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In re Recommendations of Committee on Civil Practice

Supreme Court of Arkansas

June 21, 2018

IN RE RECOMMENDATIONS OF THE COMMITTEE ON CIVIL PRACTICE; ARK. RULES OF CIVIL PROCEDURE 4 & 12; ARKANSAS SUPREME COURT ADMIN. ORDER NO. 18

          PER CURIAM

         The Arkansas Supreme Court Committee on Civil Practice submitted its proposals and recommendations for changes in rules of procedure affecting civil practice. They were published for comment. In re Recommendation of the Committee on Civil Practice. 2016 Ark.29 (per curiam). The proposals relate to summons and related rules: Ark. R. Civ. P. 4 and Form of Summons, Ark. R. Civ. P. 12, and Administrative Order No. 18.

         Comments have been reviewed by the committee and the court. The court thanks everyone who took the time to review the rules and submit comments. Revisions were made, most notably: (1) in the deletion of service on a receptionist or employee apparently in charge [proposed (f)(1)(D)] and service on a secretary or assistant in (f)(12-16); (2) in not increasing the time period to post or the number of postings for warning orders (g)(3); (3) in not requiring clerks to post a list of approved commercial delivery companies (g)(2)(A); and (4) in revising the substantial compliance provision in paragraph (k).

         We adopt the amendments and republish the rules as set out below. These amendments shall be effective January 1, 2019.

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

         (a) Issuance of Summons. Immediately on the filing of the complaint, the clerk shall issue a summons to the plaintiff or the plaintiffs attorney, who shall deliver it 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, dated and signed by the clerk or a deputy clerk, and directed from the State of Arkansas to the defendant to be served. It shall contain:

(1) in its caption, the names of the 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) the name and address of the plaintiffs attorney, if any, otherwise the address of the plaintiff;
(4) the time within which these rules require that the defendant to be served must appear, file a responsive pleading or motion, and defend; and
(5) notice that the defendant's failure to appear, respond, and defend within the time allowed may result in entry of judgment by default against the defendant 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 plaintiffs attorney shall furnish the person making service with as many copies as are necessary.

         (2) The following persons are authorized to serve process:

(A) the 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 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; and
(D) in the event of service by mail or commercial delivery company pursuant to subdivision (g)(1) and (2) of this rule, 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)Personal Service Inside the State. Service of process shall be made inside the state as follows:

         (1) Natural Persons. 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 process to the defendant personally, or if he or she refuses to receive it after the process server makes his or her purpose clear, by leaving the papers in close proximity to the defendant;
(B)leaving the process with any member of the defendant's family at least 18 years of age at a place where the defendant resides; or
(C)delivering the process to an agent authorized by appointment or by law to receive service of summons on the defendant's behalf.

         (2) Minors. 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. 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. Service on a person incarcerated in any jail, penitentiary, or other correctional facility in this state shall be on the administrator of the institution, who shall promptly deliver the process to the incarcerated person. A copy of the process shall also be sent to the incarcerated person by first-class mail and marked as "legal mail" and, unless the court otherwise directs, to his or her spouse, if any.

         (5) Corporations. 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 an applicable 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 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 an applicable 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 an applicable 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 an applicable 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) The United States. Service on the United States or any of its agencies, officers, or employees shall be as authorized by the Federal Rules of Civil Procedure or by other federal law.

          (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 other person designated by appointment or by an applicable 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.

         (14) Counties. Service on a county shall be on the county judge, county administrator, county clerk, or circuit clerk if no county clerk has been elected.

         (15)School Districts. Service on a school district shall be on the president of the board of directors, ...


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