)
 Liquidated - The amount is certain (for example a promissory note at 8% interest)
 Set aside Entry of Default - 55(c)
 Can be set aside for good cause shown
 But is actually pretty easy to set aside an entry of default b/f the judgment has been entered
 Might be worth boo-hooing b/f the judge and begging (they have broad discretion)
 Set aside Default Judgment - 60(b)
50


This is much harder to do than setting aside an Entry of Default
Six Bases for Asking a Final Judgment Be Set Aside
 It is important to specify which one you are using
 Six Months to Make These - Proceedings made where judgment entered
 60(b)(1) Fraud, Misrepresentation, or Other Misconduct
 60(b)(2) Accident or Mistake
 60(b)(3) Newly discovered evidence (tough to show)
 Within a Reasonable Time
 60(b)(4) - Judgment is Void (this can really be brought at any time)
 60(b)(5) - Release [settlement?]
 60(b)(6) - Catch-all - Any other reason justifying relief
 The court is getting much tougher on this one
 You can’t have a reason under 60(b)(1) - (5)
 Burkett v. Burkett - This was somewhat of a high-water mark on allowing default judgments to be
turned over
 Review: If you get an Entry of Default against you, move as soon as possible to fix it (much harder
once there is an actual Default Judgment
 Cross Claims & Counterclaims - R.13
 Note: Good to warn your client that when you file a suit, there is a chance a counterclaim could be filed
 Compulsory Counterclaim - R. 13(a) - Same transaction or occurrence, or series of transactions or
occurrences
 Compulsory counterclaims are not always so clear in business litigation
 Good to discuss with your client the various types of business dealings your client had with P
 When in doubt, raise the counterclaim so that you don’t wind-up with it being barred
 Three Exceptions
 (1) If already the subject of another pending action
 (2) Principal claim is by attachment of a ‘res’ only, and you have a ‘personal’ counter claim
 (3) Separate Verdicts - Pham v. Welter - (this one isn’t in the federal rules)
 Hypo: P sues D and D counterclaims on P. Jury goes out and thinks D owes P $100K, but that
P also owes D $75K. One solution was to just give P $25K (offsetting the awards). But if there
is insurance these claims ought not be offset and paid by the insurers
 If you have a claim and a counterclaim, then you make sure the jury is instructed to set out the
judgments separately in different verdicts.
 Thus one verdict would be for P for $100K, and one verdict would be for D for $75K
 Permissive Counterclaims - R.13(b)
 Once you get sued, you can bring in all the claims you want (but they probably won’t get tried
together)
 Cross Claims - R.13(g)
 Always permissive
 Claim brought by one party against another party, which are both similarly aligned
 Commonly: D1 v. D2
 Uncommonly: P1 v. P2 — This requires there first be a counterclaim from D
X. Discovery
 Discovery
 General Observations
 Metaphor: Lawyer as salesman; client as having a product you want to sell by introducing evidence as
marketing tools & you want to besmirch the opponent by knocking down his marketing material
 Info; how you get it; what’s the best way to get it; how to use it when you get it
 Settlement Rate: Since the settlement rate is so high you need to be prepared to try or settle your case
(and to thus see the strengths and weaknesses of your own case, and your opponents)
 Discovery: Allows you to see your opponent’s case’s weaknesses.
51

Also lets you see the weaknesses in your own case often based on what the opponent is asking for
or forcing you to disclose about your case
 Interrogatories
 Written Questions - Seek info; written responses under oath to propounded questions;
 Garbage in; garbage out: If you send a narrowly drawn interrogatory then you’ll get a bad, narrow response
 With a broadly drafted interrogatories you’ll get broader answers b/c the attorney is bound if they
comply with the rules
 Procedure
 Send questions and opponent has 30 days to answer under oath
 Good to actually get them done under oath b/c the client is bound to what goes in them (just like
testimony) [would you call in a notary and have the client sign in their presence?]
 Responses as Evidence - These things are good for use in the trial as evidence if they are admissible in
evidence generally under the evidence rules
 Bad For: bad for getting spontaneous information
 Example: If you want a candid story about how someone drove their car through an intersection don’t
propound it in an interrogatories b/c the answer will be carefully drafted
 Good for: good for getting background information
 (a) Names, addresses, phone numbers, present/prior employers, people who have personal knowledge,
names of witnesses
 You want to make sure you know who the employers/employees are so that you don’t
inappropriately contact someone ex parte on accident
 Always important to know who your witnesses are
 Hypo: You are at trial and witness is there who wasn’t disclosed when asked in discovery
 Judge will withhold the witness b/c you haven’t truthfully disclosed it in the interrogatory
 Moral of Story: Answer truthfully and fully when you are filling out interrogatories
 (b) In depth, encyclopedic background information about a person’s injuries and the exact dates they
went to the doctor
 To answer the Interrogatory you are obliged to go seek out the info in answering the questions
(maybe if he waited a while or didn’t go that often then he isn’t so hurt)
 Identity of hospital/doctors/prior hospitalization can give you key evidence
 Helpful for testing veracity
 (c) Earnings, prior earnings
 Maybe someone who is earning more now than b/f a claim for wrongfully being fired would have a
hard time making a claim of lowered wages / diminished salary
 (d) Who has given statements, and who has those statements; and other documents
 You may not be able to easily get their statement, but if they reference it during a deposition then
you can look at it (but need to know they had given a statement at least)
 (e) Products Liability - Knowing how much the product was tested b/f release & similar accidents
 (f) Experts: Learn who they are (name, opinions, basis of opinions) & b/f you interrogate the other
side’s expert find out what sort of articles they have written
 You can get an expert for anything, so best to find out what they’re about b/f you interrogate them
 What cases has he testified in (federal rules require disclosing this)
 Maybe contact the other attorneys who were opposite of him
 (g) Contention Interrogatories: Smoke out your opponent by trying to find out their contentions of fact
 And contentions of law if you can get away with it
 Do you contend: the product was misused; P was also negligent; the bearing failed
 Then smoke them out on the facts or elements of a claim
 Requests for Production of Documents
 (a) Common / Frequently Used Aspect: requesting production of each & every document used . . . .
 Procedure
 Propound the request; receiver has 30 days to respond; provide the documents in ordinary way kept
in business or in the way requested
 Often the documents show-up in a big disorderly stack (not as the rule requires / unacceptable)
52

This is unsatisfactory and unacceptable because:
 At trial document used and you object thinking you didn’t have it (probably was in the stack)
 Will the judge keep the document out? Likely not b/c it is one’s word against another’s
 You’re screwed unless you did something when you originally got the document stack:
 Two methods:
 Bate stamp numerically all the documents so you have proof of what you have versus
what he thinks (maybe request an index?)
 Or force other side to identify the documents being produced with an index (don’t fall
in the trap of just taking the documents)
 Other Procedural Thought
 Just because you get a good document from the other side doesn’t mean it will be admissible
 May need someone to testify to its authenticity, etc. (evidence rules)
 (b) Opportunity to Inspect / Test / Sample
 Times when you have a product or something like that and you want to disprove/discredit a creative
defense
 You can go and take photographs and take an expert with you to evaluate/test the product/place
 (c) Opportunity to enter Designated Lands
 Hypo: Crop dusters in the Delta spraying rice weeds and it drifted onto some cotton
 Rule 34 gives you the opportunity to go out there and test the area or the potential cotton yields
 Rule 34 in Context
 Products Liability: manuals, tests, memos, engineer’s plans, etc.
 Contracts: Memos, drafts, original contracts (earlier drafts can be informative of the actual intent)
 Business Litigation: Business records, annual reports & tax documents (when worth is at issue)
 Federal vs. State Practice: An Aside
 Generally discovery differs b/t the two systems
 Federal: smart people developed good sounding rules, but application of theory is a different story
 FRCP 26(a) - Mandates Initial Disclosure (mandatory “voluntary” discovery)
 P must, w/o a request, provide you with names of witnesses P may use or who support his case (same
for D)
 What about witnesses P doesn’t disclose under 26(a)? What do you do?
 At pretrial conf. you see a new name that wasn’t disclosed and discovery deadline is over
 What do you do: Move to strike the witness; ask to extend discovery; object to the testimony at
the pretrial conference (and the judge who is going to rule over the case will decide it instead
of the magistrate — motion in limine) (these are all discretionary)
 Problem is there is a reluctance among judges to penalize violators and tendency of appellate judges
(5th Cir.) to reverse plaintiff awards
 You want to resist causing trial error that could be appealed b/c if you are P then the likelihood of it
getting overturned is high
 This can play into what types of evidence objections you make (but probably better to do an in
limine attempt than attempt at trial in front of the jury - they think you’re hiding something)
 Request for Admissions
 Overview - Most useful tool in toolbox
 Responses can be admitted into evidence if otherwise admissible
 An admission to a request is conclusive for the thing asked (means that it can’t be rebutted)
 So if opponent wants to put on contrary evidence you should be up objecting to it
 Coercive Effect: If you deny something that you shouldn’t have and then other side proves it up
 Then you can recover the expense to prove this denied admission at trial (unless was reasonable)
 How they work:
 Must be responded to in 30 days
 Opponent must admit, deny, or object (or admit/deny in part)
 Failure to respond timely deems the request admitted
 Motioning the court to recognize this is superfluous and gives other side a chance to fix it, so if the
other side neglects to respond to one of your request for admissions, just don’t do anything
53

Put something in there that would end the case (admit your client is negligent; that you owe me a
million dollars) — That way if they don’t answer them the lawsuit is over
 Requests for admissions are like ticking time bombs
 What can you use them for?
 Any darn thing you can think about asking
 Ask about an exhibit being a true and accurate copy (elements of admissibility of documents)
 Contract terms (admit it contains x, y, z)
 Admit the contract isn’t ambiguous
 Admit the contract is the entire agreement / not modified
 Admit who drafted it (for purposes of construing it against drafter)
 Admit scope of employment
 Depositions
 Overview
 Generally involve art of cross examination (hard to teach and something you just have to understand)
 Sitting someone in front of a court reporter / videographer and getting the testimony on the record
 Common Tactics/Problems
 Speaking objection: Attorney objects & in his phrasing hints to the witness how they should answer
 Resolution: At the beginning of deposition come to a resolution, and stipulate the deposition is being
taken in accordance with MRCP/FRCP and can be used in trial as permitted (also stipulate that
objections as to content are reserved).
 This way you can respond when the attorney makes one of these objections that what they are
doing is inappropriate and if you had an objection to form then they just had to say that
 If they persist with inappropriately suggesting things to the client you shut down the deposition
 30(b)(6) Depositions
 Corporation has to decide who is going to testify on its behalf after you specify the area you want to
talk about
 Then this deposition is admissible at trial
 Puts the burden on the Corporation (not you who knows nothing about who can speak for the Corp)
 Discovery Follow-ups (Abbott)
 State v. Federal Discrepancies
 Mandatory Initial Disclosures likely not coming to State
 Responsiveness: Many attorneys in Miss. just don’t respond in a timely manner until you chide them on
with threats of motions to compel
 Interrogatories
 You can respond late (after 30 days), but if you respond after 30 days w/o having gotten an
extension of time you waive your right to object to the interrogatories
 Requests for Admissions - R. 36
 If you don’t respond to these they are deemed admitted after 30 days
 You can’t respond late b/c they are already deemed admitted
 You can make a motion for leave to withdraw the admissions and ask to submit new answers (but it
is in discretion of trial judges who increasingly don’t grant this)
 Scoggins v. Baptist Mem’l Hosp., 967 So. 2d 646 (Miss. 2007)
 Failed to respond to requests for admissions, trial court wouldn’t let him withdraw his
admissions, and there were some damaging requests that essentially ended the matter
 Expert Witnesses
 URCCC 4.04 & U Chanc. R. 1.10 - You cannot use an expert at trial unless you have given the other
side 60 days notice
 However this has been interpreted differently. City of JXN v. Perry, 764 So. 2d 373 (Miss. 2000)
 Jackson brought two expert witnesses to trial; Jackson argued, and trial court & MSSC agreed,
that this rule only restricted expert use if other side asked first in discovery about experts
 Rule: In every suit ask whether there will be any experts at trial & who they are, otherwise they
could surprise you
 Mixing Discovery Devices (i.e., request for admission + interrogatory)
54


Ask for an admission, and then after it state that if you deny then require a certain answer be given
Nothing in the rules say you can’t — good way to hold someone’s feet to the fire
XI. Juries




 Rules: 38, 47, 48, 49, 51
R.38
 (a) - Right to trial by jury is preserved (but Const. controls regardless of what MSSC says
 (b) - Waiver of Jury Trial
 In federal court you must make an early and timely request for a jury trial
 In state court, both parties have to agree to waive the right to jury trial in writing (not done that often)
R.47 - Voir Dire of Jury (questioning out of the venire)
 See also URCCC - 3.05, 4.05 (also check for local judge’s rules/standing orders)
 Overview
 Given the opportunity to question the jurors (generally as a group)
 On rare occasion you are allowed to send out a questionnaire in a big case
 Challenges: Two Types
 Challenge for Cause - Someone couldn’t be eligible by bias or conflict of interest
 But when the remaining pool starts to get small the judges might allow some of these types of
people to stay on
 Peremptory Challenge - you can challenge the juror for anything you want, unless the other side can
show you are challenging someone for race or gender (Batson challenge)
 12 Person Jury - Each side gets 4 peremptory challenges
 6 Person Jury - Each side gets 2 peremptory challenges
 Note: Judge can allow more
 47(c) Amend - Each side gets the identical number of peremptory challenges
 So if there is 1 P and 16 Ds, and D gets 16 peremptory challenges then so will P
 Number of Jurors:
 Circuit (and Chancery) Court: 12 jurors (9 of 12 to return a civil verdict for the jury)
 Federal court requires the verdict to be unanimous
 Chancery will probably only have a jury in a will contest
 County Court: 6 person jury (5 of 6 to return a civil verdict)
R.49 - Types of Verdicts
 General Verdict - 99% of the time you get this
 “We the jury find for P/D . . . .” And that is about all you get
 Special Verdict - Uncommon
 Facts and such are so tangled that jury can’t really sort it out
 The jury is given a sort of questionnaire, but uncommon and generally overturned easily
 General Verdict Accompanied by Answers to Interrogatories
 Jury not only returns a verdict but also has to answer specific questions
 Questions can be good b/c it forces the jury to think about things
R.51 - Jury Instructions
 See Prosecutors Manual in Textbook (this is a Civil Practice course, but the instructions are same)
 Court giving the jury the law
 Back to the idea of a continuum of your theory of the case, jury instructions will play into this
 When Given
 Judge/Court reads the jury instructions to the jury
 Jury instructions are read b/f closing arguments are given in state court
 In federal court the instructions are read after the closing arguments
 Limited - Must limit your number of instructions
 Typically limited to 6 substantive instructions, but you can and should ask early if you want more
 Timing - Must be due by the pretrial, or it not w/in 24 hours of the trial (or whenever the judge says)
 Objections (R. 51(b)(3)):
 “All objections shall be stated into the record and shall state distinctly the matter to which objection is
made and the grounds therefor.”
55

Objecting that the instruction is not the proper law is not a good objection
 But you need to have your trial briefs ready to show the court what the law is and specifically show
them the law
 If not appropriately objected to during trial, then you are barred from objecting on appeal
 Bad Instructions - Don’t fudge on the law or try to trick/persuade the judge to allow a jury instruction that
doesn’t accurately reflect the law b/c it could be overturned
 § 11-7-155 - Judge in a civil case shall not sum up or comment on the testimony, or charge the jury as to the
weight of the evidence
 Source of Instructions
 Model Jury Instructions (currently being updated)
 Borrow instructions from other attorneys
XII. Statute of Limitations
 Source of SOLs
 There is no reason to them; they are statutory and arbitrary
 There are different statutes for different claims (they differ wildly)
 § 15-1-5 - Cannot be changed by contract
 § 15-1-7 - Limitations on Actions to recover
 10 years for ejectment
 § 15-1-13 - Adverse Possession
 10 years for adverse possession
 § 15-1-23 - Deficiency Suits
 When collateral on a loan (either real or personal property) ends up being worth than less was originally set
on the note/security
 Determined at foreclosure - so when they foreclose they will have a deficiency of how much you still owe
 Then they will have 1 year to bring this suit
 § 15-1-35 - Limits for Certain Torts
 8 Intentional Torts with 1 year limitations period
 Libel, slander, false imprisonment
 There are other intentional torts not listed and MSSC has been unclear over whether this 1 year limit (or the
general 3 year limit) applies
 If you have something that looks like an intentional tort, then be on the safe-side an file w/in 1 year
 § 15-1-36 - Medical Malpractice Cases
 2 year Statute of Limitations (really 2 yrs & 60 days), but there is also 7 year period of repose (2 years does
not begin running until discovery of the act of negligence or whatever the suit is based upon, but not past 7
years)
 Discovery Rule: There is no basic discovery rule past 7 years total unless:
 Medical instrument/item left inside you
 Fraud or something like that used to conceal the cause of action
 Disabilities (remember traditionally infancy to 21 years and NCM)
 Infancy: disability is removed when the infant reaches 6 years of age
 Notice (subsection (15)) - to bring a medical malpractice suit must do two things
 Must consult w/ an expert or equivalent (this is under another statute but worth knowing)
 Must give 60 days notice that you are going to sue before you file the suit
 How does this impact the SOL when you are barred from suing for 60 days?
 Pope v. Brock: Facts - Gave notice of suit 3 days b/f SOL ran & then filed suit on the 60th day
 Held: The medical malpractice SOL is really 2 years + 60 days (you just add the 60 days onto
the 2 years)
 § 15-1-57 (when person prohibited not to sue) was construed to give this extension of time
(2 years + 60 days) b/c it said that the SOL wouldn’t run if a person were barred from
suing by some statute or law
 § 15-1-41 - Construction of Improvements to land (real property)
 6 year statute of repose (meaning there is no discovery rule) but doesn’t apply to the person actually living
there, but instead to the person who built/constructed it
56
 Basically have 6 years from the date plans were being provided or contractor was providing it
 § 15-1-43 - Judgments
 Once you get a final judgment you want to get that judgment “enrolled” in the land records
 Should happen automatically in the county where judgment obtained
 But if the person has property in some other county, then get an abstract of that judgment and go get it
enrolled in that county
 Must do this (getting it enrolled places and collected) w/in 7 years
 But you can renew the judgment for additional intervals of 7 years infinitely
 Recent amendment made renewing judgments much easier
 § 15-1-49 - General Statute of Limitations
 3 years is the general statute of limitations for everything not specifically enumerated by another statute
 Statute of Limitations does not begin accruing until P has discovered or should have discovered by
reasonable diligence the cause of the injury
 Angle v. Coppers Inc., 42 So. 3d 1 (Miss. 2010)
 Held:
 15-1-49 does not read the same way that the medical malpractice suit reads regarding the SOL not
beginning to run until discovery of injury, but not to exceed 7 years.
 Statute runs from discovery of the injury, not the cause of the injury — problem is you may know
someone is hurt but not know who is the cause or who to sue
 § 15-1-51 - Suits by or against the sovereign (state & all subdivisions)
 Statute of Limitations periods (all these statutes we are talking about) do not run against the sovereign
 But they do run in favor of the sovereign (you can’t adversely possess their land, but they can adversely
possess yours)
 § 15-1-59 - Disabilities Savings Statute
 Infancy and NCM
 Longest you can possibly be disabled is 21 years max (unless changed by another statute)
 Plays into title checks b/c you have to check back 31 years (10 years adverse possession + 21 years
maximum for disabilities savings statute)
 Miss. Torts Claims Act (MTCA)
 Note:
 Note: Although most all SOL statutes are in Title 15 of the Miss Code, there are also some specific
statutes elsewhere that specify outside of Title 15 (i.e., wrongful death and Miss Torts Claims Act)
 Specifies 1 years statute of limitations against the sovereign
 The savings created by Title 15 (for minors) only apply to statutes of limitations in Title 15,
 If legislature creates a SOL for a specific statute outside of Title 15 then there is no savings clause
unless specified somewhere else
 When originally created the MTCA had no savings clause built into it so there was a 1 year SOL for
everyone including infants and NCM!
 Legislature attempted to amend this to add the savings clause and make them effective retroactively
 But this was not permissible under our constitution (b/c once a suit is barred by an SOL then it
becomes vested as barred and cannot become unvested)
 See Univ. of Miss. Med. Ctr. v. Robinson (2004)
 § 15-1-65 - SOL Borrowing Statute
 History - People whose claim had expired elsewhere could be brought in Miss. if not expired
 Basically - If the statute has run in another state against the non-resident, then you use that statute and it is
barred here . . . unless
 Unless it accrues against a resident of the state. See Rittenhouse v. Mabry
57