In re Recommendations the Comm. On Civil Practice

• Citation: 2016 Ark. 29
• Parties: IN RE RECOMMENDATIONS OF THE COMMITTEE ON CIVIL PRACTICE
• Decision Date: 28 January 2016
• Court: Supreme Court of Arkansas

2016 Ark. 29

IN RE RECOMMENDATIONS OF THE COMMITTEE ON CIVIL PRACTICE

SUPREME COURT OF ARKANSAS

January 28, 2016

PER CURIAM

The Arkansas Supreme Court Committee on Civil Practice submitted its annual proposals and recommendations for changes in rules of procedure affecting civil practice. The proposals are in the following areas:

A. Amendments related to summons revision

Ark. R. Civ. P. 4 and Form of Summons

Ark. R. Civ. P. 12

Administrative Order No. 18

B. Addresses and contact information on pleadings

Ark. R. Civ. P. 10 and 11

C. Space for file marks

Administrative Order No. 2

We are publishing the suggested amendments for comment. The Reporter's 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 committee members for their faithful and helpful work with respect to the rules. Comments on the suggested rule changes should be made in writing

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before April 1, 2016, and they should be addressed to: Stacey Pectol, Clerk, Supreme Court of Arkansas, Attn.: Civil Procedure Rules, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201.

A. Amendments related to Summons revision

1. Ark. R. Civ. P. 4. Summons and Service of Process.

(a) Issuance of Summons. Immediately on Upon the filing of the complaint, the clerk shall forthwith issue a summons to the plaintiff or the plaintiff's attorney, who shall deliver it and cause it to be delivered for service to a person authorized by subdivision (c) of this rule to serve process.

(b) Form of Summons. The summons shall be styled in the name of the court and issued under its seal, shall be dated and signed by the clerk or a deputy clerk,; be under the seal of the court; contain and directed from the State of Arkansas to the defendant to be served. It shall contain:

(1) in its caption, the names of the parties; be directed to the defendant; plaintiff and defendant or, if there are multiple parties, the names of the plaintiff and defendant listed first in the complaint;

(2) the address of the defendant to be served, if known;

(3) state the name and address of the plaintiff's attorney, if any, otherwise the address of the plaintiff;

(4) and the time within which these rules require the defendant to appear, file a responsive pleading or motion, and defend; and

(5) shall notify him that in case of his notice that the defendant's failure to do so, appear, respond, and defend within the time allowed may result in entry of judgment by default against the defendant may be entered against him for the relief demanded in the complaint.

(c) Process: Defined; By Whom Served. (1) For purposes of this rule, the term "process" means the summons and a copy of the complaint, which shall be served together. The plaintiff or the plaintiff's attorney shall furnish the person making service with as many copies as are necessary.

(2) Service of summons shall be made by: The following persons are authorized to serve process:

(A) the a sheriff of the county where the service is to be made, or his or her deputy, unless the sheriff is a party to the action;

(B) any person appointed pursuant to Administrative Order No. 20 for

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the purpose of serving summons by either the court in which the action is filed or a court in the county in which service is to be made;

(C) any person authorized to serve process under the law of the place outside this state where service is made; or and

(D) in the event of service by mail or commercial delivery company pursuant to subdivision (d)(8) (g)(1) and (2) of this rule, by the plaintiff or an attorney of record for the plaintiff.

(d) Proof of Service. The person effecting service shall make proof of service 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.

(1) Proof of service may be made by executing a certificate of service contained in the same document as the summons. If service is made by a person other than a sheriff or his or her deputy, the certificate shall be sworn. If service has been by mail or commercial delivery company, the person making service shall attach a return receipt, envelope, affidavit, acknowledgment, or other writing required by subdivision (g)(1) and (2) of this rule.

(2) If service is made by warning order, proof of service shall be made as provided in subdivision (g)(3) of this rule.

(3) Proof of service in a foreign country, if effected pursuant to the provisions of a treaty or convention as provided in subdivision (h)(4) of this rule, shall be made in accordance with the applicable treaty or convention.

(e) Amendment. At any time in its discretion and on terms as it deems just, the court may allow any summons or proof of service to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the summons is issued.

(f) (d) Personal Service Inside the State. A copy of the summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service of process shall be made inside the state upon any person designated by statute to receive service or as follows:

(1) Natural Persons. Upon an individual, other than an infant If the defendant is a natural person at least 18 years of age or emancipated by court order, by:

(A) delivering a copy of the summons and complaint process to him the defendant personally, or if he or she refuses to receive it, by offering a copy thereof to him, or by after the process server makes his or her purpose clear, by leaving the papers in close proximity to the defendant;

(B) leaving the process a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age, or by with any member of the defendant's family at least 18 years of age at a place where the defendant resides;

(C) delivering the process to an agent authorized by appointment or by

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law to receive service of summons. on the defendant's behalf; or

(D) leaving the process at the defendant's place of business during normal working hours with a receptionist or the employee who is then apparently in charge, if the defendant maintains an office or other fixed location for the conduct of business.

(2) Minors. When the defendant is under the age of 14 years, service must be upon a parent or guardian having the care and control of the infant, or upon any other person having the care and control of the infant and with whom the infant lives. When the infant is at least 14 years of age, service shall be upon him. If a defendant is less than 18 years of age and has not been emancipated by court order, by delivering the process to the defendant's father, mother, or guardian or, if there be none in the state, to any person at least 18 years of age in whose care or control the minor may be or with whom the minor resides.

(3) Incapacitated Persons. Where the defendant is a person for whom a plenary, limited or temporary guardian has been appointed, the service must be upon the individual and the guardian. If the person for whom the guardian has been appointed is confined in a public or private institution for the treatment of the mentally ill, service shall be upon the superintendent or administrator of such institution and upon the guardian. If a plenary, limited, or temporary guardian has been appointed for an incapacitated person, or if a conservator has been appointed for a person who by reason of advanced age or physical disability is unable to manage his or her property, service shall be on the person and the guardian or conservator.

(4) Incarcerated Persons. Where the defendant is Service on a person incarcerated in any jail, penitentiary, or other correctional facility in this state, service must be shall be on upon the administrator of the institution, who shall promptly deliver a copy of the summons and complaint the process to the defendant incarcerated person. A copy of the summons and complaint process shall also be sent to the defendant incarcerated person by first-class mail and marked as "legal mail" and, unless the court otherwise directs, to the defendant's his or her spouse, if any.

(5) Corporations. Upon a domestic or foreign corporation or upon a partnership, limited liability company, or any unincorporated association subject to suit under a common name, by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons. Service on any corporation, including nonprofit corporations, professional corporations, and cooperatives, shall be on its registered agent for service of process, or the agent's secretary or assistant; any officer of the corporation, or the officer's secretary or assistant; a managing or general agent of the corporation, or the agent's secretary or assistant; any agent authorized by appointment or by law to receive service of process; or as provided by statute.

(6) Limited Liability Companies. Service on a limited liability company shall be on its registered agent for service of process, or the agent's secretary or assistant; a

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manager of a limited liability company in which management is vested in managers rather than members, or the manager's secretary or assistant; a member of a limited liability company in which management is vested in the members or in which management is vested in managers and there are no managers, or that member's secretary or assistant; a managing or general agent of the limited liability company, or the agent's secretary or assistant; any agent authorized by appointment or by law to receive service of process; or as provided by statute.

(7) Partnerships. Service on any type of...