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Mullen v. Stant USA Corp.

Court of Appeals of Arkansas, Division IV

March 11, 2015

TERRANCE WILLIAMS and JOYCE MULLEN, APPELLANTS
v.
STANT USA CORP., and LANETTA PLUNKETT and EDDIE POWERS JOHN DOES 1-10, APPELLEES

Page 756

APPEAL FROM THE JEFFERSON, COUNTY CIRCUIT COURT. No. CV-2013-237-2. HONORABLE ROBERT H. WYATT, JR., JUDGE.

Sutter & Gilliham, P.L.L.C., by: Luther Oneal Sutter, for appellants.

Law Offices of Cary Schwimmer, by: Cary Schwimmer; and Ramsay, Bridgforth, Robinson & Raley LLP, by: Spencer F. Robinson, for appellee.

HARRISON and WHITEAKER, JJ., agree.

OPINION

Page 757

LARRY D. VAUGHT, Judge.

Appellants Terrance Williams and Joyce Mullen appeal the Jefferson County Circuit Court's dismissal with prejudice of their employment-discrimination and retaliation claims against appellee Stant USA Corp. (" Stant" ). We affirm the dismissal with prejudice of Williams's claims and Mullen's discrimination claim. We affirm the dismissal of Mullen's retaliation claim but modify the dismissal to be without prejudice.

Terrence Williams filed this lawsuit against Stant, two individual defendants, and ten unnamed John Doe defendants, alleging race discrimination and retaliation under the Arkansas Civil Rights Act (ACRA), as codified at Arkansas Code Annotated section 16-123-105 et seq., and common-law defamation. This complaint was never timely served on Stant. Williams filed an amended complaint that added a second plaintiff, Joyce Mullen. Williams's claims remained the same, and Mullen alleged race discrimination and retaliation under the ACRA. Stant moved

to dismiss for failure to obtain timely service under Rule 4(i), arguing that neither the original complaint nor the amended complaint was served within 120 days from the date of filing.[1] The court granted the motion and dismissed all of Williams's claims and Mullen's discrimination claim with prejudice because the applicable statutes of limitations had run on those claims.[2] The court then dismissed Mullen's retaliation claim for failure to obtain timely service, but noted that the limitations period as to this claim had not yet run. The circuit court ordered that the dismissal of Mullen's retaliation claim be with prejudice because Mullen had filed a separate federal lawsuit against the same defendants on the same set of facts alleging discrimination and retaliation under federal law. The dismissal order stated that Stant was the only remaining defendant and the dismissal of Stant therefore required dismissal of the entire action.[3] Appellants filed a timely notice of appeal. The only issue on appeal is whether the circuit court erred in mandating that all claims should be dismissed with prejudice rather than without prejudice.

" [We] review a circuit court's factual conclusions regarding service of process under a clearly erroneous standard, but when a complaint is dismissed on a question of law, we conduct a de novo review." McMahan v. Ark. Dep't of Human Servs., 2014 Ark.App. 590, at 5, 446 S.W.3d 640, 642. Service of valid process is necessary to give a circuit court jurisdiction over a defendant. Jones v. Turner, 2009 Ark. 545, 354 S.W.3d 57. As statutory service requirements are

in derogation of common-law rights, they must be strictly construed, and compliance with them must be exact. McMahan, 2014 Ark.App. 590, at 4--5, 446 S.W.3d at 642. The same reasoning applies to service requirements imposed by court rules. Id., 446 S.W.3d at 642.

Page 758

Our service rules place " an extremely heavy burden on the plaintiff to demonstrate that compliance with those rules has been had." Brown v. Ark. Dep't of Human Servs., 2013 Ark.App. 201, at 4 (citing Dobbs v. Discover Bank, 2012 Ark.App. ...


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