796 F.3d 897 (8th Cir. 2015), 14-2579, Barner v. Thompson/Center Arms Co. Inc.

Docket Nº:14-2579
Citation:796 F.3d 897
Opinion Judge:WOLLMAN, Circuit Judge.
Party Name:Mark Barner; Charlotte Barner, Plaintiffs - Appellants v. Thompson/Center Arms Company Inc., also known as Thompson/Center Arms Company LLC; Thompson/Center Arms Company, LLC; John Does, 1-10; John Doe Corporations, 1-10, Defendants - Appellees
Attorney:For Mark Barner, Charlotte Barner, Plaintiffs - Appellants: Addison Kennon Goff IV, Goff & Goff, Ruston, LA; Connie Lynn Grace, Gary Holt & Associates, P.A., Little Rock, AR; James Gerard Schulze, Baker & Schulze, Little Rock, AR. For Thompson/Center Arms Company Inc., also known as: Thompson/Cen...
Judge Panel:Before WOLLMAN and GRUENDER, Circuit Judges, and GRITZNER,[1] District Judge.
Case Date:August 04, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
SUMMARY

Four days before the statute of limitations expired, the Barners filed a complaint in Arkansas state court against T/C Inc. and T/C LLC, based on injuries allegedly sustained on October 15, 2010. T/C Inc. had merged into T/C LLC before the Barners filed suit. Under Arkansas law, they had 120 days to serve the defendants with the complaint and summons. Their attorney sent to CT Corporation, the... (see full summary)

 
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Page 897

796 F.3d 897 (8th Cir. 2015)

Mark Barner; Charlotte Barner, Plaintiffs - Appellants

v.

Thompson/Center Arms Company Inc., also known as Thompson/Center Arms Company LLC; Thompson/Center Arms Company, LLC; John Does, 1-10; John Doe Corporations, 1-10, Defendants - Appellees

No. 14-2579

United States Court of Appeals, Eighth Circuit

August 4, 2015

Submitted April 16, 2015

Appeal from United States District Court for the Eastern District of Arkansas - Little Rock.

For Mark Barner, Charlotte Barner, Plaintiffs - Appellants: Addison Kennon Goff IV, Goff & Goff, Ruston, LA; Connie Lynn Grace, Gary Holt & Associates, P.A., Little Rock, AR; James Gerard Schulze, Baker & Schulze, Little Rock, AR.

For Thompson/Center Arms Company Inc., also known as: Thompson/Center Arms Company LLC, Thompson/Center Arms Company, LLC, Defendants - Appellees: Edie Renee Ervin, William M. Griffin III, Friday & Eldredge, Little Rock, AR; Jeffrey Malsch, Pisciotti & Malsch, White Plains, NY; Anthony Michael Pisciotti, Pisciotti & Malsch, Florham Park, NJ.

Before WOLLMAN and GRUENDER, Circuit Judges, and GRITZNER,1 District Judge.

OPINION

WOLLMAN, Circuit Judge.

Mark and Charlotte Barner appeal the district court's dismissal with prejudice of their claims against Thompson/Center Arms Co., LLC (T/C LLC) for insufficient service of process and against Thompson/Center Arms Co., Inc. (T/C Inc.) for failure to state a claim. The Barners argue that the Arkansas savings statute, Ark. Code Ann. § 16-56-126, applies to their claims against T/C LLC; that they completed timely service in federal court against T/C LLC under 28 U.S.C. § 1448; and that T/C Inc., a corporation that merged with T/C LLC prior to the Barners filing this lawsuit, is still capable of being sued under New Hampshire law. We affirm the dismissal against T/C Inc., reverse the dismissal against T/C LLC, and remand for further proceedings.

I.

On October 11, 2013, four days before the statute of limitations on their claims expired, the Barners filed a complaint in Arkansas state court against T/C Inc. and T/C LLC, seeking relief for injuries allegedly sustained on October 15, 2010. T/C Inc., a New Hampshire corporation, had merged into T/C LLC, a Delaware corporation, on April 27, 2012, before the Barners filed suit.

Under Arkansas Rule of Civil Procedure 4(i), the Barners had 120 days from the date they filed their complaint to serve T/C LLC and T/C Inc. with the complaint and summons. The Barners' attorney sent to CT Corporation, the registered agent for T/C Inc., the complaint and summons for both parties by certified mail: one addressed to T/C Inc. and one addressed to T/C LLC. CT Corporation returned two receipts to the Barners' attorney, showing that service had been completed for both T/C Inc. and T/C LLC on January 24, 2014. Unbeknownst to the Barners, however, CT Corporation was not the registered agent for T/C LLC.

On February 14, 2014, after the 120-day period for completing service under the Arkansas procedural rules had expired, T/C LLC and T/C Inc. filed a notice of removal. Once in federal court, T/C LLC and T/C Inc. moved to dismiss the Barners' complaint, arguing that the Barners had failed to complete timely service on T/C LLC because they had not served T/C LLC's registered agent and that the Barners could not state a claim against T/C Inc. because it was no longer a legal entity capable of being sued. On April 8, 2014, the Barners served the complaint and summons for T/C LLC on its registered agent.

The district court found that the Barners' claims against T/C LLC would have been dismissed with prejudice had the case remained in state court, because the statute of limitations had run and the Arkansas savings statute did not apply. Thus, the district court held that under Marshall v. Warwick, 155 F.3d 1027 (8th Cir. 1998), the Barners could not complete service on T/C LLC post-removal under 28 U.S.C. § 1448. The district court also held that T/C Inc. was no longer a legal entity capable of being sued. Accordingly, the district court granted T/C LLC and T/C Inc.'s motion to dismiss the Barners' complaint with prejudice.

II.

In a case that has been...

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