Ark. R. Civ. P. 4
Ark. R. Civ. P. 4
COMMENT
Addition to Reporter's Notes, 2014 Amendment: For clarity, Rule 4(i) has been restructured and divided into paragraphs. Also, the sentence dealing with refusal to accept service that now appears in paragraph (1) has been limited to service by mail under subdivision (d)(8)(A) or by commercial delivery company under subdivision (d)(8)(C). The result of this change is to exclude service by first class mail pursuant to subdivision (d)(8)(B), under which refusal plays no role.
More significantly, the subdivision has been revised to make clear that a motion to extend the time for service is proper if filed within 120 days of the filing of the complaint or within the time period provided by a previous extension of time. Although the subdivision did not address subsequent extensions, they have long been considered proper in light of Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994). See also Henyan v. Peek, 359 Ark. 486, 199 S.W.3d 51 (2004); Wilkins v. Food Plus, Inc., 99 Ark. App. 64, 257 S.W.3d 107 (2007). The Court of Appeals, however, held in Powell v. Fernandez, 2013 Ark. App. 595, that a subsequent extension is allowed only if sought within 120 days of the filing of the complaint. The amendment overrules Powell on this point.
Reporter's Notes (2019 Amendment). Rule 4 has undergone several modifications since it became effective in 1979. The 2019 amendment substantially revises and reorganizes the rule.
Subdivision (a). The amendment reflects more clearly the actual practice envisioned by the Reporter's Notes to the original version of the rule. As there stated: "Whereas FRCP 4 places the onus of delivering process to the server upon the Clerk, this Rule permits the Clerk to 'cause it to be delivered,' thus contemplating placing the summons with the plaintiff's attorney who then will see to it that it is served by an appropriate official."
Subdivision (b). This subdivision has been revised to accommodate electronic filing and to reflect current law. The introductory section to the official summons form has also been modified.
New language in subdivision (b) provides that, in multiple-party cases, only the first-listed party on each side of the case must be listed in the caption. This revision is necessary because of electronic filing software and is consistent with Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004), in which the Supreme Court refused to read the original version of the rule to require "a listing of every plaintiff and every defendant on every summons, no matter how many plaintiffs and defendants are parties to the case." Id. at 123, 186 S.W.3d at 729.
Similarly, the phrase "directed from the State of Arkansas to the defendant to be served" has been added to reflect the holding of Gatson v. Billings , 2011 Ark. 125. There the Supreme Court held that Rule 4(b) must be read in conjunction with Ark. Const. art. 7, § 49, which provides that "[a]ll writs and other judicial process, shall run in the name of the State of Arkansas." The new provision also makes plain that the defendant "to be served" is identified here; in a case with multiple defendants, this defendant's name will not necessarily appear in the caption.
Another change requires the summons to contain "the address of the defendant to be served, if known." This provision makes the rule's text consistent with the official summons form, which contains a space for the address of the defendant being served. The amended rule recognizes, however, that the defendant's address may not be known at the time the complaint is filed and the summons issued.
The introductory section of the official summons form has been divided into three paragraphs. The second paragraph lists examples of additional notices that may be included: those required by statute in unlawful-detainer actions and in replevin actions, plus the notice of consent jurisdiction of state district courts required by Administrative Order No. 18.
Subdivision (c). This subdivision has been amended by adding a new paragraph (1) and designating the previous text as paragraph (2). The latter is unchanged except for a revised crossreference. The new first paragraph defines "process" for purposes of the rule to include the summons and complaint and requires, as did a sentence in subdivision (d) in the previous version of the rule, that they be served together.
Subdivision (d). This subdivision addresses proof of service; for the most part it is the same as former subdivision (g) but has been divided into three paragraphs. The introductory material consists of the first and second sentences of former subdivision (g) with one stylistic change. Paragraph (1) is based on the third and fourth sentences of the previous version, rewritten to conform to the official summons form. Paragraph (2), which cross-references the proof-of-service provision for warning orders, is new. Paragraph (3) is identical to the last sentence of former subdivision (g) with the exception of the cross-reference.
Subdivision (e). This subdivision, which governs amendment of the summons and proof of service, tracks former subdivision (h).
Subdivision (f). A substantially revised version of former subdivision (d), this provision addresses personal service inside the state. It clarifies the prior rule as to service on individuals, entities, and organizations and in some instances expands the opportunities for service. Alternative methods for serving these defendants (except the United States and its agencies, officers, and employees) are set out in subdivision (g).
Paragraph (1)(A) spells out so-called "refusal service" in more detail, drawing on such cases as Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000), and Riggin v. Dierdorff , 302 Ark. 517, 790 S.W.2d 897 (1990). The process server must, after "mak[ing] his or her purpose clear," leave the summons and complaint "in close proximity" to a defendant who refuses to accept the documents.
In paragraph (1)(B), the phrase "a place where the defendant resides" replaces its counterpart in former paragraph (d)(1), "dwelling house or usual place of abode." The effect of this change is to overturn State Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997), which defined the latter phrase in terms of domicile: a person's "fixed permanent home, the place to which he has-whenever absent-the intention of returning." Id. at 344, 954 S.W. 2d at 910. Residence and domicile are not synonymous; a person can have multiple residences but only one domicile. See Leathers v. Warmack, 341 Ark. 609, 19 S.W.3d 27 (2000); Lawrence v. Sullivan, 90 Ark. App. 206, 205 S.W.3d 168 (2005). This change makes Arkansas practice consistent with that in other jurisdictions whose courts have rejected the narrow approach taken in Mitchell. See, e.g., Nat'l Dev. Co. v. Triad Holding Corp., 930 F.2d 253 (2d Cir. 1991); United States v. Tobin, 483 F. Supp. 2d 68 (D. Mass. 2007); Blittersdorf v. Eikenberry, 964 P.2d 413 (Wyo. 1998); Sheldon v. Fettig, 919 P.2d 1209 (Wash. 1996); Van Buren v. Glasco, 217 S.E.2d 579 (N.C. 1975), overruled on other grounds by Love v. Moore, 291 S.E.2d 141 (N.C. 1982).
Paragraph (1)(B) also provides that the person receiving the process (summons and complaint) must be a family member who is at least 18 years old. Under former paragraph (d)(1), the recipient could be anyone 14 years of age or older residing in the defendant's place of abode. See Home-Stake Prod. Co. v. Talon Petroleum, C.A., 907 F.2d 1012 (10th Cir. 1997) (cook); Nowell v. Nowell, 384 F.2d 951 (5th Cir. 1967), cert. denied, 390 U.S. 956 (1968) (resident manager of apartment complex who lived in separate building); Nat'l Dev. Co., supra ( housekeeper);
Barclays Bank v. Goldman, 517 F. Supp. 403 (S.D.N.Y. 1981 ) (maid). The changes are intended to make actual notice to the defendant more likely.
Paragraph (2) clarifies service on minors and recognizes that, under Arkansas law, the age of majority is 18. Until that age is attained, all persons "shall be considered minors." Ark. Code Ann. § 9-25-101(a). The former rule permitted service on an individual at least 14 years of age and required service on parents or guardians of younger defendants. Paragraph (2) also takes into account minors emancipated by court order. See Ark. Code Ann. §§ 9-26-104, 9-27-362.
In paragraph (3), the term "incapacitated person" refers to a person who is "impaired by reason of a disability such as mental illness, mental deficiency, physical illness, chronic use of drugs, or chronic intoxication, to the extent of lacking sufficient understanding or capacity to make or communicate decisions to meet the essential requirements for his or her health or safety or to manage his or her estate." Ark. Code Ann. § 28-65-101(5)(A). The appointment of a conservator requires the consent of the person who, because of advanced age or physical infirmity, can no longer manage his or her own financial affairs. Id. §§ 28-67-103, 28-67-105. A conservator has the same powers and duties as a guardian, except as to the custody of the person. Id. § 28-67108.
Paragraph (4), which provides for service on incarcerated persons, largely tracks former subdivision (d)(4).
With respect to corporate entities, paragraph (5) expressly applies to "any corporation," including nonprofit corporations, professional corporations, and cooperatives. See Ark. Code Ann. §§ 4-28-201 et seq. (nonprofit corporations); §§ 4-29-201 et seq. (professional corporations); §§ 4-29-301 et seq. (medical corporations); §§ 4-29-401 et seq. (dental corporations); §§ 4-30-101 et seq. (cooperatives). In light of the word "any," this list is obviously not exclusive; for example, the provision reaches foreign corporations as well as those formed under Arkansas law.
Paragraph (5) retains the provisions of former subdivision (d)(5) authorizing service on a corporation's officer, managing or general agent, or any agent authorized by appointment or by law to receive service. It also permits, as did the opening clause of former subdivision (d), service as provided by statute. But paragraph (5) adds other options, including the corporation's registered agent and an officer's secretary or assistant. Although the holdover term "managing or general agent" is not defined, the Supreme Court has offered the following guidance:
[T]he person . . . must have some measure of discretion in operating some phase of the defendant's business or in the management of a given office [and] such status that common sense would trust him to see that the summons gets promptly into the hands of the right corporate people.
Lyons v. Forrest City Mach. Works, Inc., 301 Ark. 559, 561, 785 S.W.2d 220, 221 (1990) (plant manager, who had worked for corporate defendant for 32 years, was a managing or general agent). See also May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990) (bookkeeper who was "more or less in charge" of office at time of service held to be a managing or general agent).
Paragraph (6) addresses service on limited liability companies. It is based on paragraph (5) but contains language specific to the structure of limited liability companies. In particular, it provides for service on (1) a manager of the LLC if management is vested in managers rather than the members, or on the manager's secretary or assistant; or (2) a member of the LLC if 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. This language is based on that in Colo. R. Civ. P. 4(e)(4)(C) & (D). See also N.Y. Civ. P.L. section 311 -a.
Service on any type of partnership, including a general partnership, a limited liability partnership, a limited partnership, and a limited liability limited partnership, is governed by paragraph (7). It provides for service on any general partner or his or her secretary or assistant; the partnership's registered agent for service of process, or the agent's secretary or assistant; a managing or general agent of the partnership, 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.
Under the Revised Uniform Partnership Act, Ark. Code Ann. §§ 4-46-101 et seq., a general partnership can be sued in its own name, but a judgment against the partnership cannot be satisfied from a partner's individual assets unless there is also a judgment against that partner. Id. § 4-46-307(a) & (c). Generally, partners are jointly and severally liable for all obligations of the partnership. Id. § 4-46-306. They are also agents of the partnership for purposes of its business. Id. § 4-46-301(1).
A limited liability partnership must designate a registered agent if it has no office in this state, as must a foreign limited liability partnership. Id. §§ 4-46-1001(c), 4-46-1102(a). Service of process is made on the registered agent or the agent's secretary or assistant. A partnership becomes a limited liability partnership by a vote of the partners and by filing a "statement of qualification" with the Secretary of State. Id. § 4-46-1001. A foreign LLP must file a "statement of foreign qualification" before transacting business in the state. Id. § 4-46-1102. An obligation of a limited liability partnership is solely the obligation of the partnership. Id. § 4-46-306(c).
Domestic limited partnerships and foreign limited partnerships doing business in Arkansas must have a registered agent in the state. Id. § 4-47-114. Each general partner is an agent of the limited partnership for the purposes of its activities. Id. § 4-47-402. The certificate filed with the Secretary of State must state "whether the limited partnership is a limited liability limited partnership." Id. § 4-47-201(a)(4). Although a limited partnership is an entity distinct from its partners, id. § 4-47-104, each general partner is for the most part jointly and severally liable for all obligations of the limited partnership. Id. § 4-47-404. If the partnership elects LLP status, however, each general partner enjoys a complete shield from liability. Id. § 4-47-404(c). A judgment against a limited partnership alone is not a judgment against a general partner and cannot be satisfied from a general partner's assets. To reach those assets, the plaintiff must join a general partner as a party in the action against the limited partnership or proceed against that partner in a separate action. Id. § 4-47-405.
Paragraph (8) covers service on unincorporated associations, other than partnerships, subject to suit in their own names. This category at present appears limited to unincorporated nonprofit associations governed by the Revised Uniform Unincorporated Nonprofit Association Act, Ark. Code Ann. §§ 4-28-601 et seq. Under the Act, an unincorporated association of this type "may sue or be sued in its own name." Id. § 4-28-609(a). The term "registered agent" in paragraph (8) is intended to include an agent that an unincorporated nonprofit association authorizes to receive service of process by filing a statement with the Secretary of State. See id. § 4-28-611. Paragraph (8) also provides for service on "any manager of the association, " as does § 4-28-612.
Apart from the Revised Uniform Unincorporated Nonprofit Association Act, Arkansas follows the common-law rule that an unincorporated association cannot be sued in its own name. See, e.g., Massey v. Rogers, 232 Ark. 110, 334 S.W.2d 664 (1960). However, members of the association can be sued as a class by naming representative parties as defendants. This practice is reflected in Rule 23.2. See Ark. Cty. Farm Bureau v. McKinney 334 Ark. 582, 976 S.W.2d 945 (1998). Service of process is on the named representatives of the class.
Paragraph (9) addresses service in defendant class actions, whether against unincorporated associations under Rule 23.2 or in other cases under Rule 23. Service on a defendant class shall be on each of the parties named as class representatives in the same manner as if each representative were sued in a separate action. The intent is to incorporate the various methods of service depending on the type of class representative-natural person, corporation, etc.-as provided for in subdivision (f) of this rule. The plaintiff selects the representative defendants and has the burden to convince the court that they will adequately protect the interests of the defendant class. 7A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1770 (3d ed.).
Paragraph (10), providing for service on trusts, had no counterpart in the previous version of the rule. It is based on Colo. R. Civ. P. 7(e)(4)(E).
Paragraph (11), which addresses service on the United States, is essentially the same as former subdivision (d)(6). Similarly, paragraph (12), which applies to service on states and state agencies, is based on former subdivision (d)(7) but is limited to the state government. Paragraphs (13) through (15) are specific provisions for government entities that are not individually addressed in the present rule: cities, counties, and school districts. All other political subdivisions are to be served in accordance with paragraph (16). Finally, paragraph (17) provides for service on public officers and employees, a matter not covered by the current rule. These paragraphs are based in part on Colo. R. Civ. P. 7(e)(6)-(8) &; (10)-(11).
Subdivision (g). This subdivision lists four alternative methods of services that may be used on defendants except the United States and its agencies, officers, and employees: mail, commercial delivery company, warning order, and as the court directs. Only the fourth method is new, but some clarifying changes have been made in the provisions governing the other methods.
Paragraphs (1) and (2) essentially maintain the status quo with respect to service by mail and commercial delivery company. In an important change, however, paragraph (1)(A)(i) now requires service by certified mail, rather than "any form of mail addressed to the person to be served with a return receipt requested and delivery restricted." Certified mail meets these requirements and is most often used, while other forms of mail that qualify are not well-suited for service of process. Also, paragraph (1)(A)(ii) has been amended to provide expressly that although the refusal of mail will support a default judgment, failure to claim mail does not constitute a refusal. The Supreme Court so held in Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990).
Paragraph (3), which deals with warning orders, departs significantly from former subdivision (f). First, paragraph (3) limits warning orders issued by the clerk to cases in which the plaintiff "seeks a judgment that affects or may affect the rights of persons who need not be subject personally to the jurisdiction of the court"-that is, when jurisdiction is in rem. However, if in personam jurisdiction over the defendant is necessary, the plaintiff cannot obtain a warning order from the clerk but must seek a court order under paragraph (4).
Second, paragraph (3) requires the plaintiff to submit to the clerk "an affidavit showing that, after diligent inquiry, the identity or whereabouts of the defendant remains unknown." Under the previous versions of the rule, this requirement applied only when in personam jurisdiction over the defendant was necessary. See Newbern, Watkins &; Marshall, Arkansas Civil Practice & Procedure § 12:14, n.14. As a matter of due process, however, service by publication of a warning order is a matter of last resort to be employed only if a defendant's whereabouts cannot be ascertained through the exercise of reasonable diligence. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).
Third, paragraph (3)(B) establishes the minimum requirements for newspapers in which warning orders may be published and specifies the manner in which proof of publication of the warning order is to be made. The rule was previously silent on these matters. The requirements are drawn from two statutes, see Ark. Code Ann. §§ 16-3-104 & 16-3-105, which appear in a section of the code inapplicable to warning orders. Id. § 16-3-101(e).
Finally, paragraph (3) continues the time period in which the warning order must be published (two consecutive weeks) or posted at the courthouse (30 days). A judgment by default cannot be taken until after 30 days of the date that the warning order was first published or posted.
Under paragraph (4), which is new to Arkansas practice, the court may order any method of service "reasonably calculated to apprise the defendant of the action." To obtain an order, the plaintiff must show by affidavit that, "despite diligent effort," service cannot be obtained using one of the other methods of service. The "diligent effort" standard is analogous to the "diligent inquiry" requirement for warning-order cases requiring in personam jurisdiction, and it should be interpreted in the same manner. See, e.g., Horne v. Savers Federal Sav. & Loan Ass'n, 295 Ark. 182, 747 S.W.2d 580 (1988); Scott v. Wolfe, 2011 Ark. App. 438, 384 S.W.3d 609.
As noted above, paragraph (4) requires a warning order issued by the court when in personam jurisdiction over the defendant is necessary. This change from prior practice, under which all warning orders were issued by the clerk, is a safeguard prompted by due process considerations. As one court has observed: "Notice by publication, constitutionally suspect in 1950, is even more vulnerable today, given the precipitous decline in newspaper readership." In re E.R., 385 S.W.3d 552, 560-61 (Tex. 2012).
Subdivisions (h)-(j). With minor exceptions, subdivision (h) tracks former subdivision (e). Its subheading has been revised to better reflect the content of the rule ("Service Outside the State"), and paragraph (3) has been updated to include service by commercial delivery company. In addition, paragraph (5) has been rewritten to make plain that service "as directed by the court" is permissible only upon a showing that the other methods listed in subdivision (f) have, despite diligent effort, proved unsuccessful. Stylistic changes have been made in subdivisions (i) and (j), and the cross-references in the former have been changed. Subdivision (i) provides that a motion to extend the time for service is proper if filed within 120 days of the filing of the complaint or within the time period provided by a previous extension of time. The rule was amended in 2014 to expressly address subsequent extensions and to overrule Powell v. Fernandez, 2013 Ark. App. 595.
Historically, motions to extend the time for service were considered proper if filed within the time period provided by a previous extension. See Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994); see also Henyan v. Peek, 359 Ark. 486, 199 S.W.3d 51 (2004); Wilkins v. Food Plus, Inc., 99 Ark. App. 64, 257 S.W.3d 107 (2007). The Court of Appeals, however, held in Powell that a subsequent extension had to be sought within 120 days of the filing of the complaint.
Subdivision (k). This new provision reestablishes a substantial-compliance standard for process and service of process under Rule 4 when the defendant has actual notice of the complaint and has filed a timely answer. Other states have adopted similar rules. E.g., Ore. R. Civ. P. 7(G).
Subdivision (k) is in accord with older Arkansas authority holding the plaintiff to a substantial-compliance standard, both as to the summons and service of process, in nondefault cases. E.g., Ford Life Ins. Co. v. Parker, 277 Ark. 516, 644 S.W.2d 239 (1982). More recent cases, however, have held that a defendant's actual notice of a lawsuit does not validate defective process or defective service. E.g., Trusclair v. McGowan Working Partners, 2009 Ark. 203, 203 S.W.3d 428; Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996).
The strict-compliance standard reflected in these decisions grows out of default situations. E.g., Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). Despite the amendment of Ark. R. Civ. P. 55 to echo its federal counterpart, getting a default judgment set aside in Arkansas remains notoriously difficult. E.g., McGraw v. Jones, 367 Ark. 138, 238 S.W.3d 15 (2006). Insistence on strict compliance is a helpful shield in the default situation. But the same standard should not be a sword when the defect in process or service of process was minor and the defendant had actual notice of the complaint and filed a timely response.
It is often stated that service requirements, being in derogation of common-law rights, must be strictly construed and complied with exactly. E.g., Trusclair, 2009 Ark. 203, at 3, 203 S.W.3d at 430. This rule arose 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 v. Stiles, 250 Ark. 249, 254, 464 S.W.2d 573, 577 (1971); see generally Kerr v. Greenstein, 213 Ark. 447, 212 S.W.2d 1 (1948) (construing nonresident motorist statute). When a defendant has actual notice of the complaint and does not default, however, due-process concerns are not present and the strict-compliance rule should not apply.
Application of the rule in nondefault situations is also at odds with the guiding principal of Rule 4 -ensuring due process by giving the defendant adequate notice of the suit and an opportunity to respond before a judgment is entered. Subdivision (k) retains the strict-compliance rule in default situations, while reviving the substantial-compliance standard when the defendant has actual notice of a complaint and files a timely response. In the latter instance, due process is satisfied even if marginal defects in the summons or the service exist.
Subdivision (l). This new provision addresses a problem that has arisen primarily in divorce cases. It requires that a party who wishes to affirmatively waive sufficiency of process and sufficiency of service of process do so in writing, file the document with the clerk, and serve it on all parties. Otherwise, the waiver is not effective. This waiver goes only to these matters and does not, of itself, waive any other defense, such as lack of personal jurisdiction or improper venue.