FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CV-16-1410],
HONORABLE CHRIS CARNAHAN, JUDGE
Brooks Partners, by: J.D. Hays, Jr.; and Brian G. Brooks,
Attorney at Law, PLLC, by: Brian G. Brooks, for appellants.
Lindsey & Jennings LLP, Little Rock, by: Gregory T. Jones and
Kristen S. Moyers, for appellees.
S. HIXSON, Judge
Appellant 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.
Because 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
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 ...