ARKANSAS RULES OF CIVIL RULES OF PROCEDURE
Introduction
In the state of Arkansas, no license
is required. Service of a summons shall
be made by one of the following: a 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;
any individual eighteen years of age or older appointed 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; any individual authorized to serve
process under the law of the place outside this state where service is made; or
in the event of service by mail or commercial delivery company pursuant to
subdivision (d)(8) of this rule, by the plaintiff or an attorney of record for
the plaintiff. If sub-service occurs,
must be on a co tenant who is fourteen years or older.
Arkansas requires all served affidavits to be notarized,
with the exception being, if service is done by a state official.
Civil Rules of Procedure
Commencement of action
Summons
Service and filing of pleadings and other papers
Time
Commencement of action
"Clerk" defined
(a) A civil action is commenced by
filing a complaint with the clerk of the court who shall note thereon the date
and precise time of filing.
(b) The term "clerk of the
court" as used in these Rules means the circuit clerk and, with respect to
probate matters, any county clerk who serves as ex officio clerk of the probate
division of the circuit court pursuant to Ark. Code Ann. § 14-14-502(b)(2)(B).
In counties where the county clerk serves as the ex officio clerk of any
division of the circuit court, the filing requirement shall be satisfied when
the complaint is filed with either the circuit clerk or the county clerk.
Summons
(a) Issuance. Upon the filing of the
complaint, the clerk shall forthwith issue a summons and cause it to be
delivered for service to a person authorized by this rule to serve process.
(b) Form. The summons shall be styled
in the name of the court and shall be dated and signed by the clerk; be under
the seal of the court; contain the names of the parties; be directed to the
defendant; state the name and address of the plaintiff's attorney, if any,
otherwise the address of the plaintiff; and the time within which these rules
require the defendant to appear, file a pleading, and defend and shall notify
him that in case of his failure to do so, judgment by default may be entered
against him for the relief demanded in the complaint.
(c) By Whom Served. Service of summons
shall be made by (1) a 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; (2) any
person not less than eighteen years of age appointed 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; (3) any person authorized to serve
process under the law of the place outside this state where service is made; or
(4) in the event of service by mail or commercial delivery company pursuant to
subdivision (d)(8) of this rule, by the plaintiff or an attorney of record for
the plaintiff.
(d) Personal Service Inside the State.
A copy of the summons and complaint shall be served together. The plaintiff
shall furnish the person making service with such copies as are necessary.
Service shall be made upon any person designated by statute to receive service
or as follows:
(1) Upon an individual, other than an
infant by delivering a copy of the summons and complaint to him personally, or
if he refuses to receive it, by offering a copy thereof to him, or by leaving a
copy thereof at his dwelling house or usual place of abode with some person
residing therein who is at least 14 years of age, or by delivering a copy
thereof to an agent authorized by appointment or by law to receive service of
summons.
(2) When the defendant is under the
age of 14 years, service must be upon a parent or guardian having the care and
control of the infant, or upon any other person having the care and control of
the infant and with whom the infant lives. When the infant is at least 14 years
of age, service shall be upon him.
(3) Where the defendant is a person
for whom a plenary, limited or temporary guardian has been appointed, the
service must be upon the individual and the guardian. If the person for whom
the guardian has been appointed is confined in a public or private institution
for the treatment of the mentally ill, service shall be upon the superintendent
or administrator of such institution and upon the guardian.
(4) Where the defendant is
incarcerated in any jail, penitentiary, or other correctional facility in this
state, service must be upon the keeper or superintendent of the institution,
who shall deliver a copy of the summons and complaint to the defendant. A copy
of the summons and complaint shall also be sent to the defendant by first class
mail and marked as "legal mail" and, unless the court otherwise
directs, to the defendant's spouse, if any.
(5) Upon a domestic or foreign
corporation or upon a partnership, limited liability company, or any
unincorporated association subject to suit under a common name, by delivering a
copy of the summons and complaint to an officer, partner other than a limited
partner, managing or general agent, or any agent authorized by appointment or
by law to receive service of summons.
(6) Upon the United States or any
officer or agency thereof, by service upon any person and in such manner as is
authorized by the Federal Rules of Civil Procedure or by other federal law.
(7) Upon a state or municipal
corporation or other governmental organization or agency thereof, subject to
suit, by delivering a copy of the summons and complaint to the chief executive
officer thereof, or other person designated by appointment or by statute to
receive such service, or upon the Attorney General of the state if such service
is accompanied by an affidavit of a party or his attorney that such officer or
designated person is unknown or cannot be located.
(8)(A)(i) Service of a summons and
complaint upon a defendant of any class referred to in paragraphs (1) through
(5), and (7) of this subdivision (d) may be made by the plaintiff or an
attorney of record for the plaintiff by any form of mail addressed to the
person to be served with a return receipt requested and delivery restricted to
the addressee or the agent of the addressee. The addressee must be a natural
person specified by name, and the agent of the addressee must be authorized in
accordance with U.S. Postal Service regulations. However, service on the
registered agent of a corporation or other organization may be made by
certified mail with a return receipt requested.
(ii) Service pursuant to this
paragraph (A) shall not be the basis for the entry of a default or judgment by
default unless the record contains a return receipt signed by the addressee or
the agent of the addressee or a returned envelope, postal document or affidavit
by a postal employee reciting or showing refusal of the process by the
addressee. If delivery of mailed process is refused, the plaintiff or attorney
making such service, promptly upon receipt of notice of such refusal, shall
mail to the defendant by first class mail a copy of the summons and complaint
and a notice that despite such refusal the case will proceed and that judgment
by default may be rendered against him unless he appears to defend the suit.
Any such default or judgment by default may be set aside pursuant to Rule 55(c)
if the addressee demonstrates to the court that the return receipt was signed
or delivery was refused by someone other than the addressee or the agent of the
addressee.
(B) Alternatively, service of a
summons and complaint upon a defendant of any class referred to in paragraphs
(1)-(5) and (7) of this subdivision of this rule may be made by the plaintiff
by mailing a copy of the summons and the complaint by first-class mail, postage
prepaid, to the person to be served, together with two copies of a notice and
acknowledgement conforming substantially to a form adopted by the Supreme Court
and a return envelope, postage prepaid, addressed to the sender. If no
acknowledgement of service is received by the sender within twenty days after
the date of mailing, service of such summons and complaint shall be made
pursuant to subdivision (c)(1)-(3) of this rule in the manner prescribed by
subdivisions (d)(1)-(5) and (d)(7). Unless good cause is shown for not doing so
the court shall order the payment of the costs of personal service by the
person served if such person does not complete and return within twenty days
after mailing, the notice and acknowledgement of receipt of summons. The notice
and acknowledgement of receipt of summons and complaint shall be executed under
oath or affirmation.
(C) Service of a summons and complaint
upon a defendant of any class referred to in paragraphs (1) through (5) and (7)
of this subdivision may also be made by the plaintiff or an attorney of record
for the plaintiff using a commercial delivery company that (i) maintains
permanent records of actual delivery, and (ii) has been approved by the circuit
court in which the action is filed or in the county where service is to be
made. The summons and complaint must be delivered to the defendant or an agent
authorized to receive service of process on behalf of the defendant. The
signature of the defendant or agent must be obtained. Service pursuant to this
paragraph shall not be the basis for a judgment by default unless the record
reflects actual delivery on and the signature of the defendant or agent, or an affidavit
by an employee of an approved commercial delivery company reciting or showing
refusal of the process by the defendant or agent. If delivery of process is
refused, the plaintiff or attorney making such service, promptly upon receipt
of notice of such refusal, shall mail to the defendant by first class mail a
copy of the summons and complaint and a notice that despite such refusal the
case will proceed and that judgment by default may be rendered against the
defendant unless he or she appears to defend the suit. A judgment by default
may be set aside pursuant to Rule 55(c) if the court finds that someone other
than the defendant or agent signed the receipt or refused the delivery or that
the commercial delivery company had not been approved as required by this
subdivision.
(e) Other Service. Whenever the law of
this state authorizes service outside this state, the service, when reasonably
calculated to give actual notice, may be made:
(1) By personal delivery in the same
manner prescribed for service within this state;
(2) In any manner prescribed by the
law of the place in which service is made in that place in an action in any of
its courts of general jurisdiction;
(3) By mail as provided in subdivision
(d)(8) of this rule;
(4) As directed by a foreign authority
in response to a letter rogatory or pursuant to the provisions of any treaty or
convention pertaining to the service of a document in a foreign country;
(5) As directed by the court.
(f) Service by Warning Order.
(1) If it appears by the affidavit of
a party seeking judgment or his or her attorney that, after diligent inquiry,
the identity or whereabouts of a defendant remains unknown, or if a party seeks
a judgment that affects or may affect the rights of persons who are not and who
need not be subject personally to the jurisdiction of the court, service shall
be by warning order issued by the clerk. This subdivision shall not apply to
actions against unknown tortfeasors.
(2) The warning order shall state the
caption of the pleadings; include, if applicable, a description of the property
or other res to be affected by the judgment; and warn the defendant or
interested person to appear within 30 days from the date of first publication
of the warning order or face entry of judgment by default or be otherwise
barred from asserting his or her interest. The party seeking judgment shall
cause the warning order to be published weekly for two consecutive weeks in a
newspaper having general circulation in the county where the action is filed
and to be mailed, with a copy of the complaint, to the defendant or interested
person at his or her last known address by any form of mail with delivery
restricted to the addressee or the agent of the addressee.
(3) If the party seeking judgment has
been granted leave to proceed as an indigent without prepayment of costs, the
clerk shall conspicuously post the warning order for a continuous period of 30
days at the courthouse or courthouses of the county wherein the action is
filed. The party seeking judgment shall cause the warning order to be mailed,
with a copy of the complaint, to the defendant or interested person as provided
in paragraph (2). Newspaper publication of the warning order is not required.
(4) No judgment by default shall be taken
pursuant to this subdivision unless the party seeking the judgment or his or
her attorney has filed with the court an affidavit stating that 30 days have
elapsed since the warning order was first published as provided in paragraph
(2) or posted at the courthouse pursuant to paragraph (3). If a defendant or
other interested person is known to the party seeking judgment or to his or her
attorney, the affidavit shall also state that 30 days have elapsed since a
letter enclosing a copy of the warning order and the complaint was mailed to
the defendant or other interested person as provided in this subdivision.
(g) Proof of Service. The person
effecting service shall make proof thereof to the clerk within the time during
which the person served must respond to the summons. If service is made by a
sheriff or his deputy, proof may be made by executing a certificate of service
or return contained in the same document as the summons. If service is made by
a person other than a sheriff or his deputy, the person shall make affidavit
thereof, and if service has been by mail or commercial delivery company, shall
attach to the affidavit a return receipt, envelope, affidavit or other writing
required by Rule 4(d)(8). Proof of service in a foreign country, if effected pursuant
to the provisions of a treaty or convention as provided in Rule 4(e)(4), shall
be made in accordance with the applicable treaty or convention.
(h) Amendment. At any time in its
discretion and upon such terms as it deems just, the court may allow any
summons or proof of service thereof 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.
(i) Time Limit for Service. If service
of the summons is not made upon a defendant within 120 days after the filing of
the complaint, the action shall be dismissed as to that defendant without
prejudice upon motion or upon the court's initiative. If a motion to extend is
made within 120 days of the filing of the suit, the time for service may be
extended by the court upon a showing of good cause. If service is made by mail
pursuant to this rule, service shall be deemed to have been made for the
purpose of this provision as of the date on which the process was accepted or refused.
This paragraph shall not apply to service in a foreign country pursuant to Rule
4(e) or to complaints filed against unknown tortfeasors.
(j) Service of Other Writs and Papers.
Whenever any rule or statute requires service upon any person, firm, corporation
or other entity of notices, writs, or papers other than a summons and
complaint, including without limitation writs of garnishment, such notices,
writs or papers may be served in the manner prescribed in this rule for service
of a summons and complaint. Provided, however, any writ, notice or paper
requiring direct seizure of property, such as a writ of assistance, writ of
execution, or order of delivery shall be made as otherwise provided by law.
Service and filing of pleadings and other
papers
(a) Service: When Required. Except as
otherwise provided in these rules, every pleading and every other paper,
including all written communications with the court, filed subsequent to the
complaint, except one which may be heard ex parte, shall be served upon each of
the parties, unless the court orders otherwise because of numerous parties. No
service need be made upon parties in default for failure to appear, except that
pleadings asserting new or additional claims for relief against them shall be
served in the manner provided for service of summons in Rule 4. Any pleading
asserting new or additional claims for relief against any party who has
appeared shall be served in accordance with subdivision (b) of this rule.
In an action begun by seizure of
property, in which no person need be or is named as defendant, any service
required to be made prior to the filing of an answer, claim or appearance shall
be made upon the person having custody or possession of the property at the
time of its seizure.
(b) Service: How Made.
(1) Whenever under this rule or any
statute service is required or permitted to be made upon a party represented by
an attorney, the service shall be upon the attorney, except that service shall
be upon the party if the court so orders or the action is one in which a final
judgment has been entered and the court has continuing jurisdiction.
(2) Except as provided in paragraph
(3) of this subdivision, service upon the attorney or upon the party shall be
made by delivering a copy to him or by sending it to him by regular mail or
commercial delivery company at his last known address or, if no address is
known, by leaving it with the clerk of the court. Delivery of a copy for
purposes of this paragraph means handing it to the attorney or to the party; by
leaving it at his office with his clerk or other person in charge thereof; or,
if the office is closed or the person has no office, leaving it at his dwelling
house or usual place of abode with some person residing therein who is at least
14 years of age. Service by mail is presumptively complete upon mailing, and
service by commercial delivery company is presumptively complete upon
depositing the papers with the company. When service is permitted upon an
attorney, such service may be effected by electronic transmission, provided
that the attorney being served has facilities within his office to receive and
reproduce verbatim electronic transmissions. Service by a commercial delivery
company shall not be valid unless the company: (A) maintains permanent records
of actual delivery, and (B) has been approved by the circuit court in which the
action is filed or in the county where service is to be made.
(3) If a final judgment or decree has
been entered and the court has continuing jurisdiction, service upon a party by
mail or commercial delivery company shall comply with the requirements of Rule
4(d)(8)(A) and (C), respectively.
(c) Filing.
(1) All papers after the complaint
required to be served upon a party or his attorney shall be filed with the
clerk of the court either before service or within a reasonable time
thereafter. The clerk shall note the date and time of filing thereon. However,
proposed findings of fact, proposed conclusions of law, trial briefs, proposed
jury instructions, and responses thereto may but need not be filed unless
ordered by the court. Depositions, interrogatories, requests for production or
inspection, and answers and responses thereto shall not be filed unless ordered
by the court. When such discovery documents are relevant to a motion, they or
the relevant portions thereof shall be submitted with the motion and attached
as an exhibit unless such documents have already been filed. The clerk shall
not refuse to accept for filing any paper presented for that purpose solely
because it is not presented in the proper form. In counties where the county
clerk serves as the ex officio clerk of any division of the circuit court, the
filing requirement for any pleading, paper, order, judgment, decree, or notice
of appeal shall be satisfied when the document is filed with either the circuit
clerk or the county clerk.
(2) If the clerk's office has a
facsimile machine, the clerk shall accept facsimile transmissions of any paper
filed under this rule and may charge a fee of $1.00 per page. Any signature
appearing on a facsimile copy shall be presumed authentic until proven
otherwise. The clerk shall stamp or otherwise mark a facsimile copy as filed on
the date and time that it is received on the clerk's facsimile machine during
the regular hours of the clerk's office or, if received outside those hours, at
the time the office opens on the next business day.
(d) Filing With the Judge. The judge
may permit papers or pleadings to be filed with him, in which event he shall
note thereon the filing date and forthwith transmit them to the office of the
clerk. If the judge permits filing by facsimile transmission, the provisions of
subdivision (c)(2) of this rule shall apply.
(e) Proof of Service. Every pleading,
paper or other document required by this rule to be served upon a party or his
attorney, shall contain a statement by the party or attorney filing same that a
copy thereof has been served in accordance with this rule, stating therein the
date and method of service and, if by mail, the name and address of each person
served.
Time
a) Computation. In computing any
period of time prescribed or allowed by these rules, by order of the Court or
by any applicable statute, the day of the act, event or default from which the
designated period of time begins to run shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday, Sunday,
legal holiday, or other day when the clerk's office is closed, in which event
the period runs until the end of the next day that the clerk's office is open.
When the period of time prescribed or allowed is less than fourteen (14) days,
intermediate Saturdays, Sundays, or legal holidays shall be excluded in the
computation. As used in this rule and Rule 77(c), "legal holiday" means
those days designated as a holiday by the President or Congress of the United
States or designated by the laws of this State.
(b) Enlargement. When by these rules
or by a notice given thereunder or by order of the court an act is required or
allowed to be done at or within a specified time, the court for cause shown may
at any time in its discretion (1) with or without motion or notice, order the
period enlarged if request therefor is made before the expiration of the period
originally prescribed or as extended by a previous order, or (2) upon motion
made after the expiration of the specified period permit the act to be done
where the failure to act was the result of mistake, inadvertence, surprise,
excusable neglect, or other just cause, but it may not extend the time for
taking an action under Rules 4(i), 50(b), 52(b), 59(b), (d) and (e), and 60(b),
except to the extent and under the conditions stated in them.
(c) For Motions, Responses, and Replies.
A written motion, other than one which may be heard ex parte, and notice of the
hearing thereof shall be served not later than 20 days before the time
specified for the hearing. Any party opposing a motion shall serve a response
within 10 days after service of the motion. The movant shall then have 5 days
after service of the response within which to serve a reply. The time periods
set forth in this subdivision may be modified by order of the court and do not
apply when a different period is fixed by these rules, including Rules 56(c)
and 59(d).
(d) Additional Time After Service by
Mail or Commercial Delivery Company. Whenever a party has the right or is
required to do some act or take some proceedings within a prescribed period
after the service of a notice or other paper upon him and the notice or paper
is served upon him by mail or commercial delivery company, three (3) days shall
be added to the prescribed period. Provided, however, that this subdivision
shall not extend the time in which the defendant must file an answer or
preanswer motion when service of the summons and complaint is by mail or
commercial delivery company in accordance with Rule 4.
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For contemporary process serving and civil statutes, visit the official
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