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Rule 4. 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.
[Official Form of Summons
HTML, WP5.1]
(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
administrator 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 ofthe
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.
The order granting any such extension, however, must be entered
within 30 days after the motion to extend is filed, or by the end
of the 120-day period, whichever date is later. 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.
Addition
to Reporter's Notes, 1999 Amendment: Subdivision (c)(2) has
been amended by deleting the word "a" before the word "summons."
This amendment is intended to make plain that private process
servers may be appointed by standing order as well as on a
case-by-case basis. In addition, subdivision (e)(3) has been
amended to provide that service by mail outside the state in
accordance with the requirements of subdivision (d)(8), which
governs service by mail inside the state. This change makes the two
provisions
consistent.
Addition
to Reporter's Notes, 2001 Amendment: Subdivision (a) has been
revised to provide that service may be made only by a person
"authorized by this rule to serve process." Previously, the rule
allowed anyone "authorized by law" to serve process and thus
incorporated statutes permitting or requiring certain persons to
make service. See, e.g, Nelson v. Wakefield, 282 Ark. 285,
668 S.W.2d 29 (1984) (service on sheriff by deputy held improper in
light of Ark. Code Ann. §§ 16-58-112, which provides that
"in an action wherein the sheriff is a party or is interested,
[process] shall be directed to the coroner or, if he is interested
to some
constable").
Applying
Nelson to other statutes could defeat the purpose of
subdivision (c) of the rule, which limits service to a particular
person, including a sheriff, a deputy, or a person at least 18
years of age appointed by the court. For example, Ark. Code Ann.
§§ 16-58-107(2) authorizes service "[b]y any person
appointed by the officer to whom the summons is directed." This
provision would allow a sheriff, deputy sheriff, or a person
appointed by the court to designate someone else to serve process,
a result contrary to the purpose of the subdivision (c),
i.e., to give the court control over private process
servers. Also, paragraph (3) of the statute allows service "[b]y
any person not a party to the action, in all actions arising on
contract for the recovery of money only." In such cases, no court
appointment would be necessary, and even someone under 18 could
make service so long as he or she were not a party. Other statutes
are not as troublesome as Section 16-58-107 but are not necessary
in light of Rule 4. See Ark. Code Ann.
§§§§ 16-58-108, 16-58-109, 16-58-113,
16-58-118, 16-58-119. These statutes are deemed superseded, as are
Sections 16-58-107 and
16-58-112.
New language in subdivision (c)(1) treats the problem that Section
16-58-112 was meant to address, i.e., service by a sheriff
or deputy when the sheriff is a party. In that situation, neither
the sheriff nor a deputy may serve process. Thus, service must be
accomplished pursuant to one of the other provisions of subdivision
(c), e.g., by someone appointed by the court or by
mail.
Addition to Reporter's Notes, 2002 Amendment:
Subdivision (c)(4) has been amended to refer to service by a
commercial company, an option authorized by new paragraph (C) of
subdivision (d)(8) and discussed below. Over the years, lawyers
have questioned the efficacy of service by mail under paragraph (A)
of subdivision (d)(8), in part because the postal service does not
always follow its own rules regarding restricted delivery
mail.
Subdivision (d) has been revised to provide that
service shall be made as provided in that subdivision or "upon any
person designated by statute to receive service." This provision
incorporates statutes which, for example, provide for service on
the registered agent of a corporation. E.g., Ark. Code Ann.
§§ 4-26-503, 4-27-1510. It was deemed advisable in light
of case law suggesting that Rule 4 is exclusive as to the
recipients of process, despite language in subdivisions (d)(1)
& (5) permitting service on an "agent authorized . . . by law
to receive service of summons." See, e.g., May v. Bob Hankins
Distributing Co., 301 Ark. 494, 785 S.W.2d 23
(1990).
Subdivision (d)(4) has been amended to require
the plaintiff not only to serve the superintendent of the
correctional facility housing the defendant (as well as the
defendant's spouse, if any, unless the court orders otherwise), but
also to send a copy of the summons and complaint, marked as "legal
mail," to the defendant by first class mail. This additional
safeguard is similar to that found in substituted service statutes.
E.g., Ark. Code Ann. §§ 16-58-120(b)(2)(B) (in
addition to serving Secretary of State, plaintiff must mail copy of
summons and complaint to defendant at last known
address).
New paragraph (C) of subdivision (d)(8)
permits service by "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." Service of papers by
commercial delivery companies under Rule 5 has been allowed for
more than a decade with no apparent problem. See Rule
5(b)(2) & Addition to Reporter's Notes, 1989 Amendment. Rule
5(b)(2) has been amended to require court approval of the
commercial delivery company, a requirement imposed by new paragraph
(C) of this
rule.
Paragraph (C) is more restrictive
than Ark. Code Ann. §§ 1-2-122(b), which allows service
by "an alternative mail carrier." The statute has thus been
superseded with respect to service of process. Paragraph (C)
contains additional safeguards similar to those found in paragraph
(A) for service by mail and requires, as does subdivision (c)(2)
with respect to service by a private person, that the commercial
delivery company be approved by the circuit court of the county
where the action is filed or where service is to be made. This
approval may be in the form of a standing order or may be made on a
case-by-case basis, as under subdivision (c)(2). See
Addition to Reporter's Notes to Rule 4, 1999
Amendment.
The rule has also been amended
to provide uniform requirements for warning orders. Those
requirements are contained in revised subdivision (f), which deals
with both situations in which service by warning order is
permissible, i.e., "when 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."
Former subdivision (j) has been deleted and former subdivision (k)
redesignated as subdivision
(j).
Addition to Reporter's
Notes, 2003 Amendment: Subdivision (d)(4) has been revised by
replacing the phrase "confined in a state or federal penitentiary
or correctional facility" with "incarcerated in any jail,
penitentiary, or other correctional facility in this state." This
change makes the terminology consistent with that used in Rule
12(a), as amended in
2003.
Addition to
Reporter's Notes, 2004 Amendment: Subdivision (d)(8)(A) of the
rule has been divided into two paragraphs. In a change that
reflects settled case law, paragraph (A)(i) has been rewritten to
state expressly that the agent of the addressee "must be authorized
in accordance with U.S. Postal Service regulations." See Green
v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989). For the
applicable postal service regulations, see Domestic Mail Manual
S916.
More
importantly, paragraph (A)(i) has been amended to establish less
onerous requirements when service is made on the registered agent
of a corporation or other organization. In that situation, the new
last sentence provides that service may be made by certified mail,
return receipt requested. Because delivery need not be restricted,
there is no requirement that the addressee be a natural person or
that the agent of the addressee be authorized in accordance with
postal service regulations. See generally Domestic Mail
Manual S912 (certified mail), S915 (return
receipt).
Addition
to Reporter's Notes, 2006 Amendment: Subdivision (d)(8)(A) of
the rule has been divided into two paragraphs. In a change that
reflects settled case law, paragraph (A)(i) has been rewritten to
state expressly that the agent of the addressee "must be authorized
in accordance with U.S. Postal Service regulations." See Green
v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989). For the
applicable postal service regulations, see Domestic Mail Manual
S916.
More
importantly, paragraph (A)(i) has been amended to establish less
onerous requirements when service is made on the registered agent
of a corporation or other organization. In that situation, the new
last sentence provides that service may be made by certified mail,
return receipt requested. Because delivery need not be restricted,
there is no requirement that the addressee be a natural person or
that the agent of the addressee be authorized in accordance with
postal service regulations. See generally Domestic Mail
Manual S912 (certified mail), S915 (return
receipt).
Addition to Reporter's Notes, 2006 Amendment: Rule
4(d)(4) has been amended to delete the untoward reference to the
"keeper" of a jail, penitentiary, or other correctional facility.
The term "administrator" has been substituted for
"superintendent."
Rule 4(i), which governs the time limit for service,
has been amended to set a reasonable deadline for getting an order
entered on a motion to extend time for service. In Edwards v.
Sazabo Foods, 317 Ark. 369, 877 S.W.2d 932 (1994), the supreme
court rejected an effort to require that both the motion for
extension of time to serve and the order granting that motion must
be filed within the 120-day period. This amendment leaves
Edwards intact. To encourage prompt service, and discourage
filing a motion to extend but not securing an order promptly, the
amendment sets a deadline for the entry of that order: thirty days
after the motion is filed, or the end of the 120-day period,
whichever date is later. The alternative deadlines eliminate the
possibility that an early motion for extension will inadvertently
reduce the time allowed for extending the time for
service.
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