United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
Kinnaman commenced this negligence action on August 15, 2017,
against Whitney Turk Hartman and Akel Holdings, Inc., d/b/a
Packs Discount Lumber, Inc., and Packs Discount Lumber Co.,
to recover damages arising out of a 2011 car accident. The
defendants have moved to dismiss the action on three grounds:
(1) insufficiency of process under Federal Rule of Civil
Procedure 12(b)(4); (2) insufficiency of service of process
under Federal Rule of Civil Procedure 12(b)(5); and (3)
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The motion is denied.
defendants argue that this action is barred by Arkansas's
three-year statute of limitations, codified at Ark. Code Ann.
§ 16-56-105. Although the present action was not
commenced until August 2017, the plaintiff filed a previous
action in this Court on May 27, 2014. The May 2014 suit
alleged negligence arising out of the 2011 car accident
against Whitney Turk Hartman, Packs Discount Lumber, Inc.,
and an insurance company not named here. The plaintiff served
defendant Turk Hartman and served Richard Akel, as the agent
for service of process of Packs Discount Lumber, Inc. An
attorney entered an appearance on behalf of both Turk Hartman
and Packs Discount Lumber, Inc. On August 16, 2016, this
Court dismissed that case without prejudice for failure to
prosecute. Document #13-5. The plaintiff commenced this
action within one-year of the dismissal.
Arkansas savings statute tolls the three-year statute of
limitations period where the original action is timely
“commenced” and where the plaintiff suffers a
“nonsuit.” Ark. Code Ann. § 16-56-126(a)(1).
An action is “commenced” when the initial
complaint is timely filed and service of the complaint and
summons is completed. Rettig v. Ballard, 2009 Ark.
629, 5, 362 S.W.3d 260, 263. A “nonsuit” includes
an action that has been dismissed without prejudice.
Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001)
(citing Carton v. Missouri Pac. R. Co., 295 Ark.
126, 128, 747 S.W.2d 93, 94 (1988)).
plaintiff filed the initial action within the three-year
statute of limitations. The plaintiff served the defendants
with the summons and complaint. The plaintiff suffered a
nonsuit. The plaintiff, then, timely commenced the present
action under the Arkansas savings statute. Nevertheless, the
defendants contend that the plaintiff is unable to invoke the
savings statute because she did not name Akel Holdings, Inc.,
d/b/a Packs Discount Lumber, Inc., nor Packs Discount Lumber
Co., in her first suit-she, instead, named Packs Discount
Lumber, Inc., only. Because the first action did not name
them expressly, the defendants argue, the action cannot be
tolled as to them.
plaintiff has served the defendants properly. Richard Akel
was served in the first suit. Richard Akel was served in this
suit. Richard Akel is listed as the agent for service of
process for Akel Holdings, Inc., which has a registered
fictitious name of Packs Discount Lumber Co. Document #13-4.
The defendants' motion acknowledges that Akel Holdings
does business as Packs Discount Lumber, Inc. In the first
suit, an attorney made an appearance and filed an answer on
behalf of Packs Discount Lumber, Inc. The initial action may
have named the defendants under a trade name, but that is not
fatal. The change in defendant names simply “corrected
a misnomer and did not substitute a new party.” See
Winters v. Lewis, 260 Ark. 563, 569-70, 542 S.W.2d 746,
the defendants' default-by-technicality argument does not
comport with the nature of the savings statute. The savings
statute is remedial in nature. Linder v. Howard, 296
Ark. 414, 417, 757 S.W.2d 549, 551 (1988). Its purpose is
“to protect those who, although having filed an action
in good faith and in a timely manner, would suffer a complete
loss of relief on the merits because of a procedural
defect.” Id. at 418, 757 S.W.2d at 551. The
Arkansas Supreme Court has interpreted the savings statute
with a “liberal and equitable construction . . . in
order to give litigants a reasonable time to renew their
cause of action when they are compelled to abandon it as a
result of their own act or the court's.”
Forrest City Mach. Works, Inc. v. Lyons, 315 Ark.
173, 177, 866 S.W.2d 372, 374 (1993). This means that
“[a] court's later ruling finding that completed
service [was] invalid does not disinherit the plaintiff from
the benefit of the saving statute.” Id.
Accordingly, even if the plaintiff's initial service
suffered a defect, the remedial nature and purpose of the
savings statute renders it harmless.
the defendants' arguments regarding service under Rule
12(b)(4) and service of process under Rule 12(b)(5), the
Court finds them to be without merit. Other than conclusory
allegations of insufficiency, the defendants have not
provided the Court with an argument on the alleged
insufficiency. At the time that the defendants filed their
motion to dismiss (Document #9), proof of service had not yet
been returned or docketed. As of now, though, the record
reflects that Richard Akel, as registered agent for Akel
Holdings, was served on September 8, 2017. Document #11.
foregoing reasons, the defendants' motion is ...