In re Comm. on Civ. Practice , 2016 Ark. 29 ( 2016 )

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SUPREME COURT OF ARKANSAS
Opinion Delivered January 28, 2016
IN RE RECOMMENDATIONS OF
THE COMMITTEE ON CIVIL
PRACTICE
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 partnership, including a general
partnership, a limited liability partnership, a limited partnership, and a limited liability limited
partnership, shall be 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.
(8) Unincorporated Associations. Service on an unincorporated association
subject to suit under its own name, except a partnership, shall be on its registered agent for
service of process, or the agent’s secretary or assistant; any manager of the association, or the
manager’s secretary or assistant; any agent authorized by appointment or by law to receive
service of process; or as provided by statute.
(9) Defendant Class Actions. 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.
(10) Trusts. Service on a trust shall be on a trustee of the trust, on the trustee’s
secretary or assistant, or as provided by statute.
(11) (6) The United States. Service on Upon the United States or any of its
agencies, officers, or agency employees shall be thereof, by service upon any person and in
such manner as is authorized by the Federal Rules of Civil Procedure or by other federal law.
(7) Upon a state or municipal corporation or other governmental organization
or agency thereof, subject to suit, by delivering a copy of the summons and complaint to the
chief executive officer thereof, or other person designated by appointment or by statute to
receive such service, or upon the Attorney General of the state if such service is accompanied
by an affidavit of a party or his attorney that such officer or designated person is unknown or
cannot be located.
(12) States and State Agencies. Service on a state or any of its agencies,
departments, boards, or commissions subject to suit shall be on the chief executive officer,
director, or chairman, any of his or her assistants or secretaries, any other person designated
by appointment or by statute to receive service of process, or on the Attorney General of the
state if service is accompanied by an affidavit of a party or the party’s attorney that the officer
or designated person is unknown or cannot be located.
(13) Municipal Corporations. Service on a municipal corporation shall be on the
mayor, city manager, city administrator, or city clerk, or any of their assistants or secretaries.
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(14) Counties. Service on a county shall be on the county judge, county
administrator, county clerk, circuit clerk if no county clerk has been elected, or any of their
assistants or secretaries.
(15) School Districts. Service on a school district shall be on the president of the
board of directors, the superintendent of schools, or any of their assistants or secretaries.
(16) Other Political Subdivisions. Service on any political subdivision, special
district, or quasi-municipal agency not listed in this subdivision shall be on any officer,
director, chairman, or manager or any of his or her assistants or secretaries.
(17) Public Officers or Employees. Service on an officer or employee of a
government entity listed in paragraphs (12)-(16) of this subdivision, acting in an official
capacity, shall be on the officer or employee and by mailing a copy of the process as specified
in subdivision (g)(1)(A)(i) of this rule to an official on whom service can be made pursuant
to paragraphs (12)-(16), as applicable, and a copy to the Attorney General if a state officer or
employee is sued.
(g) Alternative Methods of Service. In addition to the methods of service described in
subdivision (f) of this rule, process may be served on any defendant except the United States
and any of its agencies, officers, or employees by the methods enumerated in this subdivision.
(1) Service by Mail. The plaintiff or an attorney of record for the plaintiff shall
serve process by mail only as provided in this paragraph.
(A)(i) Certified mail shall be addressed to the person to be served with
a return receipt requested and delivery restricted to the addressee or the agent of the addressee.
The addressee must be a natural person specified by name, and the agent of the addressee must
be authorized in accordance with U.S. Postal Service regulations. Notwithstanding the
foregoing, service on the registered agent of a corporation or other organization may be made
by certified mail with a return receipt requested.
(ii) Service pursuant to this paragraph (A) shall not be the basis
for the entry of a judgment by default unless the record contains a return receipt signed by the
addressee or the agent of the addressee or a returned envelope, postal document, or affidavit
by a postal employee reciting or showing refusal of the mailed process by the addressee.
Failure to claim mail does not constitute refusal for purposes of this paragraph.
(iii) If delivery of mailed process is refused, the plaintiff or
attorney making service, promptly on receipt of notice of the refusal, shall mail to the
defendant by first-class mail a copy of the process and a notice that despite the refusal the case
will proceed and that judgment by default may be entered for the relief demanded in the
complaint unless the defendant appears to defend the suit.
(iv) A judgment by default may be set aside pursuant to Rule
55(c) if the addressee demonstrates to the court that the return receipt was signed or delivery
was refused by someone other than the addressee or the agent of the addressee.
(B)(i) First-class mail, postage prepaid, shall be addressed to the person
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to be served, together with two copies of a notice and acknowledgment conforming
substantially to a form adopted by the Supreme Court and a return envelope, postage prepaid,
addressed to the sender.
(ii) If no acknowledgment of service is received by the sender
within 20 days after the date of mailing, service of process shall be made in a manner other
than by mail or by commercial delivery company.
(iii) Unless good cause is shown for not doing so, the court shall
order the payment of the costs of service by the person served if that person does not
complete and return, within 20 days after mailing, the notice and acknowledgment of receipt
of summons. The notice and acknowledgment of receipt of process shall be executed under
oath or affirmation.
(2) Service by Commercial Delivery Company. The plaintiff or an attorney of record
for the plaintiff shall serve process by commercial delivery company only as provided in this
paragraph.
(A) The documents must be addressed to the person to be served and
delivered by a commercial delivery company that (1) obtains signatures of recipients, (2)
maintains permanent records of actual delivery, and (3) has been approved by the circuit court
in which the action is filed or in the county where service is to be made. The circuit clerk
shall maintain and post a list of approved commercial delivery companies.
(B) The process must be delivered to the defendant or an agent
authorized to receive service of process on behalf of the defendant. The signature of the
defendant or agent must be obtained.
(C)(i) Service pursuant to this paragraph (2) shall not be the basis for a
judgment by default unless the record reflects actual delivery on, and the signature of, the
defendant or agent, or an affidavit by an employee of an approved commercial delivery
company reciting or showing refusal of the process by the defendant or agent.
(ii) If delivery of process is refused, the plaintiff or attorney making the
service, promptly on receipt of notice of the refusal, shall mail to the defendant by first class
mail a copy of the process and a notice that despite the refusal the case will proceed and that
judgment by default may be entered for the relief demanded in the complaint unless the
defendant appears to defend the suit.
(iii) Any judgment by default may be set aside pursuant to Rule 55(c)
if the court finds that someone other than the defendant or agent signed the receipt or refused
the delivery or that the commercial delivery company had not been approved as required by
this paragraph.
(3) Service by Warning Order. If 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,
service may be by warning order issued by the clerk. On the filing by the plaintiff or his or
her attorney of an affidavit showing that, after diligent inquiry, the identity or whereabouts
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of the defendant remains unknown, the clerk shall issue a warning order to be published in
a newspaper of general circulation as described in paragraph (B) or posted at the courthouse
as provided in paragraph (C).
(A) The warning order shall state the caption of the pleadings; briefly
describe the nature of the action and the relief sought; include, if applicable, a description of
the property or other res to be affected by the judgment; and warn the defendant or interested
person to appear within 60 days from the date of first publication of the warning order or face
entry of judgment by default or be otherwise barred from asserting his or her interest.
(B)(i) The party seeking judgment shall cause the warning order to be
published weekly for four consecutive weeks in a newspaper having general circulation in the
county where the action is filed and to be sent, with a copy of the complaint, to the defendant
or interested person at his or her last known address by certified mail as provided in paragraph
(1)(A)(i) of this subdivision.
(ii) As used in this subdivision, the term “newspaper” means a printed
publication in the English language of no less than four pages that has been disseminated
without interruption at least once a week for the preceding 12 months in the county where
the action has been filed, holds a second-class mailing permit, has at least 50-percent paid
circulation, and devotes an average of 40 percent of its space to news and information of
interest to the general public.
(iii) Proof of publication shall be by affidavit of the editor, proprietor,
or business manager of the newspaper, with a copy of the published notice attached, stating
the dates on which the notice appeared.
(C) If the party seeking judgment has been granted leave to proceed as
an indigent without prepayment of costs, the clerk shall conspicuously post the warning order
for a continuous period of 60 days at the courthouse or courthouses of the county where the
action is filed. The party seeking judgment shall cause the warning order and a copy of the
complaint to be sent to the defendant or interested person at his or her last known address by
certified mail as provided in paragraph (1)(A)(i) of this subdivision. Newspaper publication of
the warning order is not required. Proof of posting shall be by a letter or other statement
signed by the clerk stating the location and dates on which the warning order was posted.
(D) No judgment by default shall be taken pursuant to this subdivision
unless the party seeking the judgment or his or her attorney has filed with the court an
affidavit stating that 60 days have elapsed since the warning order was first published or
posted. The affidavit shall be accompanied by the required proof of publication or posting of
the warning order. If a defendant or other interested person is known to the party seeking
judgment or to his or her attorney, the affidavit shall also state that 60 days have elapsed since
a letter enclosing a copy of the warning order and the complaint was mailed to the defendant
or other interested person.
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(4) Service as Directed by Court Order. On motion without notice and after a
showing by affidavit or other proof as the court may require that, despite diligent effort,
service cannot be made by the methods authorized by this rule, the court may order service
by any method or combination of methods reasonably calculated to apprise the defendant of
the action, including service by warning order meeting the minimum requirements of
paragraph (3)(A)-(D) of this subdivision.
(h) (e) Other Service Outside the State. Whenever the law of this state authorizes service
outside this state, the service, when reasonably calculated to give actual notice apprise the
defendant of the action, may be made:
(1) By personal delivery in the same manner prescribed for service within this
state;
(2) In any manner prescribed by the law of the place in which service is made
in an action in any of its courts of general jurisdiction;
(3) By mail or commercial delivery company as provided in subdivision (g)(1)
and (2) (d)(8) of this rule;
(4) As directed by a foreign authority in response to a letter rogatory or pursuant
to the provisions of any treaty or convention pertaining to the service of a document in a
foreign country;
(5) By any method or combination of methods as As directed by order of the
court. on motion, without notice and after a showing by affidavit or other proof as the court
may require that, despite diligent effort, service cannot be made by the methods authorized
by this rule.
(f) Service By Warning Order. (1) If it appears by the affidavit of a party seeking
judgment or his or her attorney that, after diligent inquiry, the identity or whereabouts of a
defendant remains unknown, or if a party seeks a judgment that affects or may affect the rights
of persons who are not and who need not be subject personally to the jurisdiction of the
court, service shall be by warning order issued by the clerk. This subdivision shall not apply
to actions against unknown tortfeasors.
(2) The warning order shall state the caption of the pleadings; include, if applicable,
a description of the property or other res to be affected by the judgment; and warn the
defendant or interested person to appear within 30 days from the date of first publication of
the warning order or face entry of judgment by default or be otherwise barred from asserting
his or her interest. The party seeking judgment shall cause the warning order to be published
weekly for two consecutive weeks in a newspaper having general circulation in the county
where the action is filed and to be mailed, with a copy of the complaint, to the defendant or
interested person at his or her last known address by any form of mail with delivery restricted
to the addressee or the agent of the addressee.
(3) If the party seeking judgment has been granted leave to proceed as an indigent
without prepayment of costs, the clerk shall conspicuously post the warning order for a
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continuous period of 30 days at the courthouse or courthouses of the county wherein the
action is filed. The party seeking judgment shall cause the warning order to be mailed, with
a copy of the complaint, to the defendant or interested person as provided in paragraph (2).
Newspaper publication of the warning order is not required.
(4) No judgment by default shall be taken pursuant to this subdivision unless the party
seeking the judgment or his or her attorney has filed with the court an affidavit stating that
30 days have elapsed since the warning order was first published as provided in paragraph (2)
or posted at the courthouse pursuant to paragraph (3). If a defendant or other interested
person is known to the party seeking judgment or to his or her attorney, the affidavit shall also
state that 30 days have elapsed since a letter enclosing a copy of the warning order and the
complaint was mailed to the defendant or other interested person as provided in this
subdivision.
(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.
(h) Amendment. At any time in its discretion and upon such terms as it deems just, the
court may allow any summons 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 summons is issued.
(i) Time Limit for Service. (1) If service of the process summons and a copy of the
complaint is not made on a defendant within 120 days after the filing of the complaint or
within the time period established by an extension granted pursuant to paragraph (2), the
action shall be dismissed as to that defendant without prejudice upon on motion or upon on
the court’s initiative. If service is by mail or by commercial delivery company pursuant to
subdivision (d)(8)(A) & (C) (g)(1) and (2) of this rule, service shall be deemed to have been
made for purposes of this subdivision (i) on the date that the process was accepted or refused.
(2) The court, upon on written motion and a showing of good cause, may
extend the time for service if the motion is made within 120 days of the filing of the suit or
within the time period established by a previous extension. To be effective, an order granting
an extension must be entered within 30 days after the motion to extend is filed, by the end
of the 120-day period, or by the end of the period established by the previous extension,
whichever date is later.
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(3) This subdivision shall not apply to service in a foreign country pursuant to
subdivision (e) (h) of this rule or to complaints filed against unknown tortfeasors.
(j) Service of Other Writs and Papers. Whenever any rule or statute requires service upon
on any person, firm, corporation or other entity of notices, writs, or papers other than a
summons and complaint, including without limitation writs of garnishment, such the notices,
writs or papers may be served in the manner prescribed in this rule for service of a summons
and complaint process. Provided, however, any writ, notice or paper requiring direct seizure
of property, such as a writ of assistance, writ of execution, or order of delivery shall be made
as otherwise provided by law.
(k) Disregard of Error; Actual Notice. Any error as to the sufficiency of process or the
sufficiency of service of process shall be disregarded if the court determines that the plaintiff
substantially complied with the provisions of this rule and that the defendant received actual
notice of the complaint and filed a timely answer or a timely motion pursuant to Rule 12(b).
(l) Waiver. A party seeking to affirmatively waive sufficiency of service and sufficiency
of process shall do so in writing. A waiver pursuant to this subdivision: (1) is not effective
unless filed with the clerk and served on all parties as provided in Rule 5; and (2) does not of
itself waive any other defense.
Reporter’s Notes (20__ Amendment). Rule 4 has undergone several modifications
since it became effective in 1979. The 20__ amendment substantially revises and reorganizes
the rule, and these changes necessarily affect cases applying the earlier versions.
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.
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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
cross-reference. 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).
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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 (1)(D), which is new, expands current law by permitting service at a
defendant’s workplace, if he or she maintains an office or other fixed location for doing
business. Other states have similar provisions. E.g., Ore. R. Civ. P. 7(D)(2)(c); Pa. R. Civ.
P. 402(a)(2)(iii). Service may be made on a receptionist or “the person then apparently in
charge.” The quoted phrase is based on May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785
S.W.2d 23 (1990), in which the Supreme Court upheld service on a bookkeeper who was
“more or less in charge” of the office when service was made. Paragraph (1)(D) does not
permit serving a defendant who is employed at the office or other place of business, as that
could prove embarrassing to the employee, disruptive of business operations, or in some work
settings even unsafe.
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.
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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. § 28-67-108.
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
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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. § 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 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 LLLP 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
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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. Cnty. 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
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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).
With respect to commercial delivery companies, a new sentence in paragraph (2)(A)
requires the circuit clerk to maintain and post a list of court-approved commercial delivery
companies. This requirement mirrors that under Administrative Order 20 No. (c)(2) for
approved private-process servers.
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) increases the time period in which the warning order must be
published (from two consecutive weeks to four) or posted at the courthouse (from 30 days
to 60) in the interest of increasing the likelihood of notice to the defendant. A judgment by
default cannot be taken until after 60 days of the date that the warning order was first
published or posted, as opposed to 30 days under the prior rule. A corresponding change has
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been made in Rule 12(a)(1).
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 or pre-answer motion under Rule 12(b) in response
to it. 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
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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.
2. Ark. R. Civ. P. 12(a)(1).
Rule 12. Defenses and Objections; When and How Presented; By Pleading or
Motion; Motion for Judgment on the Pleadings.
(a) When Presented. (1) A defendant shall file his or her answer within 30 days after the
service of summons and complaint upon him or her. A defendant served by warning order
under Rule 4(f) 4(g)(3) or (4) shall file an answer within 30 60 days from the date of first
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publication or posting of the warning order. A defendant incarcerated in any jail, penitentiary,
or other correctional facility in this state, however, shall file an answer within 60 days after
service. A party served with a pleading stating a cross-claim or counterclaim against him or
her shall file an answer or reply thereto within 30 days after service upon the party. The court
may, upon motion of a party, extend the time for filing any responsive pleading.
...
Reporter’s Notes (20__ Amendment). Subdivision (a)(1) has been amended to
reflect revised Rule 4(g), which among other things increases from 30 to 60 days the period
before judgment by default may be taken when service is by warning order. Accordingly,
subdivision (a)(1) now provides that if a defendant has been served by warning order pursuant
to Ark. R. Civ. P. 4(g)(3) or (4), the answer must be filed within 60 days of the date the
warning order was first published or posted.
3. Administrative Order No. 18. Administration of District Courts.
...
6. Jurisdiction of State District Court Judgeships. In addition to the powers and duties of
a district court under this administrative order, a state district court shall exercise additional
power and authority as set out in this section.
...
(d) Consent Process.
(1) Notice. The circuit clerk shall give the plaintiff notice of the consent
jurisdiction of a state district court judge when a suit is filed in the civil, domestic relations,
or probate division of circuit court. The circuit clerk shall also include attach the same notice
with to the summons for service on the defendant. Any party may obtain a “Consent to
Proceed before a State District Court Judge” form from the Circuit Clerk’s Office.
Reporter’s Notes (20__ Amendment): Administrative Order No. 18(6)(d)(1)
directs that the circuit clerk shall give to “give the plaintiff notice of the consent jurisdiction
of a state district court judge when a suit is filed in the civil, domestic relations, or probate
division of circuit court.” Rather than “attach” that notice to the summons, as under the
current version of this provision, the clerk must now “include” it with the summons for
service on the defendant. This language accommodates electronic as well as paper filing.
4. Form of Summons
The Supreme Court of Arkansas has adopted the following form of summons for use
in all cases in which personal service is pursuant to Rule 4(c), (f), and (h) of the Arkansas
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Rules of Civil Procedure. The form incorporates a proof of service to be made by a sheriff,
deputy sheriff, or other person, as appropriate, in accordance with Rule 4(g).
The form may be modified as needed in special circumstances, and additional
Additional notices, if required, should be inserted as in the appropriate space. Examples
include the notices required by statute in unlawful-detainer and replevin actions, see Ark.
Code Ann. §§ 18-60-307(a) and 18-60-808(a), and the notice of the consent jurisdiction of
a state district court that must be included pursuant to Ark. Sup. Ct. Admin. Order No.
18(6)(d)(1).
This form is not for use in cases of constructive service pursuant to Rule 4(g)(3). The
adoption of this form is in compliance with Rule 4(b) and does not modify or amend any part
of that rule.
Effective July 1, 2012
Corrected as of August 14, 2012
Revised ________, 20__
Reporter’s Notes (20__ Amendment). In the introduction to the summons form,
the second paragraph now provides that the form “may be modified as needed in special
circumstances.” It also states that “[a]dditional notices, if required, should be inserted as
appropriate.” The revised form combines these sentences and adds a sentence listing examples
of the notices that may be “inserted as appropriate,” including the notice of consent
jurisdiction that is required by Administrative Order No. 18(6)(d)(1).
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THE CIRCUIT COURT OF ______________ COUNTY, ARKANSAS
________ DIVISION [Civil, Probate, etc.]
______________________________
Plaintiff
v. No. _______________
______________________________
Defendant
SUMMONS
THE STATE OF ARKANSAS TO DEFENDANT:
____________________________ [Defendant's name and address.]
____________________________
A lawsuit has been filed against you. The relief demanded is stated in the attached complaint.
Within 30 days after service of this summons on you (not counting the day you received it)
— or 60 days if you are incarcerated in any jail, penitentiary, or other correctional facility in
Arkansas — you must file with the clerk of this court a written answer to the complaint or
a motion under Rule 12 of the Arkansas Rules of Civil Procedure.
The answer or motion must also be served on the plaintiff or plaintiff's attorney, whose name
and address are:_______________________________________________________
If you fail to respond within the applicable time period, judgment by default may be entered
against you for the relief demanded in the complaint.
Additional Notices Included: _____________________________________________
CLERK OF COURT
Address of Clerk's Office
_____________________
_____________________ ________________________________
[Signature of Clerk or Deputy Clerk]
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Date:_____________________________
[SEAL]
No. __________ This summons is for ____________________ (name of Defendant).
PROOF OF SERVICE
On ________________ [date] I personally delivered the summons and complaint to the
defendant at __________ [place]; or
After making my purpose to deliver the summons and complaint clear, on
___________________ [date] I left the summons and complaint in the close proximity of the
defendant by ______________________________________ [describe how the summons and
complaint was left] after he/she refused to receive it when I offered it to him/her; or
On ________________ [date] I left the summons and complaint with _______________,
a member of the defendant’s family at least 18 years of age, at _______________________
[address], a place where the defendant resides; or
On [date] I delivered the summons and complaint to __________ [name
of individual], an agent authorized by appointment or by law to receive service of summons
on behalf of ____________________ [name of defendant]; or
On__________________ [date] at ________________________ [address], where the
defendant maintains an office or other fixed location for the conduct of business, during
normal working hours I left the summons and complaint with [circle one] [a receptionist]
or [the employee who was then apparently in charge]; or
I am the plaintiff or an attorney of record for the plaintiff in a lawsuit, and I served the
summons and complaint on the defendant by certified mail, return receipt requested, restricted
delivery, as shown by the attached signed return receipt.
I am the plaintiff or attorney of record for the plaintiff in this lawsuit, and I mailed a copy
of the summons and complaint by first-class mail to the defendant together with two copies
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of a notice and acknowledgment and received the attached notice and acknowledgment form
within twenty days after the date of mailing.
Other [specify]:
I was unable to execute service because:
My fee is $ __________.
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To be completed if service is by a sheriff or deputy sheriff:
Date: __________
SHERIFF OF __________ COUNTY, ARKANSAS
By: _____________________________________________
[signature of server]
_________________________________________________
[printed name, title, and badge number]
To be completed if service is by a person other than a sheriff or deputy sheriff:
Date: __________
By: ______________________________________________
[signature of server]
__________________________________________________
[printed name]
Address: __________________________________________
Phone: ___________________________________
Subscribed and sworn to before me this date: __________
Notary Public _____________________________________
My Commission Expires: ___________________________________
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Additional information regarding service or attempted service:
________________________________________________________________________
________________________________________________________________________
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B. Addresses and Contact Information on Pleadings
1. Ark. R. Civ. P. 10. Form of pleadings.
(a) Caption; Names of Parties; Addresses. Every pleading shall contain a caption setting forth the
name of the court, the title of the action, the file number and a designation as in Rule 7(a).
In the complaint, the title of the action shall include the names of all the parties, but in other
pleadings, it is sufficient to state the name of the first party on each side with an appropriate
indication of other parties. All pleadings shall contain the name, bar number, mailing address,
telephone number, fax number and email address of the attorney signing the pleading, or of
the party if not represented by an attorney.
(b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in
numbered paragraphs, the contents of each of which shall be limited as far as practicable to
a statement of a single set of circumstances; and a paragraph may be referred to by number
in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and
each defense other than denials shall be stated in a separate count or defense.
(c) Adoption by Reference; Exhibits. Statements in a pleading may be adopted by reference in
a different part of the same pleading or in another pleading or in any motion. A copy of any
written instrument which is an exhibit to a pleading is a part thereof for all purposes.
(d) Required Exhibits. A copy of any written instrument or document upon which a claim or
defense is based shall be attached as an exhibit to the pleading in which such claim or defense
is averred unless good cause is shown for its absence in such pleading.
Reporter’s Notes (20__ Amendment). Rule 10 (a) was amended by adding a new final
sentence that specifies the addresses and contact information that are required on pleadings.
The same information is also required on motions and other papers. See Ark. R. Civ. P. 7
(b)(3).
2. Ark. R. Civ. P. 11. Signing of pleadings, motions, and other papers; sanctions.
(a) Every pleading, motion, and other paper of a party represented by an attorney shall be
signed by at least one attorney of record in his or her individual name, whose address shall
be stated. A party who is not represented by an attorney shall sign his or her pleading,
motion, or other paper and state his address and telephone number, if any. Except when
otherwise specifically provided by rule or statute, pleadings need not be verified or
accompanied by affidavit. The signature of an attorney or party constitutes a certificate by
him or her that he or she has read the pleading, motion, or other paper; that to the best of
his or her knowledge, information, and belief formed after reasonable inquiry it is well
grounded in fact and is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, that it is not interposed for any improper purpose,
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such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,
and that it complies with the requirements of Rule of Civil Procedure 5(c)(2) regarding
redaction of confidential information from case records submitted to the court. If a pleading,
motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the
omission is called to the attention of the pleader or movant. If a pleading, motion, or other
paper is signed in violation of this rule, the court, upon motion or upon its own initiative,
shall impose upon the person who signed it, a represented party, or both, an appropriate
sanction, which may include an order to pay to the other party or parties the amount of the
reasonable expenses incurred because of the filing of the pleading, motion, or other paper,
including a reasonable attorney's fee.
....
Reporter’s Notes (20__ Amendment). Rule 11(a) was amended to delete references to
addresses and telephone numbers. Addresses and other contact information that are required
to be stated in pleadings, motions and other papers are more appropriately addressed in Rule
10. See Ark. R. Civ. P. 10 (a).
C. Space for File Marks
Administrative Order No. 2.
...
(g) File Mark. (1)There shall be a two inch (21) top margin on the first page of each
document submitted for filing to accommodate the court’s file mark. If the pleading or
document must be filed in multi-parts because of size or for other reasons, the first page of
each part must include the file name and file mark and shall clearly indicate the part number
and number of parts (example, part 1 of 2).
(2) If a document is such that the first page cannot be drafted to provide sufficient space to
satisfy the file-mark requirement, the document must include the uniform cover page
developed by the Administrative Office of the Courts and found under Forms and
Publications at courts.arkansas.gov.
Reporter’s Notes (20__ Amendments). Subdivision (g) was added to ensure that file
marks are legible and is especially needed at this time to accommodate electronic-filing
software.
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UNIFORM COVER PAGE
[To be used when required by Administrative Order No. 2 (g)*]
COURT: ______________ COURT OF ___________________________ COUNTY
Docket/Case Number: ______________________________
CASE NAME:
PLAINTIFF/
PETITIONER: _________________________________________
DEFENDANT/
RESPONDENT: _________________________________________
TITLE OF PLEADING OR
DOCUMENT BEING FILED
(If a multi-part file,
the designation “part _ of _”
(example, part 1 of 2)): _________________________________________
*Administrative Order No 2.
(g) File Mark. (1)There shall be a two inch (2") top margin on the first page of each
document submitted for filing to accommodate the court’s file mark. If the pleading or
document must be filed in multi-parts because of size or for other reasons, the first page of
each part must include the file name and file mark and shall clearly indicate the part number
and number of parts (example, part 1 of 2).
(2) If a document is such that the first page cannot be drafted to provide sufficient
space to satisfy the file-mark requirement, the document must include the uniform cover
page developed by the Administrative Office of the Courts and found under Forms and
Publications at courts.arkansas.gov.
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