II. Commencement of Action; Service of Process, Pleadings, Motions, and Orders

Rule 3. 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.

History. Amended May 16, 1983; amended May 24, 2001, effective July 1, 2001; amended March 13, 2003; amended February 10, 2005

Publisher's Notes. The Per Curiam of May 24, 2001, provided that this Rule contain a transitional provision: "Transitional Provision. For the period July 1, 2001 through December 31, 2001, probate matters shall continue to be filed with the same clerk where such matters were filed immediately prior to July 1, 2001."

Reporter's Notes to Rule 3: - 1. This Rule changes Arkansas law. The statute, Ark. Stat. Ann. 27-301 (Repl. 1962), which is superseded by this rule provided, in part, that an action was commenced by filing a complaint and placing it and a summons in the hands of the sheriff of the proper County. Under this Rule, an action will commence without regard to receipt by the process server, subject only to the requirement that service be completed within 60 days from the filing of the complaint, unless the time for service has been extended by the Court.

2. This rule will do away with uncertainty in "race to venue" and statute of limitation cases as to where or when the action was first commenced. It will also do away with the need to decide whether the Complaint and Summons have been placed in the hands of the sheriff with reasonable expectations of service or whether the Complainant has acted in good faith in trying to effect service. See Williams v. Edmondson and Ward, 257 Ark. 837, 250 S.W.2d 260 (1975). Instead, where service is in issue under the 60 days or extension proviso, actual service will be the standard. If actual service is not made within 60 days, the Court may extend the time for service, thus protecting the plaintiff against the running of the statute where there is good cause to do so.

3. FRCP 3 contains no proviso regarding the obtaining of service of process within a specified period after the complaint is filed. Federal courts are thus plagued with the question whether filing a complaint tolls the statute of limitations where there is an allegation of lack of diligence in obtaining service. See Wright and Miller, Federal Practice and Procedure, 1056 (1969). This rule will effectively cause the decision whether delay in service is justified to be made within 60 days of filing rather than at some indefinite later time.

4. The term "proper court" means one which has jurisdiction of the subject matter and parties described in the complaint and in which venue is properly laid.

Addition to Reporter's Notes, 1983 Amendment: - The words of the first sentence of the rule were changed from "precise date and time of filing" to "date and precise time of filing."

A second sentence of the rule had provided that an action would not be deemed commenced unless service were obtained within 60 days of filing, with provisions for extension of the time limit. That sentence was deleted, and the matter of the time within which service must be obtained is addressed in Rule 4(i).

Addition to Reporter's Notes, 2001 Amendment: - The word "proper," which modified "court" in the original version of the rule, has been deleted. Also, the one sentence that comprised the rule has been designated as subdivision (a) and a new subdivision (b) added to define the term "clerk of the court."

As the original Reporter's Notes accompanying this rule make plain, the "proper court" was one with jurisdiction over the subject matter. When the rule was adopted in 1978, that jurisdiction was divided among three courts - circuit, chancery, and probate. Under Constitutional Amendment 80, however, the circuit court is the single trial court of general jurisdiction.

The original Reporter's Notes to this rule also state that the term "proper court" referred to the court "in which venue is properly laid." This issue has since been addressed in Rule 12(h)(3), which provides that in cases where venue is improper, the court may either "dismiss the action or direct that it be transferred to a county where venue would be proper." In the event of a transfer pursuant to this provision, the action remains "commenced" as of the date of the original filing. If the action is dismissed, it was nonetheless commenced for statute of limitations purposes and may be refiled within one year under the savings statute, Ark. Code Ann. 16-56-126. See Forrest City Machine Works v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993) (savings statute is applicable when action is dismissed for insufficient service of process).

Subdivision (b) has been added in light of Administrative Order No. 14 of the Supreme Court and Act 997 of 2001. The order, adopted pursuant to Section 6(B) of Amendment 80, requires the judges of each judicial circuit to establish the following divisions: criminal, civil, juvenile, probate, and domestic relations divisions. Act 997, which amended Ark. Code Ann. 14-14-502(a)(2)(B), provides that in those counties in which county clerks have been elected, the county clerk "may be ex officio clerk of the probate division of circuit court, if such division exists, of the county until otherwise provided by the General Assembly." Consequently, in some counties probate proceedings will be initiated by a filing in the county clerk's office, and in such cases the county clerk will be the "clerk of the court" for other purposes under these Rules.

Most probate matters are "special proceedings" within the meaning of Rule 81(a) and thus governed by statutory procedures, if any, rather than by these Rules. See, e.g., In re Adoption of Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997) (adoption); Screeton v. Crumpler, 273 Ark. 167, 617 S.W.2d 847 (1981) (probate of will). However, some probate matters are civil actions. See, e.g., Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1974) (proceeding by which a claim against the estate of a deceased person is reduced to judgment is a civil action). The status of a particular probate matter as a special proceeding or a civil action has no bearing on where the papers are to be filed.

Filing in the wrong clerk's office is not fatal, and the action is commenced as of the filing date. Cf. Linder v. Howard, 296 Ark. 414, 757 S.W.2d 562 (1995) (the timely filing of the complaint in chancery court tolled the statute of limitations even though the case should have been brought in circuit court and was transferred there after statute had run).

Addition to Reporter's Notes, 2003 Amendment: - The statutory reference in subdivision (b) has been corrected.

Addition to Reporter's Notes, 2005 Amendment: - Rule 3(b) has been amended. As the Rule states, in some counties the county clerk serves as the ex officio clerk of the probate division of the circuit court. Uncertainties have arisen in these circumstances about the effect of filing a pleading or paper with the wrong clerk. A sentence has been added to subsection (b) to make plain that, in these counties, a party complies with Rule 3(a) when the complaint is file marked by either the circuit clerk or the county clerk. This new provision accords with pre-Amendment 80 cases. Cf., Linder v. Howard, 296 Ark. 414, 415-18, 757 S.W.2d 549, 550-51 (1995) (the timely filing of a complaint in chancery court tolled the statute of limitations even through the case should have been brought in circuit court and was transferred there after the statute had run.). Similar clarifying language has been added to Rule of Civil Procedure 5(c)(1) (filing papers in general), Administrative Order Number 2 (clerk's docket and filing), and Rule of Appellate Procedure - Civil 3(b) (filing a notice of appeal).

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.
    (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 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; (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 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. 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.

History. Amended February 1, 1982; amended May 16, 1983; amended June 9, 1984, effective September 1, 1984; amended July 1, 1986, effective September 15, 1986; amended November 21, 1988, effective January 1, 1989; amended November 20, 1989, effective January 1, 1990; amended November 11, 1991, effective January 1, 1992; amended November 8, 1993, effective January 1, 1994; amended November 18, 1996, effective March 1, 1997; amended January 22, 1998; amended January 28, 1999; amended February 1, 2001; amended January 24, 2002; amended March 13, 2003; amended January 22, 2004; amended May 25, 2006; Amended January 1, 2008.

Publisher's Notes. The 2002 amendments to Ark. R. Civ. P. 4(d)(8)(C) and Ark. R. Civ. P. 5 are deemed to supersede Ark. Code Ann. 1-2-122(b) with respect to the service of process and other papers.

Reporter's Notes to Rule 4: - 1. Recognizing necessary distinctions between state and federal practice, this Rule is designed to be generally consistent with FRCP 4.

2. Whereas FRCP 4 places the onus of delivering process to the server upon the Clerk, this Rule permits the Clerk to "cause it to be delivered," thus contemplating placing the summons with the plaintiff's attorney who then will see to it that it is served by an appropriate official. The second sentence of Rule 4(a) will permit issuance of summons against a defendant named after the original complaint is filed or alias process. See Wright and Miller, Federal Practice and Procedure, 1085 (1969).

3. Rule 4(b) is generally the same as FRCP 4(b). It adds to the requirements contained in FRCP 4(b) the requirement that the summons be dated. The latter is a carryover from superseded Ark. Stat. Ann. 27-306 (Repl. 1962).

4. Rule 4(c) is essentially the same as FRCP 4(c). It recognizes and incorporates the practice of permitting plaintiff's attorney to effect service pursuant to Ark. Stat. Ann. 27-2503 (B) (Supp. 1975) which is superseded hereby. It is further provided that plaintiff's attorney is permitted to effect service by mail under Rule 4(f) as opposed to having it served by an attorney ad litem. The provision in FRCP 4(c) for liberal special appointments of persons to serve process is eliminated here as the special travel distance considerations are not as compelling in state practice.

5. Section 4(d)(1) is essentially the same as FRCP 4(d)(1) and superseded Ark. Stat. Ann. 27-330 (Repl. 1962). While the Federal Rule permits service upon "some person of suitable age and discretion" in defendant's usual place of abode, this Rule requires service upon a person who has attained the age of 14 years, thus achieving greater certainty as to validity of service. This Rule permits effective service in the event it is refused by the defendant, thus continuing the Arkansas practice in that regard and making explicit the effect of FRCP 4(d)(1) in that regard. See Smith v. Kincaid, 249 F. 2d 243 (6th Cir. 1957) and Errion v. Connell, 236 F. 2d 447 (9th Cir. 1956).

6. FRCP 4(d)(2) defers to state law for service upon an infant or incompetent. Sections 4(d)(2) and 4(d)(3) thus have no precedent in the Federal Rules. They represent a simplification of superseded Ark. Stat. Ann. 27-336 and 27-337 (Repl. 1962) with careful regard to protecting the rights of minors and incompetents. Section (d)(2) permits service upon an infant who is at least fourteen (14) years of age, but unlike superseded Arkansas law, it provides for service on either parent or guardian who has care and control of such an infant. Where such an infant resides with someone other than a parent or guardian, service shall be upon that person, provided that he has the care and control of the infant.

7. Section 4(d)(3) supersedes Ark. Stat. Ann. 27-337 (Repl. 1962) and its requirement that service be had upon the incompetent personally. This section provides that service shall be upon the guardian, if one has been appointed. Since a guardian is a fiduciary and usually bonded, it should be assumed that he will protect the interest of the ward and seek legal counsel on behalf of the ward. Where no guardian has been appointed, service is permitted upon the spouse or other person having the care of the incompetent and with whom the incompetent lives. When the incompetent is confined to an institution, service shall be upon the superintendent or administrator of the institution and upon the guardian, if any. As suggested in the compiler's note to Ark. Stat. Ann. 27-337.1 (Supp. 1975), that section may have been sufficiently broad to affect proceedings other than in probate. This rule is intended to supersede that statute.

8. Section (d)(4) has no specific counterpart in the Federal Rules. This section is essentially the same as superseded Ark. Stat. Ann. 27-338 (Repl. 1962) except that it was there provided that the summons and complaint could be left at the inmate's last address with someone sixteen (16) years of age or older. Limitation of the requirement to service upon the superintendent or keeper of the institution and upon the spouse, if any, of the inmate, is sufficiently protective of the inmate's rights, particularly in view of Ark. Stat. Ann. 27-833 (Repl. 1962) which remains unaffected by these Rules.

9. Section (d)(5) is almost identical to FRCP 4(d)(3). It does not purport to change the law to make an unincorporated association any more subject to service than it has been heretofore, rather, the intent is merely to specify a procedure for service in those cases in which an unincorporated association may be served.

10. Section (d)(7) is identical to FRCP 4(d)(7) except for a minor phraseology change to adapt it to state practice.

11. Sections (e)(1) through (5) cover the matters found in FRCP 4(e) and 4(i), and deal with service upon a person outside the State of Arkansas or the United States. The provisions in these Sections are identical to those of the Uniform Interstate and International Procedure Act, Ark. Stat. Ann. 27-2503 (1) (Supp. 1975).

12. Section (f) is intended to cover those situations where the court has jurisdiction of the subject matter and person or persons named as defendant(s), but where the whereabouts of a defendant is unknown. This provision significantly alters Arkansas law, particularly as it applies to in rem or quasi in rem actions. It abolishes the necessity of having a warning order published and an attorney ad litem appointed in in rem actions where the identity and whereabouts of a defendant are known. In such situations, actual service under Section (e) will suffice. This Rule does not define the distinction between personal and in rem actions. Presumably the distinction will remain, and the courts will use it to ascertain the propriety of proceeding in some cases where "personal service" has not been effected. The mechanics of service herein prescribed will not be affected by characterization of the action as being personal or in rem, however. Regarding procedural due process, the Supreme Court of the United States has held that the adequacy of constructive service is dependent upon whether it is reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard. Millikin v. Meyer, 311 U. S. 456, 61 S. Ct. 339 (1940). Obviously, actual notice is better than constructive service which may confer no notice at all. This Rule requires service resulting in actual notice in all cases where the identity or whereabouts of the defendant is known. Similar procedure has been adopted in New York and California. See New York Civil Practice Law & Rules, 314 and 315 (1972) and California Code of Civil Procedure, 415.50 (1973). The burden is on the party attempting service by publication to attempt to locate the missing or unknown defendant. Such party or his attorney is required to demonstrate to the court, by affidavit or otherwise, that after diligent inquiry, the defendant's identity or whereabouts remains unknown.

13. Section (g) requires that the return be made at least within the time during which the defendant must respond to the summons. Where the summons is served by someone other than a sheriff or his deputy, an affidavit concerning service is required. The return must show facts, to the satisfaction of the court, demonstrating that the form of service complied with this Rule. Failure to make proof of service does not render invalid an otherwise valid service of summons.

14. Section (h) continues the Arkansas practice permitting the trial judge to allow amendment of a summons or return where prejudice would not result to the party against whom the summons is issued.

Addition to Reporter's Notes, 1982 Amendment: - Rule 4(b) was amended to state a default judgment "may," rather than "will," be taken upon failure to answer.

Addition to Reporter's Notes, 1983 Amendment: - Rule 4(c) has been changed to be consistent with the new provisions for service by mail appearing in Rule 4(d)(8).

Rule 4(d)(2) has been amended by the substitution of the word "when" for the word "where" at the beginning of each sentence.

Rule 4(d)(5) has been amended by inserting the words "Partner other than a limited partner" thus providing a means of serving a partnership heretofore missing from the rule. Deleted from the rule is the requirement of adding to the personal delivery provision service by certified mail.

Added to Rule 4(d)(7) is the language permitting service upon a municipality by serving the Attorney General when plaintiff's counsel makes affidavit to the effect that the appropriate municipal officer is unknown or cannot be found. This will permit service on a municipality even though the office of the appropriate officer to receive service is vacant.

Rule 4(d)(8) is added to permit service upon all defendants named in paragraphs 1 or 5 of Rule 4(d), whether or not they are residents of Arkansas, to be served by mail.

In Rule 4(e)(3), the words "requiring a signed receipt" have been replaced by "requiring a receipt signed by the addressee or the agent of the addressee." Postal regulations permit mail addressed with delivery restricted to addressee to be received only by the addressee or an agent appointed according to postal regulations.

Rule 4(f) is amended by reducing the number of publications of notice to defendants whose whereabouts or identity is unknown from four to two and by adding the words "if any" to the requirement of mailing notice to a last known address.

The first sentence of Rule 4(g) is amended to remove the words "and in any event." The second sentence is amended to suggest putting the "return" on "the same page" as contains the summons which the Supreme Court suggested parenthetically at the end of the summons form adopted by per curiam order of February 1, 1982. In the third sentence, all words after the word "thereof" have been added to take account of the new mailing provisions of Rule 4(d)(8). A sentence in the Rule before amendment stating that "failure to make proof of service shall not affect the validity of the service" is omitted.

The entire subdivision, Rule 4(i) has been excised. It required that default judgment not be taken in cases of service by mail unless an attorney ad litem had been appointed at least 30 days before judgment to inform the defendant of the suit. In its place, the amended Rule 4(i) deals, in a substantially different way with the requirement, heretofore in Rule 3, that service be obtained within a specified time after the filing of a claim for relief. Ark.R.Civ.P. 4(i) is substantially similar to F.R.C.P. 4(j).

Addition to Reporter's Notes, 1984 Amendment: - Rule 4(d)(1) is amended to remove the words "or an incompetent person," and Rule 4(d)(3) is amended to provide for service upon any person for whom a guardian has been appointed. The terminology is from the Limited Guardianship Act, Ark. Stat. Ann. 57-801 through 57-820 (Supp. 1983). To the extent this Act has not supplanted other forms of guardianships, i.e., those provided in Chapters 5 and 6 of the Arkansas Probate Code, there may be appointments of "guardians of the person" and "guardians of the estate." The term "plenary guardian" is intended to apply to those cases, and service should be upon the guardian and the individual or the superintendent of an institution in which the individual may be confined.

Rule 4(d)(8) is amended to permit service by mail upon all classes of defendants except the United States and its agencies. If service is by mail, it should be directed to the person or officer to whom the service would otherwise be "delivered" pursuant to this Rule. Subsection (8) is also amended by insertion of the words "or the agent of the addressee" in the second sentence.

Rule 4(e) is amended to permit service in foreign countries by means provided in any applicable treaty, convention or executive agreement.

That which had been Rule 4(f) has become 4(f)(1) with the addition of the last sentence which makes it clear there is no need to publish or mail notice to "John Doe" in an action brought against an unknown tortfeasor. Subsection 4 (f)(2) has been added to assist trial courts in their efforts to comply with the requirements of Boddie v. Connecticut, 401 U.S. 371 (1971).

Rule 4(i) is amended by removal of the requirement of notice to a plaintiff of dismissal of a complaint not served within 120 days and by addition of an exception making it inapplicable to actions against unknown tortfeasors.

Rule 4(j) has been added to bring into the Rule a notice procedure to be followed when the court is exercising its power in rem, e.g., an action for divorce seeking no personal judgment. The mailing procedure replaces any requirement that an attorney ad litem be appointed for the defendant in these cases.

Addition to Reporter's Note, 1986 Amendment: - Rule 4(e)(3) is amended to make explicit that service by mail outside the state must be sent with restricted delivery, thus harmonizing the provision with Rule 4(d)(8), which governs service by mail within the state. New subsection (k) is primarily aimed at making clear that the service-by-mail provisions of Rule 4(d)(8) may be utilized to serve writs of garnishment.

Addition to Reporter's Notes, 1988 Amendment: - Rule 4 is amended in an effort to expand the options for service of process. Under amended Rule 4(c)(3), a new class of persons - anyone not less than eighteen years of age who is not a party - may serve the summons and complaint. The federal rules contain a similar provision. See Rule 4(c)(2)(A), Fed. R. Civ. P. As under prior Arkansas practice, the rule also permits the sheriff, a deputy sheriff, or any other person specially appointed by the court to serve the summons and complaint, though the amendment makes clear that a person so appointed must not be less than eighteen years of age. The prior provision permitting service by "any other person authorized by law to serve summons" has been deleted as unnecessary, particularly in light of new subdivision (c)(3). New subdivision (c)(4), which applies in the event of service by mail, tracks the language of subdivision (d)(8) and was added here for the sake of clarity.

Amended Rule 4(d)(8) establishes an alternative method for service of process by mail. New paragraph (B) of this subdivision is virtually identical to the corresponding federal rule. See Rule 4(c)(2)(C)(ii), (D) & (E), Fed. R. Civ. P. Because new paragraph (B) supplements rather than supplants the prior service-by-mail provision now found in paragraph (A) of subdivision (d)(8), practitioners may choose the method they consider the most workable. The federal courts also allow this choice, since Rule 4(c)(2)(C)(i), Fed. R. Civ. P., allows service in accordance with the law of the state in which the federal court sits.

Addition to Reporter's Notes, 1989 Amendment: - Rule 4(c) is amended by deleting a provision that permitted service of process by any person not less than eighteen years of age who is not a party. The change was made to assure adequate judicial control over persons who serve process.

Addition to Reporter's Notes, 1993 Amendment: - Subdivision (d)(5) is amended by inserting the term "limited liability company." As a result of the amendment, these entities are to be served in the same manner as other business organizations, such as corporations and partnerships. Act 1003 of 1993, the Small Business Entity Tax Pass Through Act [ 4-32-101 et seq.], provides for service on the registered agent of a limited liability company and, in some cases, on the Secretary of State. However, the Act expressly provides that it does not limit or restrict "the rights to serve process in any other manner now or hereafter provided by law." Act 1003, 107(c) [ 4-32-107]. This provision plainly contemplates that alternative methods of service, such as those set out in Rule 4, may be employed. See CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991) (discussing analogous statute).

Subdivision (d)(8)(A) is amended to provide that when service is made by mail pursuant to this provision, the addressee must be "a natural person specified by name." The amendment is necessary to comply with Postal Service rules. Under Section 933.1 of the Domestic Mail Manual, "[r]estricted delivery service permits a mailer to direct delivery only to the addressee or the addressee's authorized agent," and "[t]he addressee must be an individual (or natural person) specified by name."

Addition to Reporter's Notes, 1997 Amendment: - Subdivision (a) has been reworded for purposes of clarity; no substantive change is intended. Subdivision (c)(2) has been amended to make plain that "the court" for purposes of appointing a person to serve the summons and complaint is either the court in which the action is filed or the court in the county where service is to be made. This question arose, but was not resolved, in Hubbard v. The Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993). The amendment also changes the caption of subdivision (g) from "return" to "proof of service," makes minor grammatical revisions, and adds a sentence dealing with proof of service in a foreign country, a matter not previously addressed by the rule. The new provision is based on language in Rule 4(l) of the Federal Rules of Civil Procedure, as amended in 1993.

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: - 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.

Addition to Reporter’s Notes, 2007 Amendment: New Administrative Order Number 20 prescribes minimum qualifications for private process servers appointed by the circuit courts, as well as the procedure for their appointment. The change in Rule 4(c) eliminates the one former qualification (being at least eighteen years old) and incorporates by reference the expanded qualifications contained in the new Administrative Order.

Rule 5. 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) Confidential information as defined and described in Sections III(A)(11) and VII(A) of Administrative Order 19 shall not be included as part of a case record unless the confidential information is necessary and relevant to the case. Section III(A)(2) of the Administrative Order defines a case record as any document, information, data, or other item created, collected, received, or maintained by a court, court agency or clerk of court in connection with a judicial proceeding. If including confidential information in a case record is necessary and relevant to the case:
   (A) The confidential information shall be redacted from the case record to which public access is granted pursuant to Section IV(A) of Administrative Order 19. The point in the case record at which the redaction is made shall be indicated by striking through the redacted material with an opaque black mark or by inserting some explanatory notation in brackets, such as: [Information Redacted], [I.R.], [Confidential], or [Subject To Protective Order]. If an entire document is redacted, then the name of the document (with the number of pages redacted specified) should be noted in the publicly available court file and the entire document should be filed under seal. The requirement that the redaction be indicated in case records shall not apply to court records rendered confidential by expungement or other legal authority that expressly prohibits disclosure of the existence of a record; and
   (B) An un-redacted copy of the case record with the confidential information included shall be filed with the court under seal. The un-redacted copy of the case record shall be retained by the court as part of the court record of the case. It is the responsibility of the attorney for a party represented by counsel and the responsibility of a party unrepresented by counsel to ensure that confidential information is omitted or redacted from all case records that they submit to a court. It is the responsibility of the court, court agency, or clerk of court to ensure that confidential information is omitted or redacted from all case records, including orders, judgments, and decrees, that they create.
    (3) 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.

History. Amended July 9, 1984, effective September 1, 1984; amended June 24, 1985, effective September 1, 1985; amended July 7, 1986, effective September 15, 1986; amended November 20, 1989, effective January 1, 1990; amended December 10, 1990, effective February 1, 1991; amended November 8, 1993, effective January 1, 1994; amended November 18, 1996, effective March 1, 1997; amended January 28, 1999; amended June 24, 1999; amended January 27, 2000; amended January 24, 2002; amended February 10, 2005; Amended October 23, 2008, effective January 1, 2009.

Reporter's Notes (as modified by the Court) to Rule 5: - 1. This Rule is essentially the same as FRCP 5 and makes no significant change in Arkansas law. With the obvious exception of ex parte proceedings, and conferring some discretion on the court in cases involving multiple parties, the Rule requires service of all pleadings, papers and other documents generated in the lawsuit on each of the other parties to the action.

2. FRCP 5(b) permits service in certain instances upon "some person of suitable age and discretion" residing in the residence or usual place of abode of the person to be served. As stated in the Reporter's Notes to Rule 4, the Committee has, in order to overcome the vagueness and uncertainty of that language, provided that in such an instance service may be had upon some person who is at least fourteen years of age.

3. FRCP 5(c) is omitted from the Rule because Section (a) adequately permits the trial judge to waive service where multiple parties are involved.

4. FRCP 5(e) permits the trial judge to accept the filing of pleadings and other papers personally. That procedure has been retained, because the clerk may not always be present.

5. Although FRCP 5 makes no provision for proof of service of pleadings, most Federal District courts require it by local rule, and it has been heretofore required in Arkansas courts. Rule 5(e) thus effects no change in that regard.

Additions to Reporter's Notes, 1984 Amendments: - Rule 5(b) is amended to incorporate provisions from Ark. Stat. Ann. 27-632 (Repl. 1979), which is now deemed superseded, making insufficient service of papers on an attorney in a case in which there has been a final order but reserved, continuing jurisdiction.

Rule 5(c) is amended to do away with the requirement that the papers mentioned be filed. Although discovery papers are among those which need no longer be filed, requests for admission and responses to requests for admission must be filed.

Additions to Reporter's Note, 1985 Amendment: - The first sentence of Rule 5(a) is amended to make plain that all correspondence between counsel and the court is to be served upon all parties. As the Reporter's Note to the original version of this rule indicates, the phrase "every other paper" is to be given an expansive reading and includes "all pleadings, papers and other documents generated in the lawsuit . . ." Without intending to limit the breadth of the term, this amendment simply specifies by way of illustration a "paper" falling within the rule. Thus, the amended rule requires, for example, service of a precedent for judgment prepared at the court's request. Compare Karam v. Halk, 260 Ark. 3, 537 S.W.2d 797 (1976).

Addition to Reporter's Note, 1986 Amendment: - The 1986 amendment adds the words "or any statute" following the word "rule" in the first sentence of subsection (b). The rule thus applies not only to those papers required to be filed by the Rules of Civil Procedure, but also to documents that must be filed under the provisions of particular statutes, e.g., Ark. Stat. Ann. 34-2617 (Supp. 1985) (notice of intent to sue in medical malpractice proceedings).

Addition to Reporter's Note, 1989 Amendment: - Rule 5(b) is amended to make clear that service upon an attorney under the rule is permitted by "fax" machine or by commercial delivery service, as well as by mail. This recognition of "new technology" is consistent with Act 58 of 1989 [ 16-20-109], which permits a court clerk to accept pleadings filed via fax machine.

Addition to Reporter's Note, 1990 Amendment: - Subdivision (a) of Rule 5 requires that "pleadings asserting new or additional claims for relief against [parties in default for failure to appear] shall be served in the manner provided for service of summons in Rule 4." This provision implies that a pleading asserting a new or additional claim for relief against a party who has appeared in the action need only be served on the party's attorney, as set forth in Rule 5(b). Some federal courts have so construed the virtually identical federal rule. E.g., Dysart v. Marriot Corp., 103 F.R.D. 15 (E.D. Pa. 1984). However, Arkansas cases predating adoption of the Rules of Civil Procedure indicate that service by summons on a party already before the court is required in some circumstances. E.g., Nance v. Flaugh, 221 Ark. 352, 253 S.W.2d 207 (1953); Arbaugh v. West, 127 Ark. 98, 192 S.W. 171 (1917). See also Howard v. County Court, 278 Ark. 117, 644 S.W.2d 256 (1983) (citing Arbaugh with approval but not discussing Rule 5).

To clarify Arkansas procedure, subdivision (a) of Rule 5 has been amended to provide that any pleading stating a new or additional claim for relief against a party who has appeared in the action may be served in the manner prescribed by subdivision (b). Consequently, such a pleading - e.g., a counterclaim, cross claim, or amended complaint stating a new claim for relief - may be served by mail on the party's attorney, and the methods for service of process set out in Rule 4 need not be employed. Service on the attorney in this context is consistent with the basic theory of Rule 5 that service of papers on the attorney, rather than the party, will expedite adjudication of the case and constitute sufficient notice to the party to comply with the requirements of due process. See Adam v. Saenger, 303 U.S. 59 (1938). If a party has not appeared, however, Rule 5(a) specifically provides that service must be made under Rule 4. Similarly, if the pleading seeks to add a new party - e.g., an answer asserting a counterclaim against the plaintiff and a third person over whom the court has not previously acquired jurisdiction - the pleading must be served on the new party as provided by Rule 4. Because the plaintiff in that situation is already before the court, the pleading may be served on his attorney.

Addition to Reporter's Notes, 1993 Amendment: - Rule 5(c) is amended by adding a new sentence providing that the clerk shall not refuse to accept any paper for filing solely because it is not presented in the proper form. Virtually identical language was added to Rule 5(e) of the Federal Rules of Civil Procedure in 1991. The amendment reflects the view that a judge, not the clerk, is the proper official to make determinations of this type. Moreover, a clerk's refusal to accept a document for filing exposes litigants to the hazards of time bars.

Addition to Reporter's Notes, 1997 Amendment: - Subdivision (c) has been amended by designating the former text as paragraph (1) and by adding new paragraph (2), which addresses the filing of papers by facsimile. A statute adopted in 1989 provides that clerks may accept fax copies of pleadings but does not cover other papers that are filed. See Ark. Code Ann. 16-20-109. Paragraph (2) tracks the language of the statute but applies to any paper filed under this rule. The new sentence added to subdivision (d) makes clear that the judge may permit papers filed with him to be transmitted by facsimile.

Addition to Reporter's Notes, 1999 Amendment: - Subdivision (b) has been divided into three paragraphs, but only one change has been made. Previously, service by regular mail was sufficient in all cases. See Office of Child Support v. Ragland, 330 Ark. 280, 954 S.W.2d 218 (1997) (motion requesting judgment for unpaid child support). Paragraph (2) provides for service by regular mail as a general rule; however, paragraph (3) creates an exception by incorporating the requirements of Rule 4(d)(8)(A) for service by mail on a party when, as in Ragland, a final judgment or decree has been entered and the court has continuing jurisdiction. In this situation, paragraph (1) requires, as did the prior version of the rule, that service be made on the party, not his or her attorney. Ark. Code Ann. 16-58-131, which addressed these issues and other matters now governed by Rules 4 and 5, has been deemed superseded.

Several changes have been made in subdivision (c)(2) concerning facsimile filings. The statute on which the rule was originally based, Ark. Code Ann. 16-20-109, has been deemed superseded. The first sentence of subdivision (c)(2) has been amended to require any clerk with a facsimile machine to accept facsimile filings of any paper filed under this rule and to allow the clerk to charge a fee of $1.00 per page. Previously, the rule provided that a clerk with a facsimile machine "may accept" papers filed by fax. Apparently, some clerks refused to accept papers filed in this manner even though they had the necessary equipment. Also, language in the first sentence requiring that an original document be substituted for a fax filing if the latter were not made on bond-type paper has been deleted. This provision was considered unnecessary in light of improvements in the quality of fax machines. The third sentence of subdivision (c)(2) has been amended to require that the clerk stamp or otherwise mark the facsimile copy as filed on the date and time that it is received in the clerk's office or, if received when the office is closed, on the next business day. The last sentence of the prior version of the rule, which provided that "[t]he date and time printed by the clerk's facsimile machine on the transmitted copy shall be prima facie evidence of the date and time of filing," has been deleted because the date and time are printed by the sender's facsimile machine, not the clerk's.

Addition to Reporter's Notes (1999): - Subdivision (b) has been divided into three paragraphs, but only one change has been made. Previously, service by regular mail was sufficient in all cases. See Office of Child Support v. Ragland, 330 Ark. 280, 954 S.W.2d 218 (1997) (motion requesting judgment for unpaid child support). Paragraph (2) provides for service by regular mail as a general rule; however, paragraph (3) creates an exception by incorporating the requirements of Rule 4(d)(8)(A) for service by mail on a party when, as in Ragland, a final judgment or decree has been entered and the court has continuing jurisdiction. In this situation, paragraph (1) requires, as did the prior version of the rule, that service be made on the party, not his or her attorney. Ark. Code Ann. 16-58-131, which addressed these issues and other matters now governed by Rules 4 and 5, has been deemed superseded.

Addition to Reporter's Notes, 2000 Amendment: - Subdivision (c)(1) of the rule has been amended to provide that discovery materials, except for requests for admission, shall not be filed with the clerk unless the court so orders. This is the practice in the federal district courts in Arkansas and in several states. See Rule 5.5(f), Rules of the U.S. District Courts for the Eastern and Western Districts of Arkansas; Rule 2-401(d)(2), Md. R. Civ. P.; Rule 191.4, Tex. R. Civ. P. Under the prior version of the rule, the filing of such materials was optional absent a court order.

Addition to Reporter's Notes, 2002 Amendment: - Since 1989, subdivision (b)(2) has allowed service of papers, other than the summons and complaint, on attorneys via commercial delivery companies. This subdivision has been amended to allow service by this method on parties as well, but with the safeguard that the commercial delivery company be court-approved. Section 1-2-122(b) of the Arkansas Code, which allowed service by "an alternative mail carrier," has been deemed superseded.

Subdivision (b)(2) has also been revised to provide that "service by commercial delivery company is presumptively complete upon depositing the papers with the company." This provision parallels that for service by mail, which "is presumptively complete upon mailing." Subdivision (b)(3), which applies when the circuit court has continuing jurisdiction, has been amended to reflect the addition of new paragraph (C) of Rule 4(d)(8).

Addition to Reporter's Notes, 2005 Amendment: - Rule 5(c)(1) has been amended. In some counties, the county clerk serves as the ex officio clerk of the probate division of the circuit court. Ark. Code Ann. 14-14-502(b)(2)(B). Uncertainties have arisen in these circumstances about the effect of filing a pleading or paper with the wrong clerk. A sentence has been added to subsection (c)(1) to make plain that, in these counties, a party complies with Rule 5 when the document is file marked by either the circuit clerk or the county clerk. Similar clarifying language has been added to Rule of Civil Procedure 3(b) (filing a complaint), Administrative Order Number 2 (clerk's docket and filing), and Rule of Appellate Procedure - Civil 3(b) (filing a notice of appeal).

Addition to Reporter’s Notes, 2008 Amendment: Subdivision (c) of the rule has been amended to incorporate Administrative Order 19’s requirements, which grant the public broad access to case records while safeguarding confidential information in those records. (The Administrative Order is appended to the Rules of Civil Procedure.) Amended Rule 5(c) obligates lawyers, and pro se litigants, to identify and shield confidential information that is necessary and relevant to the case by redacting that information in all publicly available documents they file with the court. The rule places primary responsibility for protecting information that the law has adjudged confidential on those individuals best situated to recognize and protect that information—lawyers and parties. They know the facts of their cases better than court staff or courts; they create almost all the documents coming into the court’s record; and they have the greatest incentive to minimize and protect confidential information in case records.

Under subdivision 2(B), courts, court agencies, and clerks are responsible for omitting or redacting confidential information from case records—including orders,
judgments, and decrees—that they create. A parallel change reflecting this obligation in judgments and decrees has been made in Rule of Civil Procedure 58.
Administrative Order 19 defines categories of confidential information and the Commentary to the Order explains the legal basis for the confidentiality. Section VII of the Order lists the following categories of confidential information in case records that are excluded from public access absent a court order allowing disclosure:

(1) information excluded from public access pursuant to federal law;
(2) information excluded from public access pursuant to the Arkansas Code Annotated;
(3) information excluded from public access by order (including protective order) or rule of court;
(4) Social Security numbers;
(5) account numbers of specific assets, liabilities, accounts, credit cards, and personal identification numbers (PINs);
(6) information about cases expunged or sealed pursuant to Ark. Code Ann.§ 16-90-901, et seq.;
(7) notes, communications, and deliberative materials regarding decisions of judges, jurors, court staff, and judicial agencies; and
(8) all home and business addresses of petitioners who request anonymity when seeking a domestic order of protection.

The Commentary to Section VII of Administrative Order 19 discusses confidential information protected from public disclosure under federal and Arkansas law. The Commentary includes a non-exhaustive list of Arkansas Code Annotated sections regarding confidentiality of records whose confidentiality may extend to the records even if they become court records. See also the Arkansas Personal Information Protection Act, Ark. Code Ann. § 4-110-101, et seq.

New subsection (c)(2) embodies Order 19’s important threshold requirement: only confidential information that is “necessary and relevant to the case” should be in a case record. Litigants are likewise best able to make this evaluation. And because they must redact any such information in a case record, litigants will have an incentive to reduce redactions by screening out unnecessary and irrelevant confidential information when creating documents for filing.

The amended rule provides two methods of redaction: blacking out the protected information or inserting a bracketed reference to the fact of redaction. Both achieve Administrative Order 19’s balance between public access and confidentiality. If a redaction covers all of any multi-page document, then the rule requires listing the name of the document and the number of pages redacted in the publicly available court file. No useful purpose would be served by having a stack of blacked-out pages in the public file. Because a litigant will have deemed redacted information necessary and relevant, the court will need access to that information in handling and deciding the case. To allow this access, subdivision 2(B) obligates litigants to file unredacted copies of all their court papers under seal.

Some state agencies who deal routinely with confidential information—such as the Public Service Commission—have developed specialized rules for handling and
protecting that information. Administrative Order 19 and its implementing rules in the Rules of Civil Procedure do not apply directly to those agencies’ internal proceedings. But when a case from the PSC or other agency is appealed, the Rules of Appellate Procedure—Civil and the Rules of the Supreme Court and Court of Appeals do apply. Those Rules now implement Administrative Order 19 by incorporating and applying the redaction provisions of the Rules of Civil Procedure to all briefs, petitions, and other papers filed on appeal. Current agency procedures about confidential information that do not conflict with the new redaction rules are permissible. For example, confidential PSC documents are filed at the Commission on pink paper under seal. This and similar procedures supplement, but do not conflict with, the basic scheme required by Rule of Civil Procedure 5(c)(2). Certain appeal records will therefore contain materials shaped by these supplementary procedures, which is acceptable.

Rule 6. 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.

History. Amended July 7, 1986, effective September 15, 1986; amended November 21, 1988, effective January 1, 1989; amended December 10, 1990, effective February 1, 1991; amended November 11, 1991, effective January 1, 1992; amended January 27, 2000; amended January 24, 2002; amended March 13, 2003; amended January 22, 2004

Reporter's Notes to Rule 6: - 1. This Rule is practically identical to FRCP 6. Section (a) has been changed somewhat by omitting a recitation of specific legal holidays within the definition of legal holiday. It is redundant to list specifically the holidays and then add to the list "any other day appointed as a holiday by the President of [or] the Congress" or by the State.

2. This Rule does not substantially change previous Arkansas practice. As before, trial judges are given broad discretion in most instances to extend the various periods of time within which certain actions must be taken. The exceptions are noted in Section (b).

Addition to Reporter's Note, 1986 Amendment: - Rule 6(a) is amended, consistently with the federal rule, to extend the exclusion of intermediate Saturdays, Sundays, and legal holidays to the computation of time periods less than 11 days. Under the former version of the rule, parties bringing motions under rules with 10-day periods could have as few as five working days to prepare their motions.

Addition to Reporter's Notes, 1988 Amendment: - Rule 6(d) is amended to make plain that a defendant does not have an extra three days to file an answer or preanswer motion under Rule 12 when the summons and complaint are served by mail pursuant to Rule 4. Allowing a defendant an additional three days to answer in the event of service by mail would be a "bonus" not available to a defendant served by another method. Under Rule 12(a), a defendant must answer or file a preanswer motion within a given number of days "after the service of summons and complaint upon him." The specified time period thus begins to run when the defendant receives the summons and complaint, irrespective of the manner in which it is served. Rule 6(d) continues to apply with respect to pleadings and papers other than the complaint, however, for service of these materials by mail is presumptively complete upon mailing, Rule 5(b), Ark. R. Civ. P. Thus, the three-day extension provided by Rule 6(d) is necessary to compensate for the "lag time" between the mailing of these papers and their delivery.

Addition to Reporter's Note, 1990 Amendment: - Rule 6(b) is amended to correspond to the changes made in Rule 55 regarding default judgments. Under revised subdivision (b)(2), the court may, upon motion, extend the time for filing an answer (or for other action) after the relevant period has expired if the failure was the result of "mistake, inadvertence, surprise, excusable neglect, or other just cause." This standard, which mirrors that employed in Rule 55(c)(1) with respect to the setting aside of a default judgment, is intended to liberalize Arkansas practice. Under former Rule 6(b), an extension of time was permissible only where the failure to act was the result of "excusable neglect, unavoidable casualty or other just cause."

Addition to Reporter's Notes, 2000 Amendment: - The time period in the third sentence of subdivision (a) has been changed from eleven days to fourteen days, the intent being to eliminate confusion in the computation of response time when a motion has been served by mail under subdivision (d).

Addition to Reporter's Notes, 2002 Amendment: - Rule 6(c) has been amended to clarify the timing of motions, responses, and replies. A related change with respect to motion practice has been made in Rule 7(b), which governs the form and content of motions, responses, and replies. Cross-references to Rules 6(c) and 7(b) have been added to Rule 12(i) and Rule 78(b).

Under the prior version of subdivision (c), a written motion and notice of hearing had to be served no later than ten days prior to the date set for hearing. At the same time, Rule 78(b) provided a ten-day period for a response and a five-day period for reply. As a result, there might be no time for a reply. To address this problem, the ten-day period in subdivision (c) has been expanded to twenty days. Also, the provisions governing the timing of responses and replies have been shifted from Rule 78(b) to subdivision (c). As was previously the case, the court may modify the time periods by order. These periods are inapplicable when a different time frame is established by another rule, e.g., Rule 56(c) (motions for summary judgment).

The provision in the former version of subdivision (c) as to supporting affidavits now appears in Rule 7(b)(2).

Addition to Reporter's Notes, 2003 Amendment: - Subdivision (a) has been amended to address the situation in which the clerk's office is closed for reasons other than weekends and legal holidays. The amendment incorporates the Supreme Court's holding in Honeycutt v. Fanning, 349 Ark. 324, 78 S.W.3d 96 (2002), and makes Rule 6(a) consistent with, though not identical to, its federal counterpart.

Subdivision (d) of the rule has been rewritten to include commercial delivery companies. The amended subdivision applies when service of papers, other than the summons and complaint, is by mail or by commercial delivery company.

Addition to Reporter's Notes, 2004 Amendment: - Subdivision (b) of the rule has been amended by adding Ark. R. Civ. P. 4(i) to the list of exceptions, thereby codifying the holding in Smith v. Sidney Moncrief Pontiac, No. 02 449 (June 19, 2003).