III. Pleadings and Motions
Rule 7. Pleadings and motions.
(a) Pleadings Allowed. There shall be a complaint and an answer; a counterclaim; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third party answer, if a third party complaint is served. No other pleadings shall be allowed.
(b) Motions and Other Papers.
(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(2) All motions required to be in writing and any responses and replies shall include a brief supporting statement of the factual and legal basis for the motion, response, or reply and the citations relied upon. Any supporting affidavits shall be served with the motion, response, or reply. Failure to satisfy these requirements shall be ground for the court's striking the motion, response, or reply. The court is not required to grant a motion solely because no response or brief has been filed.
(3) The rules applicable to captions, signings, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.
(4) The procedure for submitting a potentially dispositive motion to the circuit court for
decision, both with and without a hearing, is outlined in Administrative Order Number 3(2)(B).
(c) Demurrers, Pleas, etc., Abolished. Demurrers, pleas and exceptions for insufficiency of a pleading shall not be used.
(d) Copies of Pleadings and Motions. One additional copy of all pleadings and motions shall be filed by a party or his attorney for the use of the court.
History. Amended January 24, 2002
Reporter's Notes to Rule 7: - 1. This Rule serves the purpose of FRCP 7 by providing a simple and elastic pleading and motion procedure, placing minimum emphasis on form and reducing the number of pleadings allowed. Roughley v. Penn. R. R. Co., 230 F.2d 387 (3rd Cir. 1956).
2. With minor exceptions Section (b) is the same as FRCP 7(b). Although the superseded Ark. Stat. Ann. 27-1103 (Repl. 1962) did not provide for pleadings other than complaint, demurrer or answer and demurrer or reply to the answer, other now superseded statutes recognized the validity of counterclaims and replies thereto as well as cross complaints. All pleadings recognized herein have been a part of Arkansas practice.
3. As in FRCP 7, Section (b) requires a reply to a counterclaim only when it is "denominated as such." No reply is required to a set-off or to a counterclaim which is not so denominated. Thus, by failure to reply, a plaintiff does not lose the right to defend against new matters set out in the answer unless the answer, or a part of it, is denominated "counterclaim." Gulf Refining Co. v. Fetschan, 130 F.2d 129 (6th Cir. 1942), cert. den., 318 U.S. 764, 63 S. Ct. 666. Indeed, a reply to an answer not containing a counterclaim denominated as such should not be considered by the court. See Carpenter v. Rohm & Hass, 170 F.2d 146 (3d Cir. 1948) and Kramer v. Jarvis, 81 F. Supp. 360 (D. C. Neb. 1948).
4. FRCP 7(a) provides that the court may order a reply to an answer or a third party answer. That provision is omitted from the Rule because its theoretical necessity is questionable and its practical value is very little. A reason given for this FRCP provision is that it may enable the defendant to determine whether the plaintiff will admit to new matters raised in the answer but not denominated as a counterclaim. The same goal can be accomplished through discovery. Other reasons for the FRCP provision are stated in Wright and Miller, Federal Practice and Procedure, 1185 (1969), but none of them seems sufficient to justify its inclusion here. In the leading case on whether the court should, pursuant to FRCP 7(a), order a reply to an answer, the court held that such a reply should not be ordered unless there is a "clear and convincing factual showing of necessity or other extraordinary circumstances of a compelling nature," and that a reply should not be used as a substitute for discovery or inspection or for a pre-trial hearing. Moire Color, Ltd. v. Eastman Kodak Co., 24 F.R.D. 325 (D.C. N.Y. 1959). Prior Arkansas law permitted no reply except in response to allegations containing a counterclaim or set-off. As noted above, no reply is required or permitted to a set-off under this Rule.
5. The purpose of Section 6(1), which is the same as FRCP 7(b)(1), is to give written notice to other parties of motions not made in the course of a hearing or trial. Oral motions made during a hearing or trial are still permitted as they are usually reduced to writing in the record of the proceedings, and they remain necessary, due to the unpredictable nature of litigation.
6. Section (b)(2) requires that matters as to form of pleadings are applicable to motions and other documents. The evident reason is to avoid the unnecessary complication resulting from different formulary rules.
7. Perhaps the most notable effect of Rule 7 is its abolition of the demurrer from Arkansas procedure. It was abolished in the FRCP and the old Federal Equity Rules and elsewhere for avoiding its sheer technicality and to permit more liberal tools for attacking the sufficiency of pleadings which accomplish the legitimate purposes of the demurrer, e.g., Rule 12(b)(6).
8. Section (d) continues the practice prescribed in superseded Rule 1(c) of the Uniform Rules for Circuit and Chancery Courts which required an additional copy of all pleadings and motions for use of the court.
Addition to Reporter's Notes, 2002 Amendment: - New paragraph (2) of subdivision (b) addresses matters that previously appeared in Rule 6(c) (supporting affidavits) and Rule 78(b) (content of motions). With these changes, Rule 6(c) governs the timing of motions, responses, and replies, while Rule 7(b) governs their content. Rule 78(b) simply cross-references these provisions. Former paragraph (2) of subdivision (b) has been redesignated as paragraph (3), and minor changes have been made in the titles of subdivision (b) and the rule.
Addition to Reporter's Notes, 2007 Amendment: New paragraph (4) of subdivision (b) references the 2007 changes in Administrative Order 3, which clarify when a matter is submitted for decision for purposes of that Order.
Rule 8. General rules of pleading.
(a) Claims for Relief. A pleading which sets forth a claim for relief, whether a complaint, counterclaim, crossclaim, or third party claim, shall contain (1) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief, and (2) a demand for the relief to which the pleader considers himself entitled. In claims for unliquidated damage, a demand containing no specified amount of money shall limit recovery to an amount less than required for federal court jurisdiction in diversity of citizenship cases, unless language of the demand indicates that the recovery sought is in excess of such amount. Relief in the alternative may be demanded.
(b) Defenses: Form of Denials. A party shall state in ordinary and concise language his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the claim, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments, except such designated averments or paragraphs as he expressly admits, provided that he may admit any part thereof and deny the remainder. When the pleader intends in good faith to controvert all averments, including averments of the grounds upon which the court's jurisdiction depends, he may do so by general denial subject to the obligations set forth in Rule 11.
(c) Affirmative Defenses. In responding to a complaint, counterclaim, cross-claim or third party claim, a party shall set forth affirmatively accord and satisfaction, arbitration and award, comparative fault, discharge in bankruptcy, duress, estoppel, exclusiveness of remedy under workmen's compensation law, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, set-off, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
(d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied, either generally or specifically, in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
(e) Pleading to Be Concise and Direct: Consistency.
(1) Each averment of a pleading shall be direct and stated in ordinary and concise language. No technical forms of pleadings or motions are required.
(2) When permitted by Rule 18, a party may set forth two or more separate claims, provided that each claim shall be set forth in separate, numbered counts. A party shall set forth in an answer or reply as many defenses, whether legal or equitable, as he may have. All statements shall be made subject to the obligations set forth in Rule 11.
(f) Construction of Pleadings. All pleadings shall be liberally construed so as to do substantial justice.
History. Amended May 16, 1983; amended December 14, 1992
Reporter's Notes to Rule 8: - 1. Although reworded, Rule 8 is substantially the same as FRCP 8. It seeks to accomplish the same purpose as FRCP 8, i.e. to require that pleadings be drafted in such a manner as to give a party fair notice of what the claim is and the grounds upon which it is based. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99 (1957).
2. Section (a) requires that all claims for relief contain three basic elements, one of which a statement upon which venue and jurisdiction are based which requirement was not found under superseded Ark. Stat. Ann. 27-1113 (Repl. 1962). Section (a)(1) and (2) substitutes the term "ordinary and concise" language from this superseded statute for the term "short and plain" found in the Federal Rule.
3. Section (a)(3) tracks superseded Ark. Stat. Ann. 27-1113 (4) (Supp. 1975) relative to claims for unliquidated damages. The obvious purpose of this section is to prevent a plaintiff from using unliquidated demands to avoid removal of diversity of citizenship cases to federal court.
4. Section (b) follows FRCP 8(b). The theory behind this section is that an answer or reply should apprise a claimant which allegations in the claim are admitted and not in issue and which are contested and thus require proof. Mitchell v. Wright, 154 F. 2d 924 (C.C.A. 5th, 1946). In the first sentence of Section (b), the term "ordinary and concise" is substituted for the term "short and plain" used in the Federal Rule.
5. Section (b) permits a pleader to allege that he is without knowledge or information sufficient to form a belief as to the truth of an averment and thereby deny such allegation. This follows superseded Ark. Stat. Ann. 27-1121 (2) (Repl. 1962). In doing so, however, the pleader must act in good faith or risk having his pleading stricken under Rule 12(f). Section (b) also requires that the pleader fairly meet the substance of the averment denied. The purpose of this provision is to proscribe a pleading which neither admits nor denies, but simply demands proof of claimant's allegations. Such an allegation or averment is not sufficient to constitute a denial. Reed v. Hickey, 2 F.R.D. 92 (D.C., 1941). Section (b) also follows the Federal Rule by allowing a pleader to admit certain allegations while denying others, and by permitting the use of general denials, although their use is discouraged under federal practice. One asserting a general denial is required to act in good faith in doing so.
6. Section (c) follows in substance FRCP 8(c). The list of affirmative defenses contained in this section is not intended to be exclusive and other defenses may be asserted, if available, even though not specifically listed. The last sentence of this section grants the court discretion to allow a counterclaim or affirmative defense even though improperly designated.
7. Section (d) is essentially the same as FRCP 8(d) and superseded Ark. Stat. Ann. 27-1151 and 27-1121 (Repl. 1962) concerning general denials.
8. Section (e)(1) is designed to avoid verbosity in pleadings. It is a slightly reworded version of FRCP 8(e)(1). Technical rules or forms of pleadings or motions are abolished. Also, this section follows superseded Ark. Stat. Ann. 27-1121 (Repl. 1962) in requiring separate defenses to be set out in separate, numbered paragraphs.
9. Section (f) follows superseded Ark. Stat. Ann. 27-1150 (Repl. 1962) by requiring that all pleadings be liberally construed so as to do substantial justice.
Addition to Reporter's Notes, 1983 Amendment: - Rule 8(a) is amended to remove the requirement of pleading grounds of jurisdiction and venue.
The original Reporter's Notes were meant to apply to the committee draft of Rule 8(a) and not to the rule as revised by the Supreme Court. In Harvey v. Eastman Kodak Co., 261 Ark. 783, 610 S.W.2d 582 (1981), the Supreme Court made clear its intention that Arkansas had not become a "notice pleading" jurisdiction in the image of the federal system. See, Faculty Note, 34 Ark. L. Rev. 722 (1981).
Addition to Reporter's Notes, 1992 Amendment: - Rule 8(a) is amended to require that the complaint and other pleadings that set forth claims for relief include facts showing that the court has jurisdiction and that venue is proper. This requirement is consistent with statements in the case law regarding personal and subject matter jurisdiction. E.g., Malone & Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992) (personal jurisdiction is to be determined on the basis of facts alleged in the complaint); Hesser v. Johns, 288 Ark. 264, 704 S.W.2d 165 (1986) (question of whether court has jurisdiction over the subject matter is determined from allegations in the complaint). Moreover, the Supreme Court has recognized that a complaint may on its face reveal that venue is improper. E.g., Mack Trucks of Arkansas, Inc. v. Jet Asphalt & Rock Co., 246 Ark. 101, 437 S.W.2d 459 (1969). Nonetheless, some confusion arose in light of the 1983 amendment of Rule 8(a) deleting a requirement, found in the original version of the rule, that the complaint contain a statement of "the grounds upon which venue and the court's jurisdiction depend." However, elimination of the requirement that grounds be pleaded was apparently not intended to modify the role of the factual allegations in the determination of jurisdiction and venue. The 1992 amendment, which is designed to clarify the obligations of the pleader as to jurisdiction and venue, is consistent with the requirement that a complaint allege facts constituting a cause of action. See Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981).
Rule 9. Pleading special matters.
(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud, mistake, duress or undue influence, the circumstances constituting fraud, mistake, duress or undue influence shall be stated with particularity. Malice, intent, knowledge and other condition [conditions] of mind of a person may be averred generally.
(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
(d) Official Document or Act. In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law.
(e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed, they shall be specifically stated.
Reporter's Notes to Rule 9: - 1. With certain exceptions, Rule 9 substantially follows FRCP 9. Few changes in Arkansas law are effected by this rule. Section (a) requires that any party desiring to raise an issue as to the capacity or authority of a party do so by specific, negative averment. This is closely akin to superseded Ark. Stat. Ann. 27-1121 (2) (Repl. 1962) which provided that an allegation as to the status of a party was taken as admitted unless specifically denied. While lack of authority or capacity is not treated as an affirmative defense under the Federal Rule, it is analogous to an affirmative defense in that the objection is waived unless specifically asserted. Summers v. Interstate Tractor & Equipment Co., 446 F. 2d 42 (C.C.A. 9th, 1972); Carver v. Hooker, 369 F. Supp. 204 (D.C., N.H., 1973).
2. Omitted in Section (a) is the provision found in FRCP 9(a) which requires that capacity or status of a party be alleged when required to show the court's jurisdiction. This provision does not appear to be necessary under Arkansas practice, particularly in view of Rule 8(a)(1) which requires a statement of the grounds upon which venue and jurisdiction depend.
3. Section (b) adds the requirement not found in FRCP 9(b) that duress or undue influence be plead with particularity. This is in keeping with prior Arkansas law. Jansen v. Blissenbach, 210 Ark. 22, 193 S.W.2d 814 (1946); Ledwidge v. Taylor, 200 Ark. 447, 139 S.W.2d 238 (1940).
4. Section (c) is generally in accord with prior Arkansas law. Superseded Ark. Stat. Ann. 27-1147 (Repl. 1962) required that in pleading the performance of a condition precedent in a contract, a party need only state generally that he had performed all conditions on his part. This rule is broader in scope and applies to all actions, whether contractual or not. It should have the effect of removing such requirements as pleading notice of breach of warranty as a condition precedent to maintaining such a claim. L.A. Green Seed Co. of Arkansas v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969).
5. Section (e) is essentially the same as superseded Ark. Stat. Ann. 27-1146 (Repl. 1962) and does not affect any changes in Arkansas law.
6. Section (f) provides that the allegations as to time and place are material as opposed to the old common law rule which treated them as immaterial and thus subject to variance at the trial. The purpose of this provision is to enable a party to raise such defenses as statute of limitations and laches based upon dates alleged by the opposing party. See Wright & Miller, Federal Practice & Procedure, Section 1308. In short, a party is bound by the dates and places alleged in his pleadings.
7. Section (g) follows the common law rule that special damages must be pleaded specifically. Arkansas has recognized this rule, but has not always adhered to it. Arkansas Power & Light Co. v. Harper, 249 Ark. 606, 460 S.W.2d 75 (1970); Ark-La Gas Co. v. McGaughey Bros., Inc., 250 Ark. 1083, 468 S.W.2d 754 (1971).
8. Omitted from Rule 9 is Section (h) of FRCP 9 which deals with admiralty and maritime claims under federal law.
Rule 10. Form of pleadings.
(a) Caption; Names of Parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number and a designation as in Rule 7 (a). In the complaint, the title of the action shall include the names of all the parties, but in other pleadings, it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.
(b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense.
(c) Adoption by Reference; Exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.
(d) Required Exhibits. A copy of any written instrument or document upon which a claim or defense is based shall be attached as an exhibit to the pleading in which such claim or defense is averred unless good cause is shown for its absence in such pleading.
Reporter's Notes to Rule 10: - 1. Section (a) of Rule 10 is identical to FRCP 10(a) and generally follows prior Arkansas law. Superseded Ark. Stat. Ann. 27-1113 (Repl. 1962) dealt with captions in complaints and superseded Ark. Stat. Ann. 27-1121 (Repl. 1962) dealt with captions in answers. Also, the use of only one plaintiff, defendant or other party when there are multiple parties was previously permitted by superseded Ark. Stat. Ann. 27-1121 (1) (Repl. 1962).
2. Section (b) is identical to FRCP 10(b) with the exception of the omission of the phrase "whenever a separation facilitates the clear presentation of the matters set forth" found in the second sentence. This rule makes it mandatory that each claim founded upon a separate transaction or occurrence and each defense other [than] denials be stated in separate counts or defenses. This is consistent with the requirements contained in superseded Ark. Stat. Ann. 27-1114 (Repl. 1962) and superseded Ark. Stat. Ann. 27-1121 (4) (Repl. 1962).
3. The purpose of Section (c) is to permit the incorporation by reference of prior allegations and thus encourage short and concise pleadings.
4. Section (d) marks a deviation from FRCP 10 in that the attachment of exhibits is here made mandatory unless good cause is stated in the pleading to justify their absence. This provision is similar to superseded Ark. Stat. Ann. 27-1144 (Repl. 1962), except there is no requirement here that the best evidence of a written instrument be filed in the absence of the original. No attempt has been made by the Committee to define good cause which justifies the failure to attach an exhibit to a pleading; instead, the courts are given the discretion to make such determination. It is the intent, however, that exhibits should be attached to pleadings in all but exceptional cases.
Rule 11. Signing of pleadings, motions, and other papers; sanctions.
(a) Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, and that it complies with the requirements of Rule of Civil Procedure 5(c)(2) regarding redaction of confidential information from case records submitted to the court. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
(b) A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (a). It shall be served as provided in Rule 5 but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion.
History. Amended July 1, 1986, effective September 15, 1986; amended November 18, 1996, effective March 1, 1997; Amended October 23, 2008, effective January 1, 2009.
Reporter's Notes to Rule 11: - 1. With minor changes, Rule 11 is substantially identical to FRCP 11. Omitted from Rule 11 is the provision in the Federal Rule which abolished the old equity rule as to quantum of proof required where an answer is under oath. Arkansas has not followed this rule; therefore, there is no need to have a provision which abolished it.
2. Superseded Ark. Stat. Ann. 27-1105 (Repl. 1962) required that a complaint, answer and reply be verified. Under Rule 11, only those few pleadings and motions specifically required by these rules to be verified need be verified. Under this and the Federal Rule, verification of pleadings is the exception and not the rule.
3. Under FRCP 11, the signature of an attorney to a pleading amounts to an affirmation that he believes the pleading to have merit. Russo v. Sofia Bros., Inc., 2 F.R.D. 1 (D.C. N.Y., 1941). It is a breach of an attorney's duty to file pleadings which create issues that counsel does not believe to have basis in fact. Arena v. Luckenbach Steamship Co., 279 F.2d 186 (C.C.A. 1st, 1960).
4. Omitted from Rule 11 are the words "as sham and false" found in FRCP 11. These words do not add any particular import to the rule, hence their omission. Also, the word "served" as used in FRCP 11 has been deleted and the word "filed" substituted therefor.
Addition to Reporter's Note, 1986 Amendment: - Rule 11 has been completely rewritten. It is now substantially identical to Federal Rule 11, as amended in 1983. As adopted in 1979, Arkansas Rule 11 was virtually identical to its federal counterpart, providing for the striking of pleadings and imposition of disciplinary sanctions to check abuses in the signing of pleadings. Experience under original Rule 11 in the federal courts demonstrated that the rule was not effective in deterring abuses, and confusion existed as to the circumstances that could trigger striking a pleading or taking disciplinary action, the standard of conduct expected of attorneys who sign pleadings and other papers, and the range of available sanctions. The amended rule is intended to reduce the reluctance of the courts to impose sanctions by emphasizing the responsibilities of the attorney and reenforcing those obligations by the imposition of sanctions.
As amended, Rule 11 expressly applied to pleadings, motions, and other papers. It therefore includes discovery requests, discovery motions, and any other paper that must be filed and served under Rule 5, Ark. R. Civ. P. Moreover, amended Rule 11 provides that, in addition to disciplinary sanctions, the trial judge may impose other sanctions upon an offending attorney, including a reasonable attorney's fee for the opposing party. The assessment of attorney's fees for violation of procedural rules is currently found in other Rules of Civil Procedure, e.g., Rules 37(a)-(d), 56(g), and 26(b) & (c).
Amended Rule 11 states that the signature of an attorney constitutes a certificate by him "that to the best of his knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law." This language is substantially stronger than in the former rule. In addition, the recently adopted Arkansas Rules of Professional Conduct emphasize that a lawyer may not ethically bring or defend a proceeding or an issue unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. See Rule 3.1, Arkansas Rules of Professional Conduct.
Under the former version of Rule 11, the signature of an attorney certified that the suit or motion was not interposed for purposes of delay. The new rule is broader in stating that the pleading, motion or other paper "is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." This provision is consistent with the newly adopted ethical rules. For example, Rule 3.2 of the Arkansas Rules of Professional Conduct provides that a lawyer "shall make reasonable efforts to expedite litigation consistent with the interest of the client."
Addition to Reporter's Notes, 1997 Amendment: - The rule has been amended by designating the former text as subdivision (a) and by adding new subdivision (b), which is based [on] Rule 11(c) (1) of the Federal Rules of Civil Procedure, as amended in 1993. In addition, the second sentence of subdivision (a) has been revised to require a party not represented by counsel to provide his telephone number, if any, along with his address.
New subdivision (b) provides that requests for sanctions must be made as a separate motion, rather than simply be included as an additional prayer for relief in another motion. The motion for sanctions is not to be filed until at least 21 days, or other such period as the court may set, after being served. If the alleged violation is corrected during this period, the motion should not be filed with the court. This provision is intended to provide a type of "safe harbor" against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party's motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation.
To emphasize the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the new subdivision provides that the "safe harbor" period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a letter or telephone call, of a potential violation before proceeding to prepare and serve a Rule 11 motion.
Addition to Reporter’s Notes, 2008 Amendment: Subdivision (a) has been amended by adding a new element to the certifications made by a pro se party or an attorney when that person signs a pleading, motion, or other paper. The attorney or party is now also certifying compliance with Administrative Order 19's mandate for redaction of necessary and relevant confidential information in the case record being filed. The incorporation of Administrative Order 19's mandate here gives the circuit court a ready method for enforcing this mandate.
Rule 12. Defenses and objections — When and how presented — By pleading or motion — Motion for judgment on the pleadings.
(a) When Presented.
(1) A defendant shall file his or her answer within 20 days after the service of summons and complaint upon him or her, except that: (A) a defendant not residing in this state shall file an answer within 30 days after service; (B) a defendant served under Rule 4(f) shall file an answer within 30 days from the date of first publication of the warning order; and (C) a defendant incarcerated in any jail, penitentiary, or other correctional facility in this state shall file an answer within 60 days after service. A party served with a pleading stating a cross-claim or counterclaim against him shall file his answer or reply thereto within 20 days after service upon him. The court may, upon motion of a party, extend the time for filing any responsive pleading.
(2) The filing of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (A) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be filed within 10 days after notice of the court's action; (B) if the court grants a motion for a more definite statement, the responsive pleading shall be filed within 10 days after service of the more definite statement. Provided, that nothing herein contained shall prevent a defendant summoned in accordance with Rule 4(f) from being allowed, at any time before judgment, to appear and defend the action; and, upon a substantial defense being disclosed, from being allowed a reasonable time to prepare for trial.
(3) When any case is removed to federal court and subsequently remanded, the plaintiff shall file a certified copy of the order of remand with the clerk of the circuit court and shall forthwith give written notice of such filing to all parties in accordance with Rule 5. Any adverse party shall have 20 days from the receipt of such notice within which to file an answer or a motion permitted under this rule.
(b) How Presented. Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state facts upon which relief can be granted, (7) failure to join a party under Rule 19, (8) pendency of another action between the same parties arising out of the same transaction or occurrence. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
(c) Motion for Judgment on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.
(d) Preliminary Hearings. The defenses specifically enumerated (1)-(8) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.
(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion is directed or make such order as it deems just.
(f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.
(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule, but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds therein stated.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading. Objection to venue may be made, however, if the action is dismissed or discontinued as to a defendant upon whose presence venue depends.
(2) A defense of failure to state facts upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits. The defense of lack of jurisdiction over the subject matter is never waived and may be raised at any time.
(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Upon a determination that venue is improper, the court shall dismiss the action or direct that it be transferred to a county where venue would be proper, with the plaintiff having an election if the action could be maintained in more than one county.
(i) Response to Motions; Reply. Any response in opposition to a motion under this rule and any reply to such a response shall be made as provided in Rules 6(c) and 7(b).
(j) Further Pleading. Attorneys will be notified of action taken by the court under this rule, and, if appropriate, the court will designate a certain number of days in which a party is to be given to plead further.
History. Amended July 9, 1984, effective September 1, 1984; amended July 6, 1987, effective September 21, 1987; amended November 18, 1996, effective March 1, 1997; amended January 27, 2000; amended February 1, 2001; amended May 24, 2001, effective July 1, 2001; amended January 24, 2002; amended March 13, 2003; amended January 22, 2004
Reporter's Notes to Rule 12: - 1. Rule 12(a) is a revised and condensed version of FRCP 12(a). Its purpose is to prescribe the mechanics and timetable for filing responsive pleadings. Its substance is substantially the same as the Federal Rule.
2. The times prescribed in Section (a) for filing responsive pleadings are taken in part from the Federal Rule and in part from prior Arkansas law. Superseded Ark. Stat. Ann. 27-1135 (Repl. 1962) provided that a defendant must plead to a complaint or cross-complaint on the first day after the expiration of twenty days where service was made inside this State and thirty days where service was made outside the State. Thus, a defendant had twenty-one or thirty-one days within which to file a response depending upon where service was effected. Under Section (a), the "extra" day for filing a response is eliminated.
3. This rule allows a nonresident of this State a period of thirty days to plead regardless of where service was effected and regardless of whether service was effected through a resident agent in this State.
4. Where a defendant is served by warning order, the thirty day period commences upon the date of the first publication of the warning order. This compares with superseded Ark. Stat. Ann. 27-1135 (3) (Repl. 1962) which provided that an appearance must have been made after thirty days had elapsed from the making of the warning order and appointment of the attorney ad litem.
5. Rule 12 substitutes the word "file" for serve and requires that the responsive pleading be filed within the time prescribed by this rule as opposed to serving the pleading as is the case under FRCP 12. By using this terminology, it is believed that arguments can be avoided as to when a pleading was served.
5 [6]. Section (a) follows the Federal Rule and superseded Ark. Stat. Ann. 27-1135 and 27-1137 (Repl. 1962) by allowing a period of twenty days within which to file a responsive pleading to a cross-claim or counterclaim.
6 [7]. Section (a) follows the Federal Rule by permitting the trial court to extend the time for filing any responsive pleading. This is in accord with prior Arkansas practice.
7 [8]. Section (b) sets forth the defenses which may be raised by motion prior to filing a responsive pleading. These defenses are essentially the same as those previously raised by motions to quash service and demurrers. This section is identical to Section (b) of the Federal Rule with the exception of the addition of (b)(8) which is a defense previously allowed under Ark. Stat. Ann. 27-1115 (3) (Repl. 1962). One important feature of this section is that it abolishes the distinction between general and special appearances; thus, it is not (is not) necessary to make a special appearance in order to challenge the jurisdiction of the person, process or venue. Blank v. Bitker, 135 F. 2d 962 (C.C.A. 7th, 1943); Product Promotions, Inc. v. Cousteau, 495 F. 2d 483 (C.C.A. 5th, 1974).
10 [9]. Sections (c) through (h) track FRCP 12(c) through (h) with the exception that Section (h)(1) takes into account the additional defense designed as (8) in 12(b) relating to the pendency of another action between the parties.
Additions to Reporter's Notes, 1984 Amendments: - Rule 12(h)(1) is amended to make it clear that the stated "waivable" defenses must be raised by motion pursuant to this rule or in the first responsive pleading or they are waived. The final sentence in this subsection excepts the objection to venue in the circumstances described in Ark. Stat. Ann. 27-614 (Repl. 1979), which is now superseded.
Addition to Reporter's Notes, 1987 Amendment: - Two new sections, based on provisions of the Uniform Rules for Circuit and Chacery [Chancery] Courts, have been added to Rule 12 in the interest of clarity and simplification. New section (i), which sets forth the time in which responses to motions must be filed, as well as the time period for the movants to file replies, tracks Uniform Rule 2(c) and (d). Though this requirement is also found in Rule 78(b) of the Rules of Civil Procedure, it is repeated here in a more conspicuous manner to assist users of the Rules. New section (j), borrowed from Rule 2(f) of the Uniform Rules, simply states that the court is to specify the time in which further pleading is allowed in the event the court grants a motion to dismiss and the deficiency can be remedied. These new provisions do not alter prior Arkansas practice.
Addition to Reporter's Notes, 1997 Amendment: - Paragraph (3) of subdivision (h) has been amended by adding a new sentence authorizing the court to transfer the case in the event that venue is improper. Rather than dismiss the action, the court may transfer it to any county where venue would be proper, with the plaintiff having an election if venue would lie in more than one county. The revised provision is generally consistent with Arkansas case law and the practice in the federal courts. See Terminal Oil Co. v. Gautney, 202 Ark. 748, 152 S.W.2d 309 (1941); Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989); 28 U.S.C. 1406(a).
Addition to Reporter's Notes, 2000 Amendment: - The second sentence of subdivision (h)(3) has been amended by replacing the introductory phrase "whenever it appears" with "upon a determination." This change eliminates the unintended suggestion in the original version of the sentence that a motion to dismiss for improper venue, like a motion to dismiss for lack of subject matter jurisdiction, can be made at any time. As subdivision (h)(1) of the rule makes plain, improper venue is a waivable defense.
Addition to Reporter's Notes, [February] 2001 Amendment: - As adopted in 1987, the first sentence of subdivision (i) referred to "a motion made under this or any other rule." The words "or any other" have been deleted because of the 2001 amendment to Rule 56(c) establishing time frames for summary judgment motions and responses. Other motions are covered by Rule 78(b).
Addition to Reporter's Notes, [May] 2001 Amendment: - Paragraph (3) of subdivision (h) has been amended to reflect Constitutional Amendment 80, under which the circuit court is the single court of general jurisdiction in the state. A clause in the first sentence providing for transfer in the event that the court lacks subject matter jurisdiction has been deleted because there are no longer separate circuit, chancery, and probate courts. Left intact, however, is language directing the court to dismiss the action whenever it appears that subject matter jurisdiction is lacking. This provision comes into play when, for instance, the Constitution assigns original jurisdiction to another court. By way of example, the Supreme Court has original jurisdiction to determine the sufficiency of state initiative and referendum petitions and proposed constitutional amendments.
Furthermore, while state courts generally have concurrent jurisdiction with the federal courts to decide cases arising under federal law, state courts are without subject matter jurisdiction if Congress has made federal jurisdiction exclusive. See, e.g., 28 U.S.C. 1338(a) (patent and copyright cases).
Addition to Reporter's Notes, 2002 Amendment: - Subdivision (i) of the rule previously included time periods for serving responses to motions and replies to responses. These matters are now governed by Rule 6(c), and subdivision (i) has been amended to provide a cross-reference to that provision. There has also been added a cross-reference to Rule 7(b), which governs the content of motions, responses, and replies.
Addition to Reporter's Notes, 2003 Amendment: - Under revised subdivision (a), a person "incarcerated in any jail, penitentiary, or other correctional facility in this state" has 30 days in which to respond to a complaint. This additional time helps ensure that such a defendant has an opportunity to obtain counsel and to be heard in the action.
Subdivision (h)(2) has been amended to provide that the defense of lack of subject matter jurisdiction is never waived and may be asserted at any time. The new sentence simply restates settled law.
Addition to Reporter's Notes, 2004 amendment: - Subdivision (a) has been divided into three paragraphs and other stylistic changes made. The two departures from prior law appear in what are now paragraphs (1) and (3). Under the first paragraph, the time for an incarcerated defendant to file an answer has been increased from 30 days to 60 days. This change recognizes the role of prison employees under Rule 4(d)(4) in delivering the summons and complaint, the possibility that delays in such delivery may occur, and the likelihood that securing legal representation will take longer for incarcerated persons than for other defendants.
Paragraph (3) deals with an issue previously covered in Rule 55(f), i.e., the time period for responding to a complaint after a federal court has remanded a removed case to state court. The new paragraph expands that period from 10 to 20 days and states more clearly the point at which the time begins to run. See NCS Healthcare v. W.P. Malone, Inc., 350 Ark. 520, 88 S.W.3d 852 (2002). Because of new language in Rule 55(f), a defendant who filed an answer or Rule 12 motion in federal court while the case was pending there need not, following remand, take the same action in state court within the 20- day grace period to avoid a default judgment. See Addition to Reporter's Notes to Rule 55 (2004 amendment).
Rule 13. Counterclaim and cross-claim.
(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.
(b) Permissive Counterclaim. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
(d) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after filing his pleading shall be presented as a counterclaim by supplemental pleading, provided that if such counterclaim matures or is acquired after all issues are joined, it may be asserted by the pleader in a separate action.
(e) Omitted Counterclaim. When a pleader fails to assert a counterclaim, he shall be entitled to assert such counterclaim by amended or supplemental pleading subject to the requirements and conditions of Rule 15.
(f) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence which is the subject matter either of the original action or of a counterclaim therein or relating to any property which is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
(g) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.
(h) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.
History. Amended December 10, 1990, effective February 1, 1991
Reporter's Notes to Rule 13: - 1. With the exception of one minor wording change, Sections (a) and (b) are otherwise identical to FRCP 13(a) and (b). The word "serving" found in the Federal Rule is omitted and the word "filing" is substituted therefor. These sections abolish the strict compulsory counterclaim rule in Arkansas as codified in superseded Ark. Stat. Ann. 27-1121 (Repl. 1962). Under this and the Federal Rule, the only counterclaims which are compulsory are those which arise out of the same transaction or occurrence. Otherwise, a counterclaim is permissive.
2. Section (c) is identical to FRCP 13(c) and does not change Arkansas law.
3. Section (d) of the Federal Rule is eliminated inasmuch as these rules cannot enlarge one's right to assert a counterclaim against the United States or any officer or agent thereof.
4. Section (d) is a revision of FRCP 13(e) and recognizes those rare occasions where a counterclaim arises after pleadings are served.
5. Section (e) is a revision of FRCP 13(f). Under the Federal Rule, delay in asserting a counterclaim may be fatal to one's right to assert such claim. Frank Adam Electric Co. [v.] Westinghouse Electric & Mfg. Co., 146 F. 2d 165 (C.C.A. 8th, 1945). This section follows superseded Ark. Stat. Ann. 27-1160 (Supp. 1975), by permitting a counterclaim to be asserted by amended pleading as any other amendment, subject to the conditions of Rule 15.
6. Section (e) is identical to FRCP 13(g). It follows the intent of superseded Ark. Stat. Ann. 27-1134.1 (Supp. 1975) by making such claims permissive rather than mandatory.
7. Section (g) follows FRCP 13(h) by allowing other parties to be brought in under the conditions of Rules 19 and 20. This is essentially what was permitted under superseded Ark. Stat. Ann. 27-1134.2 (Supp. 1975).
8. Rule 42(b) gives the court discretion to grant separate trials where two or more competing claims would otherwise have to be tried together. Section (h) of Rule 13, which is identical to Section (i) of the Federal Rule, answers any possible argument that the claim tried last would be barred by res judicata by reason of the first claim having been reduced to judgment or dismissed.
Addition to Reporter's Note, 1990 Amendment: - The amendment deletes the last sentence of subdivision (c), which provided that "[i]n the event the amount asserted in the counterclaim exceeds the monetary jurisdiction of the court in which it is filed, the matter shall be transferred to a court of competent jurisdiction to hear the full extent of the claim and counterclaim." This provision created confusion, since the state courts of general jurisdiction do not have monetary jurisdictional limits. While inferior courts have such limits, counterclaims in those courts are governed by Rule 7 of the Inferior Court Rules [now District Court Rules].
Rule 14. Third-party practice.
(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The third party plaintiff need not obtain leave to make the service if he files the third party complaint not later than 10 days after he files his answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and the third party complaint, hereinafter called the third-party defendant, shall make his defenses to the third party plaintiff's claim as provided in Rule 12 and his counterclaims against the third party plaintiff and cross-claims against other third party defendants as provided in Rule 13. The third party defendant may assert against the plaintiff any defenses which the third party plaintiff has to the plaintiff's claim. The third party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third party plaintiff. The plaintiff may assert any claim against the third party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third party plaintiff and the third party defendant shall thereupon assert his defenses as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third party claim or for its severance or separate trial. A third party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third party defendant.
(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.
Reporter's Notes to Rule 14: - 1. Rule 14 is substantially the same as FRCP and superseded Ark. Stat. Ann. 27-1134.1 (Supp. 1975). The latter was patterned after the Federal Rule. Omitted are the references in FRCP 14(a) to admiralty and maritime claims. Section (c) of the Federal Rule is omitted in its entirety.
2. Superseded Ark. Stat. Ann. 27-1134.1 (Supp. 1975) provided that where a third party complaint was not filed within ten days after the filing of the answer, leave of court on motion was required. This rule follows the requirement contained in the Federal Rule that leave of the court must be obtained on motion upon notice to all parties to the action. This will afford the opportunity to parties already in an action to object to the filing of a third party complaint if objection is warranted.
3. The purpose of Rule 14, as construed by the federal courts, is to facilitate the trial of multiple claims which would otherwise be triable only in separate proceedings. United States v. Yellow Cab Co., 340 U.S. 543, 71 S. Ct. 399 (1951). There is no set time during which a third party action must be initiated by a defendant; rather, the timeliness of defendant's application is left to the discretion of the trial court which must consider whether allowing the third party complaint will result in prejudice to the other parties. Meilinger v. Metropolitan Edison Co., 34 F.R.D. 143 (D.C. Pa., 1963); Kubik v. Goldfield, 61 F.R.D. 572 (D.C. Pa., 1974).
Rule 15. Amended and supplemental pleadings.
(a) Amendments. With the exception of pleading the defenses mentioned in Rule 12 (h)(1), a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 20 days after service of the amended pleading, whichever period is longer, unless the court otherwise orders.
(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence.
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
(d) Supplemental Pleadings. A party may at any time without leave of court file a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of a supplemental pleading, thecourt may strike such amended pleading or grant a continuance of the proceeding. A party shall plead in response to a supplemental pleading within the time remaining for response to the original pleading or within 20 days after service of the supplemental pleading, whichever period is longer, unless the court otherwise orders.
History. Amended July 9, 1984, effective September 1, 1984; amended November 8, 1993, effective January 1, 1994; amended February 1, 2001
Reporter's Notes to Rule 15: - 1. Section (a) of Rule 15 marks a substantial change from FRCP 15(a) and is generally in accord with prior Arkansas law. The Committee believed that amendments to pleadings should be allowed in nearly all instances without special permission from the court. The court is, however, given discretion to strike any amendment which would cause prejudice or unduly prolong the disposition of a case. As an alternative to striking an amendment, a continuance could be granted by the trial court. Under prior Arkansas law, trial courts were given broad discretion to permit an amendment to stand. Hogue v. Jennings, 252 Ark. 1009, 481 S.W.2d 752 (1972); Bridgman v. Drilling, 218 Ark. 772, 238 S.W.2d 645 (1951). Generally speaking, it is the intent of this rule that amendments to pleadings should be permitted without leave of the court in all instances unless it can be demonstrated that prejudice or delay would result. To this extent, Rule 15 is more liberal than superseded Ark. Stat. Ann. 27-1160 (Repl. 1962) and is certainly more liberal than the Federal Rule.
2. [As amended by Per Curiam, February 26, 1996] Section (b) is identical to FRCP 15(b). It follows prior Arkansas law by permitting amendments to conform to the proof adduced at trial. This rule goes somewhat further, however, by more or less making it mandatory that pleadings be amended to conform to the proof where there has been no objection to such proof. Metropolitan Life Ins. Co. v. Fugate, 313 F.2d 788 (C.C.A. 5th, 1963); Bradford Audio Corp. v. Pious, 329 F.2d 67 (C.C.A. 2nd, 1968). (Emphasis added.) Prior Arkansas law granted the trial court considerable discretion to permit pleadings to be amended to conform to the proof where there had been no objection raised. Velda Rose Motel, Inc. v. Eason, 241 Ark. 1041, 411 S.W.2d 502 (1967); Smith v. F. & C. Engineering Co., 225 Ark. 688, 285 S.W.2d 100 (1956). Where a new or different claim or defense was sought to be presented over the objection of the opposing party, the pleadings could not be amended to conform to the proof under prior Arkansas law. Shelton v. Harris, 225 Ark. 855, 286 S.W.2d 20 (1956); O'Guinn Volkswagen, Inc., v. Lawson, 256 Ark. 23, 505 S.W.2d 213 (1974). This rule does liberalize somewhat prior Arkansas law.
3. With the exception of minor wording changes, Section (c) is identical to FRCP 15(c). The question of relation back of pleadings normally does not arise unless the statute of limitations is involved. Under this and the Federal Rule, an amendment always relates back when it arises out of the conduct, transaction or occurrence set forth in the original pleading. Under prior Arkansas law, the question of whether a pleading related back was determined by whether the amendment asserted a new cause of action against the defendant. If it did, the amended pleading could not stand or relate back. Warmack v. Askew, 97 Ark. 19, 132 S.W. 1013 (1910); Love v. Couch, 181 Ark. 994, 28 S.W.2d 1067 (1930).
4. Section (c) also permits changing the party against whom a claim is asserted if the party sought to be brought in received such notice of the action that he would not be prejudiced if brought in and knew or should have known that but for mistake, he would have been made a defendant initially. Prior Arkansas law was somewhat more prohibitive in that where there was a substantial change in identity of the defendant so as to amount to a change of defendants, the amendment would not be permitted to relate back. Davis v. Chrisp, 159 Ark. 335, 252 S.W. 606 (1923); Arkansas Land & Lumber Co. v. Davis, 155 Ark. 549, 244 S.W. 730 (1922).
5. Omitted from Section (c) is the second paragraph of FRCP 15(c). Such provision is unnecessary under Arkansas practice.
6. Section (d) is identical to Section (d) of the Federal Rule. It is in accord with superseded Ark. Stat. Ann. 27-1161 (Repl. 1962). Its purpose is simply to allow a pleading to be supplemented to reflect facts which develop after the filing of the original pleading.
Additions to Reporter's Notes, 1984 Amendments: - Rule 15(a) is amended so that the first sentence takes account of the amendment to Rule 12(h)(1) making it clear that a waivable defense may not be raised by amendment "at any time."
The Rule is also amended to enlarge from 10 to 20 days the time to respond to an amended pleading.
Addition to Reporter's Notes, 1993 Amendment: - Subdivision (c) is revised to prevent parties against whom claims are made from taking unfair advantage of otherwise inconsequential pleading errors to sustain a limitations defense. The changes are based on the 1991 amendments to the corresponding federal rule.
Paragraph (1) is simply a restatement of the general "relation back" principle and works no change in the law. However, paragraph (2) effectively overturns the interpretation that had been given FRCP 15 with respect to a misnamed defendant. See Schiavone v. Fortune, 477 U.S. 21 (1986), cited with approval in Harvill v. Community Methodist Hospital Ass'n, 302 Ark. 39, 786 S.W.2d 577 (1986), and Southwestern Bell Tel. Co. v. Blastech, Inc., 313 Ark. 202, 852 S.W.2d 813 (1993). Under the revised rule, an intended defendant who is notified of an action with the period allowed by Rule 4(i) for service of a summons and complaint may not defeat the action on account of a defect in the pleading with respect to the defendant's name, provided that the requirements of clauses (A) and (B) have been satisfied. If the notice is received within the period specified in Rule 4(i), including an extension granted pursuant to that rule, a complaint may be amended at any time to correct a formal defect such as a misnomer or mis-identification.
Addition to Reporter's Notes, 2001 Amendment: - Subdivision (d), which governs supplemental pleadings, is amended to make its terms parallel with those of subdivision (a), which applies to amended pleadings. By virtue of the amendment, permission of the court to file a supplemental pleading is no longer necessary, although the opposing party may move to strike the pleading on grounds of prejudice or undue delay. Also, a response to the supplemental pleading is now required. Under the original version of the rule, a response was to be filed only if the court "deem[ed] it advisable."
Rule 16. Pretrial procedure; formulated issues.
In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:
(1) The simplification of issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining admissions of act and of documents which will avoid unnecessary proof;
(4) The limitation of the number of expert witnesses;
(5) The advisability of a preliminary reference of issues to a master;
(6) The possibility of settlement or, pursuant to Ark. Code Ann. 16-7-202, the use of extrajudicial procedures, including mediation, to resolve the dispute;
(7) Such other matters as may aid in the disposition of the action.
The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings and the agreements made by the parties as to any of the matters considered and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order, when entered, controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions.
History. Amended November 18, 1996, effective March 1, 1997
Reporter's Notes to Rule 16: - 1. Rule 16 is essentially the same as FRCP 16. The only change from the Federal Rule is found in Section (5). Under Rule 53, a master is not permitted in jury actions; hence, the minor wording change. This rule is substantially the same as superseded Ark. Stat. Ann. 27-2401 (Repl. 1962), which was patterned after FRCP 16.
2. Omitted from Rule 16 is Section (d) of Ark. Stat. Ann. 27-2401 (Repl. 1962). Motions or applications for the production of documents are matters which should be considered under Rule 34. Also, any unresolved questions concerning documents may be considered by the court and the parties under Rule 16 (3). Overall, this rule should have little effect on prior Arkansas law.
Addition to Reporter's Notes, 1997 Amendment: - Former paragraph (6) has been redesignated as paragraph (7) and a new paragraph (6) added to mention the possibility of settlement and the use of extrajudicial procedures, such as mediation. The amended rule, based on a similar provision in the Alabama Rules of Civil Procedure, recognizes that pretrial conferences can be profitably used to discuss settlement. Since it eases congested court dockets and results in savings to litigants and the judicial system, settlement should be facilitated at as early a stage in the litigation as possible. However, settlement conferences are not mandatory and would be a waste of time in many cases. In addition to settlement, paragraph (6) refers to exploring the use of alternative means of dispute resolution, such as mediation, in accordance with Ark. Code Ann. 16-7-202.