In Re: Arkansas Rules Of Civil Procedure
| Decision Date | 21 January 2010 |
| Citation | 2010 Ark. 35 |
| Parties | In re: ARKANSAS RULES OF CIVIL PROCEDURE, RULES OF THE SUPREME COURT AND COURT OF APPEALS, AND RULES OF APPELLATE PROCEDURE-CIVIL |
| Court | Arkansas Supreme Court |
The Arkansas Supreme Court Committee on Civil Practice has submitted its annual proposals and recommendations for changes in rules of procedure affecting civil practice. We have reviewed the Committee's work, and now publish the suggested amendments for comment from the bench and bar. The Notes explain the changes, and the proposed changes are set out in "line-in, line-out" fashion (new material is underlined; deleted material is lined through).
We express our gratitude to the Chair of the Committee, Constance G. Clark, its Reporter, Judge D.P. Marshall Jr., and all the Committee members for their faithful and helpful work with respect to the Rules.
Comments on the suggested rules changes should be made in writing before March 31, 2010 to: Leslie W. Steen, Clerk, Supreme Court of Arkansas, Attn.: Civil Procedure Rules, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201.
Rule 4. Summons.
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(g) Proof of Service. The person effecting service shall make proof thereof to the clerk within the time during which the person served must respond to the summons. Failure to make proof of service, however, shall not affect the validity of service. If service is made by a sheriff or his deputy, proof may be made by executing a certificate of service or return contained in the same document as the summons. If service is made by a person other than a sheriff or his deputy, the person shall make affidavit thereof, and if service has been by mail or commercial delivery company, shall attach to the affidavit a return receipt, envelope, affidavit or other writing required by Rule 4(d)(8). Proof of service in a foreign country, if effected pursuant to the provisions of a treaty or convention as provided in Rule 4(e)(4), shall be made in accordance with the applicable treaty or convention.
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(k) Substantial Compliance. When ruling on a motion to dismiss under 12(b)(4) or (5), the circuit court shall consider whether the plaintiff substantially complied with the service requirements of Rule 4. If the defendant had actual notice of the complaint and filed a timely answer or timely Rule 12(b) motion in response to it, then the circuit court may deny the motion to dismiss despite a technical defect in the service or the process.
Addition to Reporter's Notes, 2010 Amendment: Rule 4(g) has been amended by restoring a sentence from the original Rule reciting the familiar legal principle that a failure to make proof of service does not affect the validity of the service. The sentence was removed more than twenty-five years ago without explanation. Addition to Reporter's Notes, 1983 Amendment. Since then, the Supreme Court and Court of Appeals have repeatedly reaffirmed and applied this principle. E.g., Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 562, 785 S.W.2d 220, 222 (1990); Renfro v. Air Flo Co., 91 Ark. App. 99, 101, 208 S.W.3d 807, 809 (2005). This amendment makes the Rule reflect settled law.
New subdivision (k) reestablishes a substantial-compliance standard for service and process under Rule 4 in situations where no default has occurred. Recent cases have held that a defendant's actual notice of a lawsuit does not validate defective service or defective process. E.g., Trusclair v. McGowan Working Partners, 2009 Ark. 203, at 3 4, S.W.3d, ; Carruth v. Design Interiors, Inc., 324 Ark. 373, 374 75, 921 S.W.2d 944, 944 45 (1996); Connally v. Connally, 95 Ark. App. 42, 47, 233 S.W.3d 168, 172 (2006). Though it does not make actual notice determinative, this amendment gives the circuit court discretion to deny motions for dismissal under Rule 12(b)(4) and 12(b)(5) when the defendant knew about the complaint and filed a timely answer or timely motion responding to it.
This change accords with older Arkansas authority holding the plaintiffto a substantialcompliance standard, both as to the summons and service, in nondefault cases. Ford Life Ins. Co. v. Parker, 277 Ark. 516, 517-18, 644 S.W.2d 239, 240 (1982). The strict-compliance standard grows out of default situations. E.g., Wilburn v. Keenan Cos., 298 Ark. 461, 463, 768 S.W.2d 531, 532 (1989); Edmonson v. Farris, 263 Ark. 505, 508, 565 S.W.2d 617, 618 (1978); Halliman v. Stiles, 250 Ark. 249, 254, 464 S.W.2d 573, 576-77 (1971). Despite amendment of Arkansas Rule of Civil Procedure 55 to echo Federal Rule 55, it remains notoriously difficult to get an Arkansas default judgment set aside. E.g., McGraw v. Jones, 367 Ark. 138, 140 44, 238 S.W.3d 15, 17 20 (2006). The precedent's insistence on strict-compliance is a helpful shield in the default situation. But the strict standard should not be a sword when a defendant had actual notice of the complaint, filed a timely answer or timely Rule 12(b) motion, and the defect in service or process was minor.
It is an often-stated rule that service requirements, being in derogation ofcommon-law rights, must be strictly construed and complied with exactly. E.g., Trusclair, 2009 Ark. 203, at 3, S.W.3d at; Carruth, 324 Ark. at 374-75, 921 S.W.2d at 945. This rule arose, however, in the context of service on out-of-state defendants where "personal jurisdiction over a defendant may be founded on something less than actual notice." Halliman, 250 Ark. at 254, 464 S.W.2d at 577; see generally Kerr v. Greenstein, 213 Ark. 447, 212 S.W.2d 1 (1948) (). Where a defendant has actual notice of the complaint and does not default, the due-process concerns animating the strict compliance rule are much weaker. And the reason behind the rule should limit its applicability.
The strict-compliance cases in nondefault situations are at odds with the guiding principal ofRule 4 ensuring due process by giving the defendant adequate notice of the suit and an opportunity to respond before a judgment is entered. This amendment maintains the strict-compliance standard in default situations, while reviving the substantial-compliance standard in cases where the defendant has actual notice of a complaint and files a timely answer or Rule 12(b) motion. In the latter instance, due process is satisfied even if marginal defects in the service or the summons exist.
Rule 5. Service and filing of pleadings and other papers.
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(b) Service: How Made.
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(2) Except as provided in paragraph (3) of this subdivision, service upon the attorney or upon the party shall be made by delivering a copy to him or by sending it to him by regular mail or commercial delivery company at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy for purposes of this paragraph means handing it to the attorney or to the party; by leaving it at his office with his clerk or other person in charge thereof; or, if the office is closed or the person has no office, leaving it at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age. Service by mail is presumptively complete upon mailing, and service by commercial delivery company is presumptively complete upon depositing the papers with the company. When service is permitted upon an attorney, such service may be effected by electronic transmission, including e-mail, provided that the attorney being served has facilities within his or her office to receive and reproduce verbatim electronic transmissions. Service is complete upon transmission but is not effective if it does not reach the person to be served. Service by a commercial delivery company shall not be valid unless the company; (A) maintains permanent records ofactual delivery, and (B) has been approved by the circuit court in which the action is filed or in the county where service is to be made.
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Addition to Reporter's Notes, 2009 Amendment: Subdivision (b)(2) has been amended to clarify that service upon an attorney by "electronic transmission" includes service by email. The amendment also provides that although service by electronic transmission is complete upon transmission, it is not effective if it does not reach the person to be served. As with other means of service, a claim that service by electronic transmission was not actually received may be raised by the person upon whom service was attempted. A corresponding amendment to Rule 6(d) adds the three-day additional response time allowed for service by mail or commercial delivery company to the time permitted for response to service by electronic transmission.
Rule 6. Time.
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(d) Additional Time After Service by Mail or Commercial Delivery Company. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, commercial delivery company, or electronic transmission, including e-mail pursuant to Rule 5(b)(2), three (3) days shall be added to the prescribed period. Provided, however, that this subdivision shall not extend the time in which the defendant must file an answer or preanswer motion when service of the summons and complaint is by mail or commercial delivery company in accordance with Rule 4.
Addition to Reporter's Notes, 2010 Amendment: Subdivision (d) has been amended to add the three-day additional response time allowed for service by mail or commercial delivery company to the time permitted for response to service by electronic transmission, including by e-mail, under Rule 5(b)(2).
Rule 34. Production of documents and things and entry upon land for inspection and other purposes.
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(c) Persons Not Parties. This rule does not preclude an independent action against a person not a...
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