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LeBlanc v. Allstate Insurance Company3/7/2002
urthermore, the court, while applauding counsel's desire not to pursue a frivolous lawsuit, finds that a better cause of action would have been to serve Allstate with process within the time allowed, then dismiss Allstate as a defendant party at a later date if the policy information did not arise during discovery.
Therefore, the court finds that the plaintiff has failed to show good cause for not serving process upon the defendant Allstate and hereby grants Allstate's Motion to Dismiss with Prejudice since the statute of limitations has run in this matter.
. The trial court did not abuse its discretion in dismissing the complaint as to Allstate. This Court has not been supplied substantial evidence to support the determination that the trial court abused its discretion. As stated by the trial court, Allstate could have been served the complaint in compliance with M.R.C.P. 4(h) and then released as a defendant when further information became available. LeBlanc never demonstrated that all discovery methods available under the Mississippi Rules of Civil Procedure had been exhausted.
. However, the trial court did err in dismissing the complaint with prejudice rather than without prejudice. See Watters, 675 So.2d at 1243. M.R.C.P. 4(h) requires that if service of the summons and complaint is not made upon the defendant within 120 days, "the action shall be dismissed as to that defendant without prejudice." Therefore, we modify the trial court's decision to be without prejudice.
. Furthermore, LeBlanc never sought an extension of time from the trial court to perfect service. This Court in Crumpton v. Hegwood, 740 So.2d 292, 295 (Miss. 1999), upheld on appeal the trial court's decision to extend the 120 days after filing of the complaint for service for 60 additional days citing excusable neglect even though the 120 days have expired prior to the request for the 60 day extension. Therefore, LeBlanc's argument does not suffice for excusable neglect for failure to serve Allstate within the time prescribed in M.R.C.P. 4(h).
CONCLUSION
. For these reasons the Lowndes County Circuit Court's judgment granting Allstate's motion to dismiss is affirmed, but modified to be without prejudice.
. AFFIRMED AS MODIFIED.
PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ, CARLSON AND GRAVES, JJ., CONCUR.
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