Rule 4. SUMMONS

(a) Summons: Issuance. Upon filing of the complaint, the clerk shall forthwith issue

a summons.

(1) At the written election of the plaintiff or the plaintiff’s attorney, the clerk shall:

(A) Deliver the summons to the plaintiff or plaintiff’s attorney for service under

subparagraphs (c)(1) or (c)(3) or (c)(4) or (c)(5) of this rule.

(B) Deliver the summons to the sheriff of the county in which the defendant

resides or is found for service under subparagraph (c)(2) of this rule.

(C) Make service by publication under subparagraph (c)(4) of this rule.

(2) The person to whom the summons is delivered shall be responsible for prompt

service of the summons and a copy of the complaint. Upon request of the plaintiff, separate

or additional summons shall issue against any defendants.

(b) Same: Form. The summons shall be dated and signed by the clerk, be under the

seal of the court, contain the name of the court and the names of the parties, be directed to

the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the

plaintiff’s address, and the time within which these rules require the defendant to appear and

defend, and shall notify him that in case of his failure to do so judgment by default will be

rendered against him for the relief demanded in the complaint. Where there are multiple

plaintiffs or multiple defendants, or both, the summons, except where service is made by

publication, may contain, in lieu of the names of all parties, the name of the first party on

each side and the name and address of the party to be served. Summons served by process

server shall substantially conform to Form 1A. Summons served by sheriff shall substantially

conform to Form 1AA.

re are multiple

plaintiffs or multiple defendants, or both, the summons, except where service is made by

publication, may contain, in lieu of the names of all parties, the name of the first party on

each side and the name and address of the party to be served. Summons served by process

server shall substantially conform to Form 1A. Summons served by sheriff shall substantially

conform to Form 1AA.

(c) Service:

(1) By Process Server. A summons and complaint shall, except as provided in

subparagraphs (2) and (4) of this subdivision, be served by any person who is not a party and

is not less than 18 years of age. When a summons and complaint are served by process

server, an amount not exceeding that statutorily allowed to the sheriff for service of process

may be taxed as recoverable costs in the action.

(2) By Sheriff. A summons and complaint shall, at the written request of a party

seeking service or such party’s attorney, be served by the sheriff of the county in which the

defendant resides or is found, in any manner prescribed by subdivision (d) of this rule. The

sheriff shall mark on all summons the date of the receipt by him, and within thirty days of the

date of such receipt of the summons the sheriff shall return the same to the clerk of the court

from which it was issued.

(3) By Mail.

(A) A summons and complaint may be served upon a defendant of any class

referred to in paragraph (1) or (4) of subdivision (d) of this rule by mailing a copy

of the summons and of the complaint (by first-class mail, postage prepaid) to the

person to be served, together with two copies of a notice and acknowledgment

conforming substantially to Form 1-B and a return envelope, postage prepaid,

addressed to the sender.

(B) If no acknowledgment of service under this subdivision of this rule is

received by the sender within 20 days after the date of mailing, service of such

summons and complaint may be made in any other manner permitted by this rule

e served, together with two copies of a notice and acknowledgment

conforming substantially to Form 1-B and a return envelope, postage prepaid,

addressed to the sender.

(B) If no acknowledgment of service under this subdivision of this rule is

received by the sender within 20 days after the date of mailing, service of such

summons and complaint may be made in any other manner permitted by this rule.

(C) Unless good cause is shown for not doing so, the court shall order the

payment of the costs of personal service by the person served if such person does

not complete and return within 20 days after mailing the notice and

acknowledgment of receipt of summons.

(D) The notice and acknowledgment of receipt of summons and complaint shall

be executed under oath or affirmation.

(4) By Publication.

(A) If the defendant in any proceeding in a chancery court, or in any proceeding

in any other court where process by publication is authorized by statute, be shown

by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident

of this state or not to be found therein on diligent inquiry and the post office

address of such defendant be stated in the complaint, petition, or affidavit, or if

it be stated in such sworn complaint or petition that the post office address of the

defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the

affidavit be made by another for the plaintiff or petitioner, that such post office

address is unknown to the affiant after diligent inquiry and he believes it is

unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or

uch sworn complaint or petition that the post office address of the

defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the

affidavit be made by another for the plaintiff or petitioner, that such post office

address is unknown to the affiant after diligent inquiry and he believes it is

unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or

petitioner, the clerk, upon filing the complaint or petition, account or other

commencement of a proceeding, shall promptly prepare and publish a summons

to the defendant to appear and defend the suit. The summons shall be

substantially in the form set forth in Form 1-C.

(B) The publication of said summons shall be made once in each week during

three successive weeks in a public newspaper of the county in which the

complaint or petition, account, cause or other proceeding is pending if there be

such a newspaper, and where there is no newspaper in the county the notice shall

be posted at the courthouse door of the county and published as above provided

in a public newspaper in an adjoining county or at the seat of government of the

state. Upon completion of publication, proof of the prescribed publication shall

be filed in the papers in the cause. The defendant shall have thirty (30) days from

the date of first publication in which to appear and defend. Where the post office

address of a defendant is given, the street address, if any, shall also be stated

unless the complaint, petition, or affidavit above mentioned, avers that after

diligent search and inquiry said street address cannot be ascertained.

(C) It shall be the duty of the clerk to hand the summons to the plaintiff or

petitioner to be published, or, at his request, and at his expense, to hand it to the

publisher of the proper newspaper for publication

ddress, if any, shall also be stated

unless the complaint, petition, or affidavit above mentioned, avers that after

diligent search and inquiry said street address cannot be ascertained.

(C) It shall be the duty of the clerk to hand the summons to the plaintiff or

petitioner to be published, or, at his request, and at his expense, to hand it to the

publisher of the proper newspaper for publication. Where the post office address

of the absent defendant is stated, it shall be the duty of the clerk to send by mail

(first class mail, postage prepaid) to the address of the defendant, at his post

office, a copy of the summons and complaint and to note the fact of issuing the

same and mailing the copy, on the general docket, and this shall be the evidence

of the summons having been mailed to the defendant.

(D) When unknown heirs are made parties defendant in any proceeding in the

chancery court, upon affidavit that the names of such heirs are unknown, the

plaintiff may have publication of summons for them and such proceedings shall

be thereupon in all respects as are authorized in the case of a nonresident

defendant. When the parties in interest are unknown, and affidavit of that fact be

filed, they may be made parties by publication to them as unknown parties in

interest.

(E) Where summons by publication is upon any unmarried infant, mentally

incompetent person, or other person who by reason of advanced age, physical

incapacity or mental weakness is incapable of managing his own estate, summons

shall also be had upon such other person as shall be required to receive a copy of

the summons under paragraph (2) of subdivision (d) of this rule.

nown parties in

interest.

(E) Where summons by publication is upon any unmarried infant, mentally

incompetent person, or other person who by reason of advanced age, physical

incapacity or mental weakness is incapable of managing his own estate, summons

shall also be had upon such other person as shall be required to receive a copy of

the summons under paragraph (2) of subdivision (d) of this rule.

(5) Service by Certified Mail on Person Outside State. In addition to service by any

other method provided by this rule, a summons may be served on a person outside this state

by sending a copy of the summons and of the complaint to the person to be served by

certified mail, return receipt requested. Where the defendant is a natural person, the

envelope containing the summons and complaint shall be marked “restricted delivery.”

Service by this method shall be deemed complete as of the date of delivery as evidenced by

the return receipt or by the returned envelope marked “Refused.”

(d) Summons and Complaint: Person to Be Served. The summons and complaint

shall be served together. Service by sheriff or process server shall be made as follows:

(1) Upon an individual other than an unmarried infant or a mentally incompetent

person,

(A) by delivering a copy of the summons and of the complaint to him personally

or to an agent authorized by appointment or by law to receive service of process;

or

(B) if service under subparagraph (1)(A) of this subdivision cannot be made with

reasonable diligence, by leaving a copy of the summons and complaint at the

defendant’s usual place of abode with the defendant’s spouse or some other

person of the defendant’s family above the age of sixteen years who is willing to

receive service, and by thereafter mailing a copy of the summons and complaint

(by first class mail, postage prepaid) to the person to be served at the place where

a copy of the summons and of the complaint were left. Service of a summons in

this manner is deemed complete on the 10th day after such mailing.

ome other

person of the defendant’s family above the age of sixteen years who is willing to

receive service, and by thereafter mailing a copy of the summons and complaint

(by first class mail, postage prepaid) to the person to be served at the place where

a copy of the summons and of the complaint were left. Service of a summons in

this manner is deemed complete on the 10th day after such mailing.

(2) (A) upon an unmarried infant by delivering a copy of the summons and

complaint to any one of the following: the infant’s mother, father, legal guardian

(of either the person or the estate), or the person having care of such infant or

with whom he lives, and if the infant be 12 years of age or older, by delivering

a copy of the summons and complaint to both the infant and the appropriate

person as designated above.

(B) upon a mentally incompetent person who is not judicially confined to an

institution for the mentally ill or mentally deficient or upon any other person who

by reason of advanced age, physical incapacity or mental weakness is incapable

of managing his own estate by delivering a copy of the summons and complaint

to such person and by delivering copies to his guardian (of either the person or

the estate) or conservator (of either the person or the estate) but if such person has

no guardian or conservator, then by delivering copies to him and copies to a

person with whom he lives or to a person who cares for him.

(C) upon a mentally incompetent person who is judicially confined in an

institution for the mentally ill or mentally retarded by delivering a copy of the

summons and complaint to the incompetent person and by delivering copies to

said incompetent’s guardian (of either the person or the estate) if any he has. If

the superintendent of said institution or similar official or person shall certify by

certificate endorsed on or attached to the summons that said incompetent is

mentally incapable of responding to process, service of summons and complaint

on such incompetent shall not be required

person and by delivering copies to

said incompetent’s guardian (of either the person or the estate) if any he has. If

the superintendent of said institution or similar official or person shall certify by

certificate endorsed on or attached to the summons that said incompetent is

mentally incapable of responding to process, service of summons and complaint

on such incompetent shall not be required. Where said confined incompetent has

neither guardian nor conservator, the court shall appoint a guardian ad litem for

said incompetent to whom copies shall be delivered.

(D) where service of a summons is required under (A), (B) and (C) of this

subparagraph to be made upon a person other than the infant, incompetent, or

incapable defendant and such person is a plaintiff in the action or has an interest

therein adverse to that of said defendant, then such person shall be deemed not

to exist for the purpose of service and the requirement of service in (A), (B) and

(C) of this subparagraph shall not be met by service upon such person.

(E) if none of the persons required to be served in (A) and (B) above exist other

than the infant, incompetent or incapable defendant, then the court shall appoint

a guardian ad litem for an infant defendant under the age of 12 years and may

appoint a guardian ad litem for such other defendant to whom a copy of the

summons and complaint shall be delivered. Delivery of a copy of the summons

and complaint to such guardian ad litem shall not dispense with delivery of copies

to the infant, incompetent or incapable defendant where specifically required in

(A), and (B) of this subparagraph.

(3) Upon an individual confined to a penal institution of this state or of a subdivision

of this state by delivering a copy of the summons and complaint to the individual, except that

when the individual to be served is an unmarried infant or mentally incompetent person the

provisions of subparagraph (d)(2) of this rule shall be followed.

specifically required in

(A), and (B) of this subparagraph.

(3) Upon an individual confined to a penal institution of this state or of a subdivision

of this state by delivering a copy of the summons and complaint to the individual, except that

when the individual to be served is an unmarried infant or mentally incompetent person the

provisions of subparagraph (d)(2) of this rule shall be followed.

(4) Upon a domestic or foreign corporation or upon a partnership or other

unincorporated association which is subject to suit under a common name, by delivering a

copy of the summons and of the complaint to an officer, a managing or general agent, or to

any other agent authorized by appointment or by law to receive service of process.

(5) Upon the State of Mississippi or any one of its departments, officers or

institutions, by delivering a copy of the summons and complaint to the Attorney General of

the State of Mississippi.

(6) Upon a county by delivering a copy of the summons and complaint to the

president or clerk of the board of supervisors.

(7) Upon a municipal corporation by delivering a copy of the summons and complaint

to the mayor or municipal clerk of said municipal corporation.

(8) Upon any governmental entity not mentioned above, by delivering a copy of the

summons and complaint to the person, officer, group or body responsible for the

administration of that entity or by serving the appropriate legal officer, if any, representing

the entity. Service upon any person who is a member of the “group” or “body” responsible

for the administration of the entity shall be sufficient.

Upon any governmental entity not mentioned above, by delivering a copy of the

summons and complaint to the person, officer, group or body responsible for the

administration of that entity or by serving the appropriate legal officer, if any, representing

the entity. Service upon any person who is a member of the “group” or “body” responsible

for the administration of the entity shall be sufficient.

(e) Waiver. Any party defendant who is not an unmarried minor or mentally

incompetent may, without filing any pleading therein, waive the service of process or enter

his or her appearance, either or both, in any action, with the same effect as if he or she had

been duly served with process, in the manner required by law on the day of the date thereof.

Such waiver of service or entry of appearance shall be in writing dated and signed by the

defendant and duly sworn to or acknowledged by him or her, or his or her signature thereto

be proven by two (2) subscribing witnesses before some officer authorized to administer

oaths. Any guardian or conservator may likewise waive process on himself and/or his ward,

and any executor, administrator, or trustee may likewise waive process on himself in his

fiduciary capacity. However, such written waiver of service or entry of appearance must be

executed after the day on which the action was commenced and be filed among the papers

in the cause and noted on the general docket.

(f) Return. The person serving the process shall make proof of service thereof to the

court promptly. If service is made by a person other than a sheriff, such person shall make

affidavit thereof. If service is made under paragraph (c)(3) of this rule, return shall be made

by the sender’s filing with the court the acknowledgment received pursuant to such

subdivision

nd noted on the general docket.

(f) Return. The person serving the process shall make proof of service thereof to the

court promptly. If service is made by a person other than a sheriff, such person shall make

affidavit thereof. If service is made under paragraph (c)(3) of this rule, return shall be made

by the sender’s filing with the court the acknowledgment received pursuant to such

subdivision. If service is made under paragraph (c)(5) of this rule, the return shall be made

by the sender’s filing with the court the return receipt or the returned envelope marked

“Refused.” Failure to make proof of service does not affect the validity of the service.

(g) Amendment. At any time in its discretion and upon such terms as it deems just,

the court may allow any process or proof of service thereof to be amended, unless it clearly

appears that material prejudice would result to the substantial rights of the party against

whom the process is issued.

(h) Summons: Time Limit for Service. If a service of the summons and complaint

is not made upon a defendant within 120 days after the filing of the complaint and the party

on whose behalf such service was required cannot show good cause why such service was

not made within that period, the action shall be dismissed as to that defendant without

prejudice upon the court’s own initiative with notice to such party or upon motion.

(i) Procedure in Certain Actions and Matters. The special rules of procedure set

forth in this paragraph shall apply to the actions and matters enumerated in subparagraphs

(1) and (2) hereof and shall control to the extent they may be in conflict with any other

provision of these rules.

s to that defendant without

prejudice upon the court’s own initiative with notice to such party or upon motion.

(i) Procedure in Certain Actions and Matters. The special rules of procedure set

forth in this paragraph shall apply to the actions and matters enumerated in subparagraphs

(1) and (2) hereof and shall control to the extent they may be in conflict with any other

provision of these rules.

(1) The following actions and matters shall be triable 30 days after completion of

service of process in any manner other than by publication or 30 days after the first

publication where process is by publication, to-wit: adoption; correction of birth certificate;

alteration of name; termination of parental rights; paternity; legitimation; uniform reciprocal

enforcement of support; determination of heirship; determination of wrongful death

beneficiaries; partition; probate of will in solemn form; caveat against probate of will; will

contest; will construction; child custody actions; child support actions; and establishment of

grandparents’ visitation.

(2) The following actions and matters shall be triable 7 days after completion of

service of process in any manner other than by publication or 30 days after the first

publication where process is by publication, to wit: removal of disabilities of minority;

temporary relief in divorce, separate maintenance, paternity actions, child custody, or child

support matters; modification or enforcement of custody, support, and alimony judgments;

contempt; and estate matters and wards’ business in which notice is required but the time for

notice is not prescribed by statute or by subparagraph (1) above.

(3) Unanswered complaints and petitions filed in the actions and matters enumerated

in subparagraphs (1) and (2) above shall not be taken as confessed or subject to default

judgment, and adequate proof is required to support a judgment.

(4) No answer shall be required in any action or matter enumerated in subparagraphs

the time for

notice is not prescribed by statute or by subparagraph (1) above.

(3) Unanswered complaints and petitions filed in the actions and matters enumerated

in subparagraphs (1) and (2) above shall not be taken as confessed or subject to default

judgment, and adequate proof is required to support a judgment.

(4) No answer shall be required in any action or matter enumerated in subparagraphs

(1) and (2) above but any defendant or respondent may file and serve an answer or other

pleading or the court may order a party to answer if it deems it necessary to develop the

issues properly. A party who fails to file an answer after being ordered so to do shall not be

permitted to present evidence on his behalf. Any defendant or respondent may file and serve

counterclaims and cross-claims pursuant to M.R.C.P. 13, and service of any such

counterclaims or cross-claims shall be made pursuant to M.R.C.P. 5 without necessity of

further process.

(5) Upon the filing of any action or matter listed in subparagraphs (1) and (2) above,

a summons returnable to a date, time and place certain and in substantial conformity with

Form 1D or Form 1DD shall be issued commanding the defendant or respondent to appear

and defend at the specified date, time and place, either in term time or vacation, at which

such action shall be heard. Said date, time and place shall be set by court order, or the court

may authorize its clerk or court administrator to set such actions for original hearings and to

designate dates to continue the same for hearing at a later time. If a defendant or respondent

who has been properly served with process pursuant to this Rule does appear at the initial

setting of such action, notice of later hearings or proceedings shall be given in the manner

provided for in Rule 5. If a defendant or respondent who has been properly served with

process pursuant to this Rule does not appear at the initial setting of such action, no further

notice or process is required

ent

who has been properly served with process pursuant to this Rule does appear at the initial

setting of such action, notice of later hearings or proceedings shall be given in the manner

provided for in Rule 5. If a defendant or respondent who has been properly served with

process pursuant to this Rule does not appear at the initial setting of such action, no further

notice or process is required. If such action or matter is not heard on the day set for hearing,

it may by order be continued to a later day for hearing without additional summons on the

defendant or respondent.

(6) Once the court has acquired personal jurisdiction, Rule 5(b) notice shall be

sufficient as to: (A) any temporary hearing in a pending divorce, separate maintenance,

paternity, custody, or support action, provided the defendant was summoned to answer the

original complaint; and (B) any subsequent counterclaim or cross-claim filed pursuant to

these rules; and (C) any motion for further proceedings, including, but not limited to,

contempt of temporary orders and other proceedings arising in connection with or out of the

original action.

Advisory Committee Historical Note

Effective January 3, 2002, Rule 4(e) was amended to delete a prohibition against

waiver of service of process by one convicted of a felony. 802-804 So.2d XVII (West Miss.

Cases 2002).

Effective July 1, 1998, Rule 4(f) was amended to state that the person serving process

shall promptly make proof of service thereof to the court.

with or out of the

original action.

Advisory Committee Historical Note

Effective January 3, 2002, Rule 4(e) was amended to delete a prohibition against

waiver of service of process by one convicted of a felony. 802-804 So.2d XVII (West Miss.

Cases 2002).

Effective July 1, 1998, Rule 4(f) was amended to state that the person serving process

shall promptly make proof of service thereof to the court.

Effective February 1, 1990, Rule 4(c)(4)(B) was amended by striking the word

“calendar” following the word and figure “thirty (30)”; Rule 4(c)(4) was amended by adding

subsection (E); Rule 4(c)(5) was amended by changing the title to reflect service by certified

mail; Rule 4(d)(2)(A) was amended by substituting the word “person” for “individual” in

reference to the one having care of the infant. 553-556 So. 2d XXXIII (West Miss. Cas.

1990).

Effective March 1, 1985, a new Rule 4 was adopted. 459-462 So. 2d XVIII (West

Miss. Cas. 1985).

Effective May 1, 1982, Rule 4 was amended. 410-416 So. 2d XXI (West Miss. Cas.

1982).

Advisory Committee Notes

After a complaint is filed, the clerk is required to issue a separate summons for each

defendant except in the case of summons by publication. The summons must contain the

information required by Rule 4(b), which requires the summons to notify the defendant that,

among other things, a failure to appear will result in a judgment by default. Although the

“judgment by default will be rendered” language may be an overstatement, the strong

language is intended to encourage defendants to appear to protect their interests. Forms 1A,

1AA, 1B, and 1C are provided as suggested forms for the various summonses.

The summons and a copy of the complaint must then be served on each defendant.

This rule provides for personal service, residence service, first-class mail and

acknowledgement service, certified mail service, and publication service.

Personal service is authorized by Rule 4(d)(1)(A) and requires delivery of a copy of

the complaint and the summons to the person to be served

r the various summonses.

The summons and a copy of the complaint must then be served on each defendant.

This rule provides for personal service, residence service, first-class mail and

acknowledgement service, certified mail service, and publication service.

Personal service is authorized by Rule 4(d)(1)(A) and requires delivery of a copy of

the complaint and the summons to the person to be served.

Residence service is authorized by Rule 4(d)(1)(B) and requires that a copy of the

complaint and the summons be left at the defendant’s usual place of abode with the

defendant’s spouse or other family member who is above the age of sixteen and who is

willing to accept service. Residence service further requires that a copy of the summons and

complaint be thereafter mailed to the defendant at the location where the complaint and

summons were left.

Personal service and residence service may be made by a process server or the sheriff

in the county where the defendant resides or can be found. A party using a process server

may pay such person any amount that is agreed upon but only that amount statutorily allowed

as payment to the sheriff under Mississippi Code Annotated section 25-7-19 (Supp. 2013)

may be taxed as recoverable costs in the action. Summonses served by process servers should

be in substantial conformity with Form 1A and summonses served by sheriffs should be in

substantial conformity with Form 1AA.

First-class mail and acknowledgement service is authorized by Rule 4(c)(3). The

plaintiff must mail the defendant a copy of the summons and complaint, two copies of a

notice and acknowledgement conforming substantially to Form 1B, and a postage paid

envelope addressed to the sender. Upon receipt, the defendant may execute the

acknowledgement of service under oath or by affirmation. If the defendant fails to execute

and return the acknowledgement of service in a timely fashion, the defendant may be ordered

to pay the costs incurred by the plaintiff in serving the defendant by another method

nforming substantially to Form 1B, and a postage paid

envelope addressed to the sender. Upon receipt, the defendant may execute the

acknowledgement of service under oath or by affirmation. If the defendant fails to execute

and return the acknowledgement of service in a timely fashion, the defendant may be ordered

to pay the costs incurred by the plaintiff in serving the defendant by another method. This

provision is intended to encourage a defendant to acknowledge service by first-class mail in

order to avoid having to pay the costs that would otherwise be incurred by the plaintiff in

serving that defendant. Execution and return of the acknowledgement of service does not

operate as a waiver of objections to jurisdiction or venue. All jurisdictional and venue

objections are preserved whether Form 1B is completed and returned from inside or outside

the state. Although M.R.C.P. 4(c)(3) is modeled after Fed. R. Civ. P. 4(d), defendants who

execute and return the acknowledgement of service under M.R.C.P. 4(c)(3) are

acknowledging actual service, whereas defendants who execute and return the waiver under

Fed. R. Civ. P. 4(d) are waiving service.

Publication service is authorized by Rule 4(c)(4) and is limited to defendants in

chancery court proceedings and other proceedings where service by publication is authorized

by statute. Service by publication is further limited to defendants who are nonresidents or

who cannot be found within the state after diligent inquiry. The requirements for service by

publication are detailed in the rule and must be strictly followed; otherwise service is

ineffective. See Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988).

Certified mail service is authorized by Rule 4(c)(5) and is limited to persons outside

the state. The plaintiff must send a copy of the summons and complaint to the person to be

served by certified mail, return receipt requested

or service by

publication are detailed in the rule and must be strictly followed; otherwise service is

ineffective. See Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988).

Certified mail service is authorized by Rule 4(c)(5) and is limited to persons outside

the state. The plaintiff must send a copy of the summons and complaint to the person to be

served by certified mail, return receipt requested. The Proof of Service must include as an

attachment the signed return receipt or the return envelope marked “refused.” Service upon

a foreign corporation, partnership or unincorporated association is effective even if the

certified mail is delivered to and signed for or refused by a person other than the addressee,

if the person accepting delivery and signing or refusing delivery is an officer or employee of

the defendant who is authorized to receive or who regularly receives certified mail. See

Flagstar Bank, FSB v. Danos, 46 So. 3d 298 (Miss. 2010) (finding service by certified mail

upon a foreign corporation effective where the plaintiff addressed the certified mail to the

foreign corporation’s registered agent for service of process and the certified mail was

delivered to the proper address and signed for by the mail clerk rather than the registered

agent). Service of process is not effective under Rule 4(c)(5) if the mailing is returned

marked “unclaimed/refused”, “unclaimed” or “undeliverable as addressed.” See Bloodgood

v. Leatherwood, 25 So. 3d 1047 (Miss. 2010).

Rule 4(d) identifies the person to be served with process when the defendant is: (i) a

mentally competent married infant or a mentally competent adult; (ii) an unmarried infant;

agent). Service of process is not effective under Rule 4(c)(5) if the mailing is returned

marked “unclaimed/refused”, “unclaimed” or “undeliverable as addressed.” See Bloodgood

v. Leatherwood, 25 So. 3d 1047 (Miss. 2010).

Rule 4(d) identifies the person to be served with process when the defendant is: (i) a

mentally competent married infant or a mentally competent adult; (ii) an unmarried infant;

(iii) a mentally incompetent person who is not judicially confined to an institution for the

mentally ill or mentally deficient; (iv) a mentally incompetent person who is judicially

confined to an institution for the mentally ill or mentally deficient; (v) an individual confined

to a penal institution of this state or a subdivision of this state; (vi) a domestic or foreign

corporation, partnership or unincorporated association subject to a suit under a common

name; (vii) the State of Mississippi or one of its departments, officers or institutions; (viii)

a county; (ix) a municipal corporation; or (x) any other governmental entity.

Rule 4(e) provides for waiver of service of the summons and complaint. A waiver

must be executed after the day on which the action was commenced and thus may be

executed without a summons having been issued.

Rule 4(f) provides that the person serving the process shall promptly file a return of

service with the court. For first-class mail and acknowledgement service, proof of service is

to be made by filing a copy of the executed acknowledgement of service. For certified mail

service, proof of service is to be made by filing the return receipt or the envelope marked

“Refused.” The purpose of the requirement for prompt filing of the proof of service is to

enable the defendant to verify the date of service by examining the proof of service in the

court records

, proof of service is

to be made by filing a copy of the executed acknowledgement of service. For certified mail

service, proof of service is to be made by filing the return receipt or the envelope marked

“Refused.” The purpose of the requirement for prompt filing of the proof of service is to

enable the defendant to verify the date of service by examining the proof of service in the

court records.

Rule 4(h) provides that if service is not made upon a defendant within 120 days after

the filing of the complaint, the claims against that defendant will be dismissed without

prejudice absent good cause for the failure to timely serve the defendant. If service cannot

be made within the 120-day period, it is clearly advisable to move the court within the

original time period for an extension of time in which to serve the defendant. If the motion

for extension of time is filed within the 120-day time period, the time period may be extended

for “cause shown” pursuant to Rule 6(b)(1). If a motion for extension of time is filed outside

of the original 120-day time period, the movant must show “good cause” for the failure to

timely serve the defendant pursuant to Rule 4(h). See Johnson v. Thomas, 982 So. 2d 405

(Miss. 2008).