FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CV-16-1410]
HONORABLE CHRIS CARNAHAN, JUDGE
Elldridge Brooks Partners, by: J.D. Hays, Jr.; and Brian G.
Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for
Wright, Lindsey & Jennings LLP, by: Gregory T. Jones and
Kristen S. Moyers, for appellees.
KENNETH S. HIXSON, JUDGE
Michael Dodd appeals from an order of the trial court
dismissing his complaint against appellees Highway Hauling
Express Corporation et al. The order of dismissal was based
on Dodd's failure to serve the appellees with the summons
and complaint within 120 days after the filing of the
complaint as required by Rule 4(i) of the Arkansas Rules of
Civil Procedure. On appeal, Dodd argues that the trial court
erred in dismissing his complaint because the parties had
agreed to delay service to continue negotiations toward a
settlement, and thus that the appellees were foreclosed from
raising lack of timely service as a defense. We affirm.
December 7, 2013, Michael Dodd and his wife, Tiffany Dodd,
were in a vehicle stopped on the right shoulder of Interstate
40 in Faulkner County. Thereafter, the Dodds' vehicle was
struck by a tractor trailer driven by Bernardin
Rojas-Soriano. On December 2, 2016, just five days before the
expiration of the statute of limitations, the Dodds brought a
personal-injury complaint against Highway Hauling Express,
Mr. Rojas-Soriano, and Belen Transport, among numerous other
named and John Doe defendants.
December 21, 2017, appellees Highway Hauling Express, Mr.
Rojas-Soriano, and Jorge L. Fuentes d/b/a Belen Transport
filed a motion to dismiss the complaint. The appellees'
motion was based on lack of timely service pursuant to
Arkansas Rule of Civil Procedure 4(i), which provides in
(1) If service of the summons and a copy of the complaint is
not made upon 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
motion or upon the court's initiative. If service is by
mail or by commercial delivery company pursuant to
subdivision (d)(8)(A) & (C) 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 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.
Michael Dodd's complaint was filed on December 2, 2016,
the appellees asserted that Dodd had until April 1, 2017, to
perfect service of process under Rule 4(i)(1). The appellees
asserted that Dodd had served none of the defendants and that
Dodd had not obtained an extension of time to complete
service under Rule 4(i)(2). The appellees thus asserted that
Dodd's complaint must be dismissed.
December 26, 2017, Dodd filed a response to the
appellees' motion to dismiss. In his response, Dodd did
not deny that he had failed to serve any of the defendants
within 120 days of the filing of his complaint. Instead, Dodd
alleged that the defendants, particularly Highway Hauling
Express, had agreed to waive service defenses in this case,
particularly the defense of the timeliness of perfecting
service of process. Dodd argued that because the defendants
had waived timely service, the motion to dismiss should be
denied. In Dodd's accompanying brief, he asserted that
after the complaint was filed, Dodd's attorney and the
insurance representative for Highway Hauling Express had
agreed to waive timely service while they continued to engage
in settlement negotiations. Dodd attached an affidavit of his
attorney as evidence of the alleged agreement.
hearing on the appellees' motion to dismiss was held on
April 23, 2018. At the hearing, the appellees disputed
Dodd's claim that there had been an agreement to waive
service requirements. On April 25, 2018, the trial court
entered an order granting the motion to dismiss stating that
"the Court finds that the Motion to Dismiss is well
taken and that the complaint must be dismissed pursuant to
Ark. R. Civ. P. 4(i) and 12(b)(5) for failure to timely serve
any of the defendants."
appeal from the order dismissing his complaint, Dodd argues
that the parties' agreement to delay service to negotiate
a settlement foreclosed the appellees from raising a service
defense. For this reason, Dodd contends that the trial
court's order should be reversed.
law is long settled that service of valid process is
necessary to give a court jurisdiction over a defendant.
Raymond v. Raymond,343 Ark. 480, 36 S.W.3d 733
(2001). Our case law is equally well settled that statutory
service requirements, being in derogation of common-law
rights, must be strictly construed and compliance with them
must be exact. State v. West,2014 Ark. 174. The
same reasoning applies to service requirements imposed by
court rules. Id. Our service rules place "an
extremely heavy burden on the plaintiff to
demonstrate that compliance with those rules has been
had." Williams v. Stant USA Corp., 2015
Ark.App. 180, at 3, 458 S.W.3d 755, 758 (emphasis in
original). Pursuant to Rule 4(i) of the Arkansas Rules of