Opinion
Opinion delivered November 18, 1996
The 1995 report of the Arkansas Supreme Court Committee on Civil Practice contained a number of suggested rules changes. Many of the suggestions arose as a result of the 1993 revisions in the Federal Rules of Civil Procedure and our interest in having rules as much like the Federal Rules as possible. The Committee's 1995 suggestions were published by our per curiam order of November 13, 1995, so that members of the bench and bar could have an opportunity to comment.
We received a number of letters commenting on the proposed changes, some of them containing suggestions for revision of the Committee's suggestions. The Committee considered the comments and suggestions and revised and added to its suggested changes in its 1996 report.
We have reviewed the Committee's work and, with some minor changes, we publish the results and adopt the following suggested rules changes to be effective March 1, 1997.
We again express our gratitude to the members of our Civil Practice Committee, chaired by Judge John Ward, and to the Committee Reporter, Professor John J. Watkins, for the Committee's diligence in performing the important task of keeping our civil rules current, efficient, and fair.
Arkansas Rules of Civil Procedure1. The second sentence of Rule 1 is amended to read as follows:
They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.
The Reporter's Notes accompanying Rule 1 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: This revision, which adds the words "and administered" to the second sentence, is based on the 1993 amendment to the corresponding federal rule. Its purpose is to recognize the affirmative duty of the court to exercise the authority conferred by these rules to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay. Attorneys, as officers of the court, share this responsibility.
2. Subdivisions (a), (c) and (g) of Rule 4 are amended to read as follows:
(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 sheriff or to a person appointed by the court or authorized by law to serve process.
(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; (2) any person not less than eighteen years of age appointed for the purpose of serving a summons by either the court in which the action is filed or a court in the county in which service is to be made; or (3) in the event of service by mail pursuant to subdivision (d)(8) of this rule, by the plaintiff or an attorney of record for the plaintiff.
(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 or her 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 or her deputy, the person shall make affidavit thereof, and if service has been by mail, 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.
The Reporter's Notes accompanying Rule 4 are amended by adding the following:
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.
3. Subdivision (c) of Rule 5 is amended by designating its text, excluding the caption, as paragraph (1) and by adding a new paragraph (2) as follows:
(2) The clerk may accept facsimile transmissions of any paper filed under this rule, provided that it is transmitted on to bond-type paper that can be preserved for a period of at least ten years or on to nonbond paper if an original is substituted for the facsimile copy within ten days of transmission. Any signature appearing on a facsimile copy shall be presumed authentic until proven otherwise. A facsimile copy shall be deemed received when it is transmitted and received on the clerk's facsimile machine without regard to the hours of operation of the clerk's office. The 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 the filing.
Subdivision (d) of Rule 5 is amended by adding the following new sentence at the end:
If the judge permits filing by facsimile transmission, the provisions of subdivision (c)(2) of this rule shall apply.
The Reporter's Notes accompanying Rule 5 are amended by adding the following:
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.
4. Rule 11 is amended by designating its text as subdivision (a) and by amending the second sentence to read as follows:
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.
Rule 11 is amended further by adding a new subdivision (b) as follows:
(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.
The Reporter's Notes accompanying Rule 11 are amended by adding the following:
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 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.
5. Subdivision (h) of Rule 12 is amended by adding the following sentence at the end of paragraph (3):
Whenever it appears 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.
The Reporter's Notes accompanying Rule 12 are amended by adding the following:
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).
6. Rule 16 is amended by redesignating paragraph (6) as paragraph (7) and by adding new paragraph (6), as follows:
(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;
The Reporter's Notes accompanying Rule 16 are amended by adding the following:
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.
7. The introductory clause of subdivision (c) of Rule 26 is amended to read as follows:
Upon motion by a party or by the person from whom discovery is sought, stating that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
The Reporter's Notes accompanying Rule 26 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: The introductory clause of Rule 26(c) has been revised along the lines of the corresponding federal rule, as amended in 1993. A similar change has been made in Rule 37(a). As amended, subdivision (c) provides that a motion for a protective order must contain a statement that the movant has conferred, either in person or by telephone, with the other affected parties in a good faith effort to resolve the discovery dispute without the need for court intervention. If the movant is unable to get opposing parties even to discuss the matter, the efforts in attempting to arrange such a conference should be indicated. Like the motion itself, the statement required by subdivision (c) is subject to Rule 11.
8. Subdivision (b) of Rule 28 is amended to read as follows:
(b) In Foreign States or Countries. In a foreign state or country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony, or (3) pursuant to any applicable treaty or convention or pursuant to a letter of request, whether or not captioned a letter rogatory. A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impractical or inconvenient, and both a commission and a letter of request may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter of request may be addressed "To The Appropriate Authority in [name of the country]." When a letter of request or any other device is used pursuant to any applicable treaty or convention, it shall be captioned in the form prescribed by that treaty or convention. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States under these rules.
The Reporter's Notes accompanying Rule 28 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: This revision, based on a 1993 change in federal Rule 28(b), is intended to make effective use of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, and of any similar treaties that the United States may enter into in the future which provide procedures for taking depositions abroad. The term "letter of request" has been substituted for "letter rogatory" because it is the primary method provided by the Hague Convention. A letter rogatory is essentially a form of a letter of request.
9. Subdivision (b) of Rule 30 is amended by replacing the words "Non-Stenographic Recording" in the caption with the words "Method of Recording"; by inserting the words "under subdivision (a)" after the word "plaintiff" in the first sentence of paragraph (2); by deleting the last sentence of paragraph (2); and by revising paragraphs (3), (4) and (7) to read as follows:
(3) The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means. With prior notice to the deponent and other parties, any party may designate another method to record the deponent's testimony in addition to the method specified by the person taking the deposition. The additional record or transcript shall be made at that party's expense unless the court otherwise orders.
(4) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28 and shall begin with a statement on the record by the officer that includes: (A) the officer's name and business address; (B) the date, time, and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and (E) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.
(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means. For purposes of these rules, a deposition by such means is taken at the place where the deponent is to answer questions.
Rule 30 is amended further by revising subdivisions (c)-(f) to read as follows:
(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Arkansas Rules of Evidence, except Rule 103. The officer before whom the deposition is to be taken shall put the witness on oath or affirmation and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other method authorized by subdivision (b)(3) of this rule. All objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other aspect of the proceedings, shall be noted by the officer upon the record of the deposition; but the examination shall proceed, with the testimony being taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on either the party taking the deposition in which event he shall (1) transmit such questions to the office, or (2) directly upon the officer, who shall propound them to the witness and record the answers verbatim.
(d) Schedule and Duration; Motion to Terminate or Limit Examination. (1) Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. Absent exceptional circumstances, a party or a lawyer for a party may instruct a deponent not to answer only when necessary to preserve a reasonable, good faith claim of privilege, to enforce a limitation on evidence imposed by the court, or to present a motion under paragraph (3).
(2) The court may by order limit the time permitted for the conduct of a deposition, but shall allow additional time if needed for a fair examination of the deponent or if the deponent or another party impedes or delays the examination. If the court finds that an impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an immediate sanction, including the reasonable costs and attorneys' fees incurred by any parties as a result thereof.
(3) At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district in which the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
(e) Review by Witness; Changes; Signing. If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.
(f) Certification by Officer; Exhibits; Copies; Notice of Filing. (1) The officer shall certify that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. This certificate shall be in writing and accompany the record of the deposition. The officer shall securely seal the deposition in an envelope or package indorsed with the title of the action and marked "Deposition of [name of witness]" and, if ordered by the court in which the action is pending pursuant to Rule 5(c), promptly file it with the clerk of that court. Otherwise, the officer shall send it to the attorney who arranged for the transcript or recording, who shall store it under conditions that will protect it against loss, destruction, tampering, or deterioration. Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that (A) the person producing the materials may substitute copies to be marked for identification, if he affords to all parties fair opportunity to verify the copies by comparison with the originals, and (B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to the deposition if it is to be used at trial.
(2) Unless otherwise ordered by the court or agreed by the parties, the officer shall retain, for the period established for transcripts of court proceedings in the retention schedule for official court reporters, stenographic notes of any deposition taken stenographically or a copy of the recording of any deposition taken by another method. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript or other recording of the deposition to any party or to the deponent; provided that it shall be the duty of the party causing the deposition to be taken to furnish one copy to any opposing party, or in the event there is more than one opposing party, a copy may be filed with the clerk for the use of all opposing parties, and the party filing the deposition shall give prompt notice of its filing to all other parties.
The Reporter's Notes accompanying Rule 30 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: The changes that have been made in subdivisions (b)-(f) of this rule track the 1993 amendments to federal Rule 30 and are designed in part to take into account the use of video and other recording methods. Provisions in the federal rule limiting the number of depositions were not adopted.
The last sentence of subdivision (b)(2), which dealt with use of the deposition of a party unable to obtain counsel, has been deleted, and this matter is now covered by Rule 32(a)(3). The primary change in subdivision (b) is that parties will be authorized to record deposition testimony by nonstenographic means without first having to obtain permission of the court or agreement from other counsel. Under paragraph (3), the party taking the deposition has the choice of the method of recording. Objections to nonstenographic recording of a deposition, when warranted by the circumstances, can be presented to the court by motion pursuant to Rule 26(c). Other parties may arrange, at their own expense, for the recording of a deposition by a mens in addition to the method designated by the person noticing the deposition. A party choosing to record a deposition only by videotape or audiotape should understand that a transcript will be required if the deposition is later to be offered as evidence at trial under amended Rule 32(c) or on a dispositive motion under Rule 56.
Revised paragraph (4) of subdivision (b) requires that all depositions be recorded by an officer designated or appointed under Rule 28 and contains special provisions designed to provide basic safeguards to assure the utility and integrity of recordings taken other than stenographically. Paragraph (7) has been amended to allow the taking of a deposition not only by telephone but also by other remote electronic means, such as satellite television, when agreed to by the parties or authorized by the court.
Minor changes have been made in subdivision (c). First, the reference to Rule 43(b) has been replaced with a reference to the Arkansas Rules of Evidence. The examination and cross-examination of a deponent are governed by those rules, with the exception of Rule 103, which deals with evidentiary rulings. Second, subdivision (c) has been revised to reflect the changes made in subdivision (b) regarding the method by which a deposition is to be recorded. Finally, the provision that dealt with instructing the deponent not to answer has been deleted and moved to subdivision (d)(1).
Unlike its federal counterpart, subdivision (c) does not contain an exception from Rule 615 of the Rules of Evidence. By virtue of this exception in the federal rule, other potential witnesses are not automatically excluded from a deposition at a party's request, although the court can order their exclusion via a protective order. Because such an exception is not included in revised subdivision (c), depositions in Arkansas will continue to be subject to Rule 615.
The first sentence of subdivision (d)(1) provides that any objections during a deposition must be made concisely and in a non-argumentative and non-suggestive manner. Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the witness should respond. While objections may, under the revised rule, be made during a deposition, they should ordinarily be limited to those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on grounds that might be immediately obviated or cured, such as the form of a question or the responsiveness of an answer. Under Rule 32(b), other objections can, even without the so-called "usual stipulation" preserving objections, be raised for the first time at trial and therefore should be kept to a minimum during a deposition.
The second sentence of subdivision (d)(1) addresses an even more disruptive practice, i.e., instructing the deponent not to answer a question. This provision previously appeared, in slightly different form, in subdivision (c), having been added in 1991. The former language has been retained as to "reasonable, good faith claims of privilege," but new grounds based on the federal rule — to enforce a limitation on evidence imposed by the court and to present a motion under what is now designated as paragraph (3) — have been added.
Paragraph (2) of subdivision (d) dispels any doubts regarding the power of the court to limit, by order, the length of a deposition. This provision also expressly authorizes the court to impose the cost resulting from obstructive tactics that unreasonably prolong a deposition on the person engaged in such obstruction. This sanction may be imposed on a non-party witness as well as a party or attorney. Unlike the federal rule, paragraph (2) does not empower a trial court to establish limits on deposition length by local rule, since such rules are not permissible in Arkansas.
Paragraph (3) authorizes appropriate sanctions not only when a deposition is unreasonably prolonged, but also when an attorney engages in other practices that frustrate the fair examination of the deponent, such as making improper objections or giving directions not to answer prohibited by paragraph (1). In general counsel, should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer. The making of an excessive number of objections may itself constitute sanctionable conduct.
Various changes have been made in subdivision (e) to reduce problems sometimes encountered when depositions are taken stenographically. Reporters frequently have difficulties obtaining signatures from deponents and the return of depositions. Under the revision, pre-filing review by the deponent is required only if requested before the deposition is completed. If review is requested, the deponent will be allowed 30 days to review the transcript or recording and to indicate any changes in form or substance. Signature of the deponent will be required only if review is requested and changes are made.
Subdivision (f) has been revised to reflect changes made in subdivision (b) as to the methods by which a deposition may be taken. If the court does not order the deposition to be filed pursuant to Rule 5(c), the reporter can transmit the transcript or recording to the attorney taking the deposition or ordering the transcript or record, who then becomes custodian for the court of the original record of the deposition. Pursuant to paragraph (2), as under the prior rule, any other party is entitled to secure a copy of the deposition from the officer designated to take it. New language makes clear that the officer must retain a copy of the record or the stenographic notes, unless otherwise ordered by the court or agreed by the parties. The retention period is the same as that specified for transcripts of court proceedings in the record retention schedule for official court reporters in Arkansas.
10. Subdivision (a) of Rule 31 is amended to read as follows:
(a) Serving Questions; Notice. (1) Any party may take the testimony of any person, including a party, by deposition upon written questions without leave of court except as provided in paragraph (2). The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
(2) A party must obtain leave of court if the person to be examined is confined in prison or if, without the written stipulation of the parties, a plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under Rule 4(e), except that leave is not required if a defendant has served a notice of taking deposition or otherwise sought discovery, or if special notice is given as provided in Rule 30(b)(2).
(3) A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (A) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and (B) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 30(b)(6).
(4) Within 14 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 7 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 7 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.
The Reporter's Notes accompanying Rule 31 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: Subdivision (a) has been divided into four numbered paragraphs. The first two paragraphs make the rule consistent with Rule 30 as to the circumstances under which leave of court is required. Paragraph (3) is the former second paragraph, without substantive change. Paragraph (4) is the former third paragraph, but the total time for developing cross-examination, redirect, and recross questions is reduced from 50 days to 28 days.
11. Rule 32 is amended by adding the following new sentence at the end of subdivision (a)(3):
A deposition taken without leave of court pursuant to a notice under Rule 30(b)(2) shall not be used against a party who demonstrates that, when served with the notice, it was unable through the exercise of diligence to obtain counsel to represent it at the taking of the deposition; nor shall a deposition be used against a party who, having received less than 11 days notice of a deposition, has promptly upon receiving such notice filed a motion for a protective order under Rule 26(c)(2) requesting that the deposition not be held or be held at a different time or place and such motion is pending at the time the deposition is held.
Rule 32 is amended further by changing the cross-reference in subdivision (b) from "(c)(3)" to "(d)(3)", by redesignating subdivision (c) as subdivision (d), and by adding new subdivision (c) as follows:
(c) Form of Presentation. Except as otherwise directed by the court, a party offering deposition testimony pursuant to this rule may offer it in stenographic or nonstenographic form, but, if in nonstenographic form, the party shall also provide the court with a transcript of the portions so offered. On request of any party in a case tried before a jury, deposition testimony offered other than for impeachment purposes shall be presented in nonstenographic form, if available, unless the court for good cause orders otherwise.
The Reporter's Notes accompanying Rule 32 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: Subdivision (a)(3) has been amended by adding a new paragraph that includes not only the substance of provisions formerly found in Rule 30(b)(2), but also new language dealing with the situation in which a party who receives minimal notice of a deposition is unable to obtain a court ruling on a motion for protective order seeking to delay or change the place of the deposition. Ordinarily, a party does not obtain protection merely by the filing of a motion under Rule 26(c); any such protection is dependent upon the court's ruling. Under the revision, a party receiving less than 11 days notice of a deposition can, provided that its motion for a protective order is filed promptly, be spared the risks resulting from nonattendance at the deposition held before its motion is ruled upon. Although the revision covers only the risk that the deposition could be used against the non-appearing movant, it should also follow that, when the proposed deponent is the movant, the deponent would have "just cause" for failing to appear for purposes of Rule 37(d)(1). Inclusion of this provision is not intended to signify that 11 days' notice is the minimum advance notice for all depositions or that greater than 10 days should necessarily be deemed sufficient in all situations.
Former subdivision (c) has been redesignated as subdivision (d), without change, and a new subdivision (c) added to reflect the increased opportunities for video and audio recording of depositions under revised Rule 30. Under the new provision, a party may offer deposition testimony in any of the forms authorized under Rule 30(b) but, if offering it in a nonstenographic form, must provide the court with a transcript of the portions so offered. On request of any party in a jury trial, deposition testimony offered other than for impeachment purposes is to be presented in a nonstenographic form if available, unless the court directs otherwise.
12. Rule 33 is amended by deleting the semicolon and the words "Procedures for Use" from the caption of subdivision (a); by redesignating subdivisions (b) and (c) as (c) and (d), respectively; and by designating the second paragraph of subdivision (a) as subdivision (b) and amending it to read as follows:
(b) Answers and Objections. (1) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable. (2) The party answering interrogatories shall repeat each interrogatory immediately before the answer or objection. The answers are to be signed by the person making them and the objections signed by the attorney making them. (3) The party upon whom the interrogatories have been served shall serve a copy of the answers, or objections within 30 days after the service of the interrogatories, except that a defendant must serve answers or objections within 30 days after the service of the interrogatories upon him or within 45 days after the summons and complaint have been served upon him, whichever is longer. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties subject to Rule 29. (4) All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party's failure to object is excused by the court for good cause shown. (5) The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.
The Reporter's Notes accompanying Rule 33 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: Subdivision (a) of the former version of this rule has been divided into two subdivisions, and former subdivisions (b) and (c) have been redesignated as (c) and (d), respectively.
Paragraph (1) of subdivision (b) is based on the former second paragraph of subdivision (a). It emphasizes the duty of the responding party to provide full answers to the extent not objectionable. If, for example, an interrogatory seeking information about numerous facilities or products is deemed objectionable, but an interrogatory seeking information about a lesser number of facilities or products would not have been objectionable, the interrogatory should be answered with respect to the latter even though an objection is raised as to the balance of the facilities or products. Similarly, the fact that additional time may be needed to respond to some questions or parts of questions should not justify a delay in responding to those questions or portions that can be answered within the prescribed time.
Paragraph (2) is taken without change from the former second paragraph of subdivision (a). Paragraph (3) provides, in accordance with the prior version of the rule, that the court may shorten or lengthen the time for responding to interrogatories. New language expressly permits the parties to extend or shorten the response time by written agreement, a modification in discovery procedures that is permissible under Rule 29. Paragraph (4), which is new, makes clear that objections must be specifically justified and that unstated or untimely grounds for objection are ordinarily waived.
13. The first and second sentences of the second paragraph of Rule 34(b) are amended to read as follows:
The party upon whom the request has been served shall serve a written response within 30 days after the service of the request, except that a defendant must serve answers or objections within 30 days after the service of the interrogatories upon him or within 45 days after the summons and complaint have been served upon him, whichever is longer. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties subject to Rule 29.
The Reporter's Notes accompanying Rule 34 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: The first and second sentences of the second paragraph of Rule 34(b) have been amended to track Rule 33(b)(3). In accordance with the prior version of Rule 34(b), the court may shorten or lengthen the time for responding to interrogatories. New language expressly permits the parties to extend or shorten the response time by written agreement, a modification in discovery procedures that is permissible under Rule 29.
14. The first sentence of subdivision (a) of Rule 35 is amended to read as follows:
When the mental or physical condition (including the blood group) of a party, or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician or a mental examination by a physician or a psychologist or to produce for the examination the person in his custody or legal control.
Subdivision (b) of Rule 35 is amended by revising the caption to read "Report of Examining Physician or Psychologist" and by adding the words "or psychologist" after the word "physician" at each point that the latter appears in paragraphs (1) and (2). The clause preceding the semicolon in the first sentence of subdivision (c) of Rule 35 is amended to read as follows:
Where a party relies upon his physical, mental or emotional condition as an element of his claim or defense, he shall, within 30 days after the request of any other party, execute an authorization to allow such other party to obtain copies of his medical records;
The Reporter's Notes accompanying Rule 35 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: Subdivision (a) has been amended to permit the appointment of psychologists to conduct mental examinations, and subdivision (b) has been revised to reflect this change. As amended, the Arkansas rule is similar to the version of the corresponding federal rule that was in effect from 1988 to 1991. The current federal rule is broader, allowing physical or mental examinations "by a suitably licensed or certified examiner." Because the impact of such an expansive provision at the state level could be considerable, only an incremental step — i.e., permitting mental examinations by psychologists — has been taken at this time, and that step is consistent with Arkansas practice. Under Rule 702 of the Arkansas Rule of Evidence, a psychologist may testify as an expert about the mental condition of a party or other person. See, e.g., Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993) (divorce); Walker v. Walker, 262 Ark. 648, 559 S.W.2d 716 (1978) (child custody). It makes little sense, therefore, to preclude a psychologist from conducting an examination pursuant to Rule 35. Moreover, psychologists are trained to conduct mental examinations, which are a routine, widely accepted part of the practice of psychology in both forensic and non-forensic settings.
The amendment to subdivision (c) imposes a 30-day deadline for responding to a request for an authorization to obtain copies of a party's medical records. A companion change in Rule 37(a) provides for a motion to compel if the authorization is not provided in a timely manner.
15. Rule 37 is amended by revising paragraphs (2)-(4) of subdivision (a) to read as follows:
(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested, or fails to permit inspection as requested, or if a party, in response to a request under Rule 35(a), fails to provide an appropriate medical authorization, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion shall include a statement that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
(3) Evasive or Incomplete Answer or Response. For purposes of this subdivision, an evasive or incomplete answer or response is to be treated as a failure to answer or respond.
(4) Expenses and Sanctions. (A) If the motion is granted or if the requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them, to pay to the moving party the reasonable expenses incurred in making the motion, including attorneys' fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the discovery without court action, or that the opposing party's response or objection was substantially justified or that other circumstances make an award of expenses unjust.
(B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorneys' fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
(C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
Rule 37 is amended further by adding the following between the first and second sentences of the first paragraph of subdivision (d):
Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a statement that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action.
The Reporter's Notes accompanying Rule 37 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: The major change in this rule appears in paragraph (2) of subdivision (a) and corresponds to an amendment to Rule 26(c). Under paragraph (2), a party moving to compel discovery must state in the motion, subject to Rule 11, that it has attempted to resolve the dispute informally before seeking judicial intervention. Another change corresponds to an amendment to Rule 35(a) establishing a 30-day deadline for responding to a request for authorization to obtain medical records. As amended, paragraph (2) provides for a motion to compel if the authorization is not provided in a timely manner. In addition, the last sentence of paragraph (2) has been moved to paragraph (4).
Under revised paragraph (3) of subdivision (a), evasive or incomplete disclosures and responses to interrogatories and production requests are treated as failures to disclose or respond. Interrogatories and requests for production should not be read or interpreted in an artificially restrictive or hypertechnical manner to avoid disclosure of information fairly covered by the discovery request, and to do so is subject to appropriate sanctions.
Paragraph (4) of subdivision (a) has been divided into three subparagraphs for ease of reference, and in each the phrase "after opportunity for hearing" has been changed to "after affording an opportunity to be heard" to make clear that the court can consider such questions on written submissions as well as on oral hearings. Subparagraph (A) has been revised to cover the situation in which information that should have been produced without a motion to compel is produced after the motion is filed but before a hearing. It also provides that a party should not be awarded expenses for filing a motion that could have been avoided by conferring with opposing counsel. Subparagraph (C) has been amended to include the provision formerly contained in subdivision (a)(2) with respect to protective orders and to include the same requirement of an opportunity to be heard that is specified in subparagraphs (A) and (B).
Under revised subdivision (d), a party seeking discovery via interrogatory or production request must make an attempt to obtain responses before filing a motion for sanctions. The last sentence has been amended to clarify that it is the pendency of a motion for protective order that may be urged as an excuse for a violation of the subdivision. If a motion has been denied, the party cannot argue that its subsequent failure to comply would be justified. In this connection, it should be noted that the filing of a motion under Rule 26(c) is not self-executing. The relief authorized under that rule depends on obtaining the court's order to that effect.
16. Rule 54 is amended by adding new subdivision (e) as follows:
(e) Attorneys' Fees. (1) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.
(2) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute or rule entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which the claim is made.
(3) On request of a party or class member, the court shall afford an opportunity for adversary submissions with respect to the motion in accordance with Rule 43(c) or Rule 78. The court may determine issues of liability for fees before receiving submissions bearing on issues of evaluation of services for which liability is imposed by the court. The court shall find the facts and state its conclusions of law, and a judgment shall be set forth in a separate document as provided in Rule 58.
(4) The court may refer issues relating to the value of services to a special master under Rule 53 without regard to the provisions of subdivision (b) thereof.
(5) The provisions of subparagraphs (1) through (4) do not apply to claims for fees and expenses as sanctions for violations of these rules.
The Reporter's Notes accompanying Rule 54 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: New subdivision (e) establishes a procedure for presenting claims for attorney's fees, a frequently recurring form of litigation not initially contemplated by the rules. It is based on federal Rule 54(d)(2), as amended in 1993.
Paragraph (1) makes plain that the subdivision does not apply to attorneys' fees recoverable as an element of damages, as when sought under the terms of a contract. Such damages typically are to be claimed in a pleading and may involve issues to be resolved by a jury. Paragraph (2) provides a deadline for motions for attorneys' fees — 14 days after final judgment unless the court or a statute specifies some other time. Prior law did not prescribe any specific time limit on claims for attorneys' fees. See Marsh McLennan v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).
One purpose of this provision is to assure that the opposing party is informed of the claim before the time for appeal has elapsed. Prompt filing affords an opportunity for the court to resolve fee disputes shortly after trial, while the services performed are freshly in mind. It also enables the court in appropriate cases to make its ruling on a fee request in time for any appellate review of a dispute over fees to proceed at the same time as review on the merits.
Filing a motion for fees under subdivision (e) does not affect the finality or appealability of a judgment. If an appeal on the merits of the case is taken, the court may rule on the claim for fees, defer its ruling on the motion, or deny the motion without prejudice and direct under paragraph (2) a new period for filing after the appeal has been resolved. A notice of appeal does not extend the time for filing a fee claim based on the initial judgment, but the court may effectively extend the period by permitting claims to be filed after resolution of the appeal. A new period for filing will automatically begin if a new judgment is entered following a reversal or remand by the appellate court or the granting of a motion under Rule 59.
The new subdivision does not require that the motion for attorneys' fees be supported at the time of filing with the evidentiary material bearing on the fees. This material must be submitted in due course, according to such schedule as the court may direct in light of the circumstances of the case. What is required is the filing of a motion sufficient to alert the adversary and the court that there is a claim for fees and the amount of such fees or a fair estimate.
If directed by the court, the moving party is required to disclose any fee agreement, including those between attorney and client, between attorneys sharing a fee to be awarded, and between adversaries made in partial settlement of a dispute where the settlement must be implemented by court action, as required by Rule 23 and similar provisions. This subdivision does not affect the practice in class action cases whereby claims for fees are presented in advance of hearings to consider approval of the proposed settlement, since the court is permitted to require submissions of fee claims in advance of the entry of judgment.
Paragraph (3) assures the parties of an opportunity to make an appropriate presentation with respect to issues involving the evaluation of legal services. In some cases, an evidentiary hearing may be needed, but this is not required in every case. The amount of time to be allowed for the preparation of submissions both in support of and in opposition to awards should be tailored to the particular case. The court is expressly authorized to make a determination of the liability for fees before receiving submissions by the parties bearing on the amount of an award. this option may be appropriate in actions in which the liability issue is doubtful and the evaluation issues are numerous and complex.
The court may order disclosure of additional information, such as that bearing on prevailing local rates or on the appropriateness of particular services for which compensation is sought. On rare occasion, the court may determine that discovery would be useful to the parties. Fee awards should be made in the form of a separate judgment under Rule 58 since such awards are subject to appellate review. To facilitate such review, paragraph (3) requires the court to set forth its findings of fact and conclusions of law. It is anticipated that this explanation will be quite brief in most cases.
Paragraph (4) authorizes the court to refer issues regarding the amount of a fee to a master under Rule 53. This authorization eliminates any controversy as to whether such references are permitted under Rule 53(b) as "matters of account and difficult computation of damages." Paragraph (5) excludes from this rule the award of fees as sanctions for violations of these rules.Arkansas Rules of Appellate Procedure — Civil
1. Subdivision (e) of Rule 3 is amended by revising the last sentence to read as follows:
The notice shall also contain a statement that the appellant has ordered the transcript, or specific portions thereof, and has made any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510(c).
The Reporter's Notes accompanying Rule 3 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: The last sentence of subdivision (e) has been revised to require an appellant to state, in the notice of appeal, that he or she not only has ordered the transcript or relevant portions thereof, but also has made the necessary financial arrangements with the court reporter for its preparation. By statute, the court reporter's duty to transcribe and certify the record "may be conditioned upon the payment, when requested by the court reporter, of up to fifty percent (50%) of the estimated cost of the transcript." Ark. Code Ann. § 16-13-510(c). The amendment is intended to eliminate delay that occurred under the previous version of the rule when a lawyer stated in the notice of appeal that he had ordered the transcript but the court reporter did not begin work because payment had not been received or financial arrangements made.
2. The following new rule is adopted:
Rule 11.
CERTIFICATION BY PARTIES AND ATTORNEYS; FRIVOLOUS APPEALS; SANCTIONS
(a) The filing of a brief, motion or other paper in the Supreme Court or the Court of Appeals constitutes a certification of the party or attorney that, to the best of his knowledge, information and belief formed after reasonable inquiry, the document is well grounded in fact; is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and is not filed for an improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. A party or an attorney who files a paper in violation of this rule, or party on whose behalf the paper is filed, is subject to a sanction in accordance with this rule.
(b) The Supreme Court or the Court of Appeals shall impose a sanction upon a party or attorney or both for (1) taking or continuing a frivolous appeal or initiating a frivolous proceeding, (2) filing a brief, motion, or other paper in violation of subdivision (a) of this rule, (3) prosecuting an appeal for purposes of delay in violation of Rule 6-2 of the Rules of the Supreme Court and Court of Appeals, and (4) any act of commission or omission that has an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. For purposes of this rule, a frivolous appeal or proceeding is one that has no reasonable legal or factual basis.
(c) Sanctions that may be imposed for violations of this rule include, but are not limited to, dismissal of the appeal; striking a brief, motion, or other paper; awarding actual costs and expenses, including reasonable attorneys' fees; imposing a penalty payable to the court; awarding damages attributable to the delay or misconduct; and, where there has been delay, advancing the case on the docket and affirming.
(d) A party may by motion request that a sanction be imposed upon another party or attorney pursuant to this rule, or the court may impose a sanction on its own initiative. A motion shall be in the form required by Rule 2-1 of the Rules of the Supreme Court and Court of Appeals, with citations to the record where appropriate, and will be called for submission three weeks after filing. The opposing party may file a response within 21 days of the filing of the motion. If the court on its own initiative determines that a sanction may be appropriate, the court shall order the party or attorney to show cause in writing why a sanction should not be imposed on the party or attorney or both.
The following Reporter's Notes to accompany Rule 11 are adopted:
Reporter's Notes to Rule 11: This rule, added in 1996, addresses frivolous appeals and other misconduct, topics that were heretofore not covered by these rules. The Supreme Court has held that Rule 11 of the Rules of Civil Procedure does not apply on appeal, Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995), and the Rules of the Supreme Court and the Court of Appeals deal only with specific problems, such as insufficient abstracts and appeals prosecuted for purposes of delay. In contrast, Rule 38 of the Federal Rules of Appellate procedure expressly provides for an award of "just damages and single or double costs" to the appellee if an appeal is frivolous, and two federal statutes also deal with the issue. See 28 U.S.C. §§ 1912, 1927.
Rule 11 does not follow the federal model because confusion has arisen in the federal courts as to the relationship between Rule 38 and the two statutes. Rather, the new rule is based on a proposal offered in response to the problems that have arisen under the federal provisions. See Martineau, Frivolous Appeals: The Uncertain Federal Response, 1984 Duke L.J. 845. In addition, the new rule contains a cross-reference to Rule 6-2 of the Rules of the Supreme Court and Court of Appeals, which addresses delay, and sets forth the same procedure specified in that rule.Arkansas Inferior Court Rules
1. Rule 1 is amended to read as follows:
These rules shall govern the procedure in all civil actions in the inferior courts of this state. They shall apply in the small claims division of municipal courts to the extent that they do not conflict with Small Claims Procedure Act, Ark. Code Ann. §§ 16-17-601 — 16-17-614.
The Reporter's Notes accompanying Rule 1 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: The first sentence has been amended by deleting the exception for county courts. Previously, actions brought in county court were considered to be "in the nature of special proceedings," but statutory procedures are virtually nonexistent. To fill the gap, these rules have been made applicable. The second sentence has been added to make clear proceedings in the small claims division of a municipal court are governed by Small Claims Procedure Act. These rules are applicable in such cases to the extent that they do not conflict with the act.
2. Rule 3 is amended to read as follows:
A civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing. However, an action shall not be deemed commenced as to any defendant not served with the complaint, in accordance with these rules, within 120 days of the date on which the complaint is filed, unless within that time and for good cause shown the court, by written order or docket entry, extends the time for service.
The Reporter's Notes accompanying Rule 3 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: The first sentence of the rule has been rewritten so that it is identical to Rule 3 of the Rules of Civil Procedure. The second sentence, which established a 60-day time limit for service, has been revised to make it consistent with Rule 4(i) of the Rules of Civil Procedure.
3. Rule 4 is amended to read as follows:
COMPLAINT
A complaint shall be in writing and signed by the plaintiff or his or her attorney, if any. It shall also: (a) state the names of the parties, the nature and basis of the claim, and the nature and amount of the relief sought; (b) warn the defendant to file a written answer with the clerk of the court, and to serve a copy to the plaintiff or his or her attorney, within 20 days after service of the complaint upon him; (c) warn the defendant that failure to file an answer may result in a default judgment being entered against him; (d) recite the address of the plaintiff or his or her attorney, if any; and (e) contain a proof of service form which shall be completed by the person serving the defendant.
Exhibit 4-A accompanying Rule 4 is retitled "Complaint — Form" and amended to read as follows:
COMPLAINT — FORM
____________ Court of __________, Arkansas
______________________, Plaintiff
vs. No. ______
______________________, Defendant
Plaintiff's Address: ___________________________ Nature of Claim: ___________________________ Nature and Amount of Relief Claimed: ___________________________ ___________________________ ___________________________
Date Claim Arose: ___________________________ Factual Basis of Claim: ___________________________ ___________________________ ___________________________
Plaintiff's Attorney, if any, and Address: ___________________________ ___________________________ ___________________________
__________________________ [Signature of Attorney, if any, or of Plaintiff]NOTICE TO DEFENDANT
You are hereby warned to file a written answer with the clerk of the court within 20 days after the date that you receive this complaint and to send a copy to the plaintiff or to his or her attorney. If you do not file an answer within 20 days, or if you fail to file an answer, a default judgment may be entered against you.
_____________________________ [Signature of Clerk or Judge]PROOF OF SERVICE
STATE OF ARKANSAS CITY OF _________
I, ______________, hereby certify that I served the within complaint on the defendant, ______________, at __ o'clock __.m. on ________, 19__, by [state method of service].
______________________________ [Signature and Office, if any]
Subscribed and sworn to before me this ___ day of _____, 19__. [To be completed if service is by someone other than sheriff or constable.]
______________________________ Notary Public or Court Clerk
My Commission Expires: ______________________
The Reporter's Notes accompanying Rule 4 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: The rule has been amended to require that the complaint warn the defendant that he must file a written answer within 20 days of service, with a copy to the plaintiff or his or her attorney. This change is necessary in light of the revision in Rule 6, which now requires that the answer be in writing. Previously, a defendant was permitted to appear personally in court, without filing a written answer, on the day stated in the complaint. In addition, the rule now refers to "proof of service" rather than to the "return," a change in terminology consistent with a 1996 amendment to Rule 4(g) of the Rules of Civil Procedure. Rule 4 has also been rewritten for purposes of clarity, and the accompanying form has been revised to take into account the changes made in the rule.
4. Rule 5 is amended by substituting "Service of Complaint" for "Service of Claim Form" in the caption, by substituting "complaint" for "claim form" in subdivision (a), and by revising subdivision (b) to read as follows:
(b) Proof of Service. The person serving the complaint shall promptly make proof of service thereof to the clerk of the court. Proof of service shall reflect that which has been done to show compliance with these rules. Service by one other than the sheriff or constable shall state by affidavit the time, place, and manner of service.
The Reporter's Notes accompanying Rule 5 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: The rule has been amended to replace the term "claim form" with the word "complaint." In addition, subdivision (b) now refers to "proof of service" rather than to "return," a change in terminology consistent with a 1996 amendment to Rule 4(g) of the Rules of Civil Procedure. The word "summons" in subdivision (b) has been replaced with "complaint."
5. Rule 6 is amended to read as follows:
CONTENTS OF ANSWER; TIME FOR FILING
(a) Contents of Answer. An answer shall be in writing and signed by the defendant or his or her attorney, if any. It shall also state: (1) the reasons for denial of the relief sought by the plaintiff, including any affirmative defenses and the factual bases therefor; (2) any affirmative relief sought by the defendant, whether by way of counterclaim, set-off, cross-claim, or third-party claim, the factual bases for such relief, and the names and addresses of other persons needed for determination of the claim for affirmative relief; and (3) the address of the defendant or his or her attorney, if any.
(b) Time for Filing Answer or Reply. An answer to a complaint, cross-claim, or third-party claim, and a reply to a counterclaim, shall be filed with the clerk of the court within 20 days of the date that the complaint or other pleading asserting the claim is served. A copy of an answer or reply shall also be served on the opposing party or parties in accordance with Rule 5(b) of the Rules of Civil Procedure.
Exhibit 6-A accompanying Rule 6 is retitled "Answer and Affirmative Relief — Form" and amended to read as follows:
ANSWER AND AFFIRMATIVE RELIEF — FORM
____________ Court of __________, Arkansas
______________________, Plaintiff
vs. No. ______
______________________, Defendant
Defendant's Address: ____________________________ Reasons for Denial of Plaintiff's Claim: ___________________________ Affirmative Defenses: ___________________________ ___________________________
Nature and Amount of Affirmative Relief Sought: ____________________ ____________________________
Date Affirmative Claim Arose: ____________________________
Factual Basis of
Affirmative Claim: ____________________________ ____________________________ ____________________________
Names and Addresses of Other Persons Needed for Determination of Affirmative Claim: ____________________________ ____________________________ ____________________________
Defendant's Attorney, if any, and Address: ____________________________ ____________________________
__________________________ [Signature of Attorney, if any, or of Defendant]CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing answer was served on [plaintiff or attorney for plaintiff, as appropriate] on the ____ date of _________, 19__, by [state method of service used, e.g., hand delivery, mail, commercial delivery service].
__________________________ [Signature of Defendant or Defendant's Attorney]
The Reporter's Notes accompanying Rule 6 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: Former subdivisions (a) and (b) have been collapsed into a single provision that requires a defendant to file a written answer. Under the previous version of the rule, a defendant could simply appear on the trial date without filing an formal answer, unless he intended to assert an affirmative defense or seek affirmative relief, in which case a written answer was necessary. In addition, subdivision (a) now specifies that the answer include information set out in the form accompanying the rule, which has also been revised slightly. Consistent with Rule 4, new subdivision (b) provides that an answer to a complaint, cross-claim or third-party claim, as well as a reply to a counterclaim, must be filed within 20 days after service. Former subdivision (c) created confusion in this regard by referencing Rule 12(a) of the Rules of Civil Procedure, under which a longer response time is permitted in certain situations.
6. Rule 7 is amended to read as follows:
JURISDICTION — EFFECT OF COUNTERCLAIM, CROSS-CLAIM, OR THIRD-PARTY CLAIM — TRANSFER
(a) Plaintiff's Claim Exceeds Jurisdictional Amount. If the plaintiff's claim is in an amount that exceeds the court's jurisdictional limit, the court, upon its own motion or upon motion of either party, shall dismiss the claim for lack of subject matter jurisdiction.
(b) Compulsory Counterclaim or Set-off. If a compulsory counterclaim or a set-off involves an amount that would cause the court to lose jurisdiction of the case, the court, upon its own motion or upon motion of either party, shall transfer the entire case to circuit court for determination therein as if the case had been appealed.
(c) Permissive Counterclaim, Cross-Claim, or Third-Party Claim. If a permissive counterclaim, a cross-claim, or a third-party claim involves an amount that would otherwise cause the court to lose jurisdiction of the case, the court shall disregard such counterclaim, cross-claim, or third-party claim and proceed to determine the claim of the plaintiff.
The Reporter's Notes accompanying Rule 7 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: Former subdivisions (a) and (b) have been redesignated as subdivisions (b) and (c), respectively, and have been reworded to reflect the terminology of the Rules of Civil Procedure. New subdivision (a) requires the court to dismiss for lack of subject matter jurisdiction if the plaintiff's claim exceeds the jurisdictional amount, which is presently $3,000. Previously, the court could transfer the case to circuit court in this situation. Bonnell v. Smith, 322 Ark. 141, 908 S.W.2d 74 (1995).
7. Subdivision (a) of Rule 8 is amended to read as follows:
By Default. When a party has failed to file an answer or reply within the time specified by Rule 6(b), a default judgment may be rendered against him.
The Reporter's Notes accompanying Rule 8 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: Subdivision (a) has been amended to take into account the requirement, imposed by amended Rule 6(a), that a formal answer be filed. The previous version provided for a default judgment if the defendant did not appear in court on the trial date. The subdivision has also been revised to correct the cross-reference and to make plain that it applies to any party against whom affirmative relief has been sought.
8. The second sentence of subdivision (b) of Rule 9 is divided into two sentences to read as follows:
It shall be the duty of the clerk to prepare and certify such record when requested by the appellant and upon payment of any fees authorized by law therefor. The appellant shall have the responsibility of filing such record in the office of the circuit clerk.
The Reporter's Notes accompanying Rule 9 are amended by adding the following:
Addition to Reporter's Notes, 1997 Amendment: The second sentence of subdivision (b) has been divided into two sentences and revised to make clear that the clerk's duty to prepare and certify the record for an appeal is conditioned upon the appellant's payment of any fees authorized by law. This requirement is consistent with the notion that the responsibility for perfecting an appeal rests with the appellant, not with the clerk. See Hawkins v. City of Prairie Grove, 316 Ark. 150, 871 S.W.2d 357 (1994).Arkansas Rules of Evidence
Rule 410 is amended to read as follows:
Pleas and Offers. Evidence of a plea of nolo contendere, whether or not later withdrawn, and of a plea, later withdrawn, of guilty or admission to the charge, or of an offer to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.