Does Arkansas require process servers to be licensed?
Varies by county. Visit ServeNow.com’s Become a Process Server page for more information.
Who can be a process server in Arkansas?
The administrative judge of a judicial district, or any circuit judge(s) designated by the administrative judge, may issue an order appointing an individual to make service of process pursuant to Arkansas Rule of Civil Procedure 4(c)(2) in cases pending in each county of the district wherein approval has been granted. The appointment shall be effective for every division of circuit court, and for every district court, in the county.
Any adult appointed pursuant to Administrative Order No. 20. One has to be over the age of eighteen (18) years old, that has a high school diploma or equivalent, that has not have been convicted of a crime punishable by imprisonment for more than one (1) year or a crime involving dishonesty or false statement, regardless of the punishment, that holds a valid driver's license from one of the United States, and demonstrates familiarity with the various documents to be served may serve the papers.
Each judicial district may, with the concurrence of all the circuit judges in that district, prescribe additional qualifications.
Arkansas Rules of Civil Procedure
Please note that the laws concerning civil procedure and process serving can change. Therefore the information listed below may have been amended. For updated process serving legislation, please visit the Arkansas State Legislature website.
Rule 5. Service and filing of pleadings and other papers
Rule 4. Summons
(a) Issuance.
Immediately on the filing of the complaint, the clerk shall issue a summons to the plaintiff or the plaintiff’s attorney, who shall deliver it for service to a person authorized by subdivision (c) of this rule to serve process.
(b) Form.
The summons shall be styled in the name of the court and issued under its seal, dated and signed by the clerk or a deputy clerk, and directed from the State of Arkansas to the defendant to be served. It shall contain: (1) in its caption, the names of the plaintiff and defendant or, if there are multiple parties, the names of the plaintiff and defendant listed first in the complaint; (2) the address of the defendant to be served, if known; (3) the name and address of the plaintiff’s attorney, if any, otherwise the address of the plaintiff; (4) the time within which these rules require that the defendant to be served must appear, file a responsive pleading or motion, and defend; and (5) notice that the defendant’s failure to appear, respond, and defend within the time allowed may result in entry of judgment by default against the defendant for the relief demanded in the complaint. [In accordance with the amendments to Rule 12(a), the form for summons issued pursuant to this subsection has been amended and can be found at https://www.arcourts.gov/aoc/forms.]
(c) Process: Defined; By Whom Served.
(1) For purposes of this rule, the term “process” means the summons and a copy of the complaint, which shall be served together. The plaintiff or the plaintiff’s attorney shall furnish the person making service with as many copies as are necessary.
(2) The following persons are authorized to serve process: (A) the sheriff of the county where the service is to be made, or his or her deputy, unless the sheriff is a party to the action; (B) any person appointed pursuant to Administrative Order No. 20 for the purpose of serving summons by either the court in which the action is filed or a court in the county in which service is to be made; (C) any person authorized to serve process under the law of the place outside this state where service is made; and (D) in the event of service by mail or commercial delivery company pursuant to subdivision (g)(1) and (2) of this rule, the plaintiff or an attorney of record for the plaintiff.
(d) Proof of Service.
The person effecting service shall make proof of service to the clerk within the time during which the person served must respond to the summons. Failure to make proof of service, however, shall not affect the validity of service.
(1) Proof of service may be made by executing a certificate of service 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 certificate shall be sworn. If service has been by mail or commercial delivery company, the person making service shall attach a return receipt, envelope, affidavit, acknowledgment, or other writing required by subdivision (g)(1) and (2) of this rule.
(2) If service is made by warning order, proof of service shall be made as provided in subdivision (g)(3) of this rule.
(3) Proof of service in a foreign country, if effected pursuant to the provisions of a treaty or convention as provided in subdivision (h)(4) of this rule, shall be made in accordance with the applicable treaty or convention.
(e) Amendment.
At any time in its discretion and on terms as it deems just, the court may allow any summons or proof of service to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the summons is issued.
(f) Personal Service Inside the State.
Service of process shall be made inside the state as follows:
Natural Persons: If the defendant is a natural person at least 18 years of age or emancipated by court order, by:
(A) delivering a copy of the process to the defendant personally, or if he or she refuses to receive it after the process server makes his or her purpose clear, by leaving the papers in close proximity to the defendant; (B) leaving the process with any member of the defendant’s family at least 18 years of age at a place where the defendant resides; or (C) delivering the process to an agent authorized by appointment or by law to receive service of summons on the defendant’s behalf.
Minors: If a defendant is less than 18 years of age and has not been emancipated by court order, by delivering the process to the defendant’s father, mother, or guardian or, if there be none in the state, to any person at least 18 years of age in whose care or control the minor may be or with whom the minor resides.
Incapacitated Persons: If a plenary, limited, or temporary guardian has been appointed for an incapacitated person, or if a conservator has been appointed for a person who by reason of advanced age or physical disability is unable to manage his or her property, service shall be on the person and the guardian or conservator.
Incarcerated Persons: Service on a person incarcerated in any jail, penitentiary, or other correctional facility in this state shall be on the administrator of the institution, who shall promptly deliver the process to the incarcerated person. A copy of the process shall also be sent to the incarcerated person by first-class mail and marked as “legal mail” and, unless the court otherwise directs, to his or her spouse, if any.
Corporations: Service on any corporation, including nonprofit corporations, professional corporations, and cooperatives, shall be on its registered agent for service of process, or the agent’s secretary or assistant; any officer of the corporation, or the officer’s secretary or assistant; a managing or general agent of the corporation, or the agent’s secretary or assistant; any agent authorized by appointment or by law to receive service of process; or as provided by an applicable statute.
Limited Liability Companies: Service on a limited liability company shall be on its registered agent for service of process, or the agent’s secretary or assistant; a manager of a limited liability company in which management is vested in managers rather than members, or the manager’s secretary or assistant; a member of a limited liability company in which management is vested in the members or in which management is vested in managers and there are no managers, or that member’s secretary or assistant; a managing or general agent of the limited liability company, or the agent’s secretary or assistant; any agent authorized by appointment or by law to receive service of process; or as provided by an applicable statute.
Partnerships: Service on any type of partnership, including a general partnership, a limited liability partnership, a limited partnership, and a limited liability limited partnership, shall be on any general partner or his or her secretary or assistant; the partnership’s registered agent for service of process, or the agent’s secretary or assistant; a managing or general agent of the partnership, or the agent’s secretary or assistant; any agent authorized by appointment or by law to receive service of process; or as provided by an applicable statute.
Unincorporated Associations: Service on an unincorporated association subject to suit under its own name, except a partnership, shall be on its registered agent for service of process, or the agent’s secretary or assistant; any manager of the association, or the manager’s secretary or assistant; any agent authorized by appointment or by law to receive service of process; or as provided by an applicable statute.
Defendant Class Actions: Service on a defendant class shall be on each of the parties named as class representatives in the same manner as if each representative were sued in a separate action.
Trusts: Service on a trust shall be on a trustee of the trust, on the trustee’s secretary or assistant, or as provided by statute.
The United States: Service on the United States or any of its agencies, officers, or employees shall be as authorized by the Federal Rules of Civil Procedure or by other federal law.
States and State Agencies: Service on a state or any of its agencies, departments, boards, or commissions subject to suit shall be on the chief executive officer, director, or chairman, any other person designated by appointment or by an applicable statute to receive service of process, or on the Attorney General of the state if service is accompanied by an affidavit of a party or the party’s attorney that the officer or designated person is unknown or cannot be located.
Municipal Corporations: Service on a municipal corporation shall be on the mayor, city manager, city administrator, or city clerk.
Counties: Service on a county shall be on the county judge, county administrator, county clerk, or circuit clerk if no county clerk has been elected.
School Districts: Service on a school district shall be on the president of the board of directors, or the superintendent of schools.
Other Political Subdivisions: Service on any political subdivision, special district, or quasi-municipal agency not listed in this subdivision shall be on any officer, director, chairman, or manager.
Public Officers or Employees: Service on an officer or employee of a government entity listed in paragraphs (12)–(16) of this subdivision, acting in an official capacity, shall be on the officer or employee and by mailing a copy of the process as specified in subdivision (g)(1)(A)(i) of this rule to an official on whom service can be made pursuant to paragraphs (12)–(16), as applicable, and a copy to the Attorney General if a state officer or employee is sued.
(g) Alternative Methods of Service.
In addition to the methods of service described in subdivision (f) of this rule, process may be served on any defendant except the United States and any of its agencies, officers, or employees by the methods enumerated in this subdivision.
Service by Mail
The plaintiff or an attorney of record for the plaintiff shall serve process by mail only as provided in this paragraph.
(A)(i) Certified mail shall be addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. The addressee must be a natural person specified by name, and the agent of the addressee must be authorized in accordance with U.S. Postal Service regulations. Notwithstanding the foregoing, service on the registered agent of a corporation or other organization may be made by certified mail with a return receipt requested.
(ii) Service pursuant to this paragraph (A) shall not be the basis for the entry of a judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document, or affidavit by a postal employee reciting or showing refusal of the mailed process by the addressee. Failure to claim mail does not constitute refusal for purposes of this paragraph.
(iii) If delivery of mailed process is refused, the plaintiff or attorney making service, promptly on receipt of notice of the refusal, shall mail to the defendant by first-class mail a copy of the process and a notice that despite the refusal the case will proceed and that judgment by default may be entered for the relief demanded in the complaint unless the defendant appears to defend the suit.
(iv) A judgment by default may be set aside pursuant to Rule 55(c) if the addressee demonstrates to the court that the return receipt was signed or delivery was refused by someone other than the addressee or the agent of the addressee.
(B)(i) First-class mail, postage prepaid, shall be addressed to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to a form adopted by the Supreme Court and a return envelope, postage prepaid, addressed to the sender.
(ii) If no acknowledgment of service is received by the sender within 20 days after the date of mailing, service of process shall be made in a manner other than by mail or by commercial delivery company.
(iii) Unless good cause is shown for not doing so, the court shall order the payment of the costs of service by the person served if that person does not complete and return, within 20 days after mailing, the notice and acknowledgment of receipt of summons. The notice and acknowledgment of receipt of process shall be executed under oath or affirmation.
Service by Commercial Delivery Company
The plaintiff or an attorney of record for the plaintiff shall serve process by commercial delivery company only as provided in this paragraph.
(A) The documents must be addressed to the person to be served and delivered by a commercial delivery company that (1) obtains signatures of recipients, (2) maintains permanent records of actual delivery, and (3) has been approved by the circuit court in which the action is filed or in the county where service is to be made.
(B) The process must be delivered to the defendant or an agent authorized to receive service of process on behalf of the defendant. The signature of the defendant or agent must be obtained.
(C)(i) Service pursuant to this paragraph (2) shall not be the basis for a judgment by default unless the record reflects actual delivery on, and the signature of, the defendant or agent, or an affidavit by an employee of an approved commercial delivery company reciting or showing refusal of the process by the defendant or agent.
(ii) If delivery of process is refused, the plaintiff or attorney making the service, promptly on receipt of notice of the refusal, shall mail to the defendant by first class mail a copy of the process and a notice that despite the refusal the case will proceed and that judgment by default may be entered for the relief demanded in the complaint unless the defendant appears to defend the suit.
(iii) Any judgment by default may be set aside pursuant to Rule 55(c) if the court finds that someone other than the defendant or agent signed the receipt or refused the delivery or that the commercial delivery company had not been approved as required by this paragraph.
Service by Warning Order
If the plaintiff seeks a judgment that affects or may affect the rights of persons who need not be subject personally to the jurisdiction of the court, service may be by warning order issued by the clerk. On the filing by the plaintiff or his or her attorney of an affidavit showing that, after diligent inquiry, the identity or whereabouts of the defendant remains unknown, the clerk shall issue a warning order to be published in a newspaper of general circulation as described in paragraph (B) or posted at the courthouse as provided in paragraph (C).
(A) The warning order shall state the caption of the pleadings; briefly describe the nature of the action and the relief sought; include, if applicable, a description of the property or other res to be affected by the judgment; and warn the defendant or interested person to appear within 30 days from the date of first publication of the warning order or face entry of judgment by default or be otherwise barred from asserting his or her interest.
(B)(i) The party seeking judgment shall cause the warning order to be published weekly for two consecutive weeks in a newspaper having general circulation in the county where the action is filed and to be sent, with a copy of the complaint, to the defendant or interested person at his or her last known address by certified mail as provided in paragraph (1)(A)(i) of this subdivision.
(ii) As used in this subdivision, the term “newspaper” means a printed publication in the English language of no less than four pages that has been disseminated without interruption at least once a week for the preceding 12 months in the county where the action has been filed, holds a second-class mailing permit, has at least 50-percent paid circulation, and devotes an average of 40 percent of its space to news and information of interest to the general public.
(iii) Proof of publication shall be by affidavit of the editor, proprietor, or business manager of the newspaper, with a copy of the published notice attached, stating the dates on which the notice appeared.
(C) If the party seeking judgment has been granted leave to proceed as an indigent without prepayment of costs, the clerk shall conspicuously post the warning order for a continuous period of 30 days at the courthouse or courthouses of the county where the action is filed. The party seeking judgment shall cause the warning order and a copy of the complaint to be sent to the defendant or interested person at his or her last known address by certified mail as provided in paragraph (1)(A)(i) of this subdivision. Newspaper publication of the warning order is not required. Proof of posting shall be by a letter or other statement signed by the clerk stating the location and dates on which the warning order was posted.
(D) No judgment by default shall be taken pursuant to this subdivision unless the party seeking the judgment or his or her attorney has filed with the court an affidavit stating that 30 days have elapsed since the warning order was first published or posted. The affidavit shall be accompanied by the required proof of publication or posting of the warning order. If a defendant or other interested person is known to the party seeking judgment or to his or her attorney, the affidavit shall also state that 30 days have elapsed since a letter enclosing a copy of the warning order and the complaint was mailed to the defendant or other interested person.
Service as Directed by Court Order
On motion without notice and after a showing by affidavit or other proof as the court may require that, despite diligent effort, service cannot be made by the methods authorized by this rule, the court may order service by any method or combination of methods reasonably calculated to apprise the defendant of the action, including service by warning order meeting the minimum requirements of paragraph (3)(A)-(D) of this subdivision.
(h) Service Outside the State.
Whenever the law of this state authorizes service outside this state, service, when reasonably calculated to apprise the defendant of the action, may be made: By personal delivery in the same manner prescribed for service within this state; In any manner prescribed by the law of the place in which service is made in an action in any of its courts of general jurisdiction; By mail or commercial delivery company as provided in subdivision (g)(1) and (2) of this rule; As directed by a foreign authority in response to a letter rogatory or pursuant to the provisions of any treaty or convention pertaining to the service of a document in a foreign country; By any method or combination of methods as directed by order of the court on motion, without notice and after a showing by affidavit or other proof as the court may require that, despite diligent effort, service cannot be made by the methods authorized by this rule.
(i) Time Limit for Service.
(1) If service of process is not made on a defendant within 120 days after the filing of the complaint or within the time period established by an extension granted pursuant to paragraph (2), the action shall be dismissed as to that defendant without prejudice on motion or on the court’s initiative. If service is by mail or by commercial delivery company pursuant to subdivision (g)(1) and (2) of this rule, service shall be deemed to have been made for purposes of this subdivision on the date that the process was accepted or refused.
(2) The court, on written motion and a showing of good cause, may extend the time for service if the motion is made within 120 days of the filing of the suit or within the time period established by a previous extension. To be effective, an order granting an extension must be entered within 30 days after the motion to extend is filed, by the end of the 120-day period, or by the end of the period established by the previous extension, whichever date is later.
(3) This subdivision shall not apply to service in a foreign country pursuant to subdivision (h) of this rule or to complaints filed against unknown tortfeasors.
(j) Service of Other Writs and Papers.
Whenever any rule or statute requires service upon any person, firm, corporation or other entity of notices, writs, or papers other than a summons and complaint, including without limitation writs of garnishment, such notices, writs or papers may be served in the manner prescribed in this rule for service of a summons and complaint. Provided, however, any writ, notice or paper requiring direct seizure of property, such as a writ of assistance, writ of execution, or order of delivery shall be made as otherwise provided by law.
(k) Disregard of Error; Actual Notice.
Any error as to the sufficiency of process or the sufficiency of service of process shall be disregarded if the court determines that the serving party substantially complied with the provisions of this rule and that the defendant received actual notice of the complaint and filed a timely answer.
(l) Waiver.
A party seeking to affirmatively waive sufficiency of service and sufficiency of process shall do so in writing. A waiver pursuant to this subdivision: (1) is not effective unless filed with the clerk and served on all parties as provided in Rule 5; and (2) does not of itself waive any other defense.
Addition to Reporter’s Notes, 1999 Amendment:
Subdivision©(2) has been amended by deleting the word “a” before the word “summons.” This amendment is intended to make plain that private process servers may be appointed by standing order as well as on a case-by-case basis. In addition, subdivision (e)(3) has been amended to provide that service by mail outside the state in accordance with the requirements of subdivision (d)(8), which governs service by mail inside the state. This change makes the two provisions consistent.
Addition to Reporter’s Notes, 2001 Amendment:
Subdivision (a) has been revised to provide that service may be made only by a person “authorized by this rule to serve process.” Previously, the rule allowed anyone “authorized by law” to serve process and thus incorporated statutes permitting or requiring certain persons to make service. See, e.g, Nelson v. Wakefield, 282 Ark. 285, 668 S.W.2d 29 (1984) (service on sheriff by deputy held improper in light of Ark. Code Ann. §§ 16-58-112, which provides that “in an action wherein the sheriff is a party or is interested, [process] shall be directed to the coroner or, if he is interested to some constable”).
Applying Nelson to other statutes could defeat the purpose of subdivision© of the rule, which limits service to a particular person, including a sheriff, a deputy, or a person at least 18 years of age appointed by the court. For example, Ark. Code Ann. §§ 16-58-107(2) authorizes service “[b]y any person appointed by the officer to whom the summons is directed.” This provision would allow a sheriff, deputy sheriff, or a person appointed by the court to designate someone else to serve process, a result contrary to the purpose of the subdivision©, i.e., to give the court control over private process servers. Also, paragraph (3) of the statute allows service “[b]y any person not a party to the action, in all actions arising on contract for the recovery of money only.” In such cases, no court appointment would be necessary, and even someone under 18 could make service so long as he or she were not a party. Other statutes are not as troublesome as Section 16-58-107 but are not necessary in light of Rule 4. See Ark. Code Ann. §§§§ 16-58-108, 16-58-109, 16-58-113, 16-58-118, 16-58-119. These statutes are deemed superseded, as are Sections 16-58-107 and 16-58-112.
New language in subdivision©(1) treats the problem that Section 16-58-112 was meant to address, i.e., service by a sheriff or deputy when the sheriff is a party. In that situation, neither the sheriff nor a deputy may serve process. Thus, service must be accomplished pursuant to one of the other provisions of subdivision©, e.g., by someone appointed by the court or by mail.
Addition to Reporter’s Notes, 2002 Amendment:
Subdivision©(4) has been amended to refer to service by a commercial company, an option authorized by new paragraph© of subdivision (d)(8) and discussed below. Over the years, lawyers have questioned the efficacy of service by mail under paragraph (A) of subdivision (d)(8), in part because the postal service does not always follow its own rules regarding restricted delivery mail.
Subdivision (d) has been revised to provide that service shall be made as provided in that subdivision or “upon any person designated by statute to receive service.” This provision incorporates statutes which, for example, provide for service on the registered agent of a corporation. E.g., Ark. Code Ann. §§ 4-26-503, 4-27-1510. It was deemed advisable in light of case law suggesting that Rule 4 is exclusive as to the recipients of process, despite language in subdivisions (d)(1) & (5) permitting service on an “agent authorized . . . by law to receive service of summons.” See, e.g., May v. Bob Hankins Distributing Co., 301 Ark. 494, 785 S.W.2d 23 (1990).
Subdivision (d)(4) has been amended to require the plaintiff not only to serve the superintendent of the correctional facility housing the defendant (as well as the defendant’s spouse, if any, unless the court orders otherwise), but also to send a copy of the summons and complaint, marked as “legal mail,” to the defendant by first class mail. This additional safeguard is similar to that found in substituted service statutes. E.g., Ark. Code Ann. §§ 16-58-120(b)(2)(B) (in addition to serving Secretary of State, plaintiff must mail copy of summons and complaint to defendant at last known address).
New paragraph© of subdivision (d)(8) permits service by “a commercial delivery company that (i) maintains permanent records of actual delivery and (ii) has been approved by the circuit court in which the action is filed or in the county where service is to be made.” Service of papers by commercial delivery companies under Rule 5 has been allowed for more than a decade with no apparent problem. See Rule 5(b)(2) & Addition to Reporter’s Notes, 1989 Amendment. Rule 5(b)(2) has been amended to require court approval of the commercial delivery company, a requirement imposed by new paragraph© of this rule.
Paragraph© is more restrictive than Ark. Code Ann. §§ 1-2-122(b), which allows service by “an alternative mail carrier.” The statute has thus been superseded with respect to service of process. Paragraph© contains additional safeguards similar to those found in paragraph (A) for service by mail and requires, as does subdivision©(2) with respect to service by a private person, that the commercial delivery company be approved by the circuit court of the county where the action is filed or where service is to be made. This approval may be in the form of a standing order or may be made on a case-by-case basis, as under subdivision©(2). See Addition to Reporter’s Notes to Rule 4, 1999 Amendment.
The rule has also been amended to provide uniform requirements for warning orders. Those requirements are contained in revised subdivision (f), which deals with both situations in which service by warning order is permissible, i.e., “when the identity or whereabouts of a defendant remains unknown, or if a party seeks a judgment that affects or may affect the rights of persons who are not and who need not be subject personally to the jurisdiction of the court.” Former subdivision (j) has been deleted and former subdivision (k) redesignated as subdivision (j).
Addition to Reporter’s Notes, 2003 Amendment:
Subdivision (d)(4) has been revised by replacing the phrase “confined in a state or federal penitentiary or correctional facility” with “incarcerated in any jail, penitentiary, or other correctional facility in this state.” This change makes the terminology consistent with that used in Rule 12(a), as amended in 2003.
Addition to Reporter’s Notes, 2004 Amendment:
Subdivision (d)(8)(A) of the rule has been divided into two paragraphs. In a change that reflects settled case law, paragraph (A)(i) has been rewritten to state expressly that the agent of the addressee “must be authorized in accordance with U.S. Postal Service regulations.” See Green v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989). For the applicable postal service regulations, see Domestic Mail Manual S916.
More importantly, paragraph (A)(i) has been amended to establish less onerous requirements when service is made on the registered agent of a corporation or other organization. In that situation, the new last sentence provides that service may be made by certified mail, return receipt requested. Because delivery need not be restricted, there is no requirement that the addressee be a natural person or that the agent of the addressee be authorized in accordance with postal service regulations. See generally Domestic Mail Manual S912 (certified mail), S915 (return receipt).
Addition to Reporter’s Notes, 2006 Amendment:
Subdivision (d)(8)(A) of the rule has been divided into two paragraphs. In a change that reflects settled case law, paragraph (A)(i) has been rewritten to state expressly that the agent of the addressee “must be authorized in accordance with U.S. Postal Service regulations.” See Green v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989). For the applicable postal service regulations, see Domestic Mail Manual S916.
More importantly, paragraph (A)(i) has been amended to establish less onerous requirements when service is made on the registered agent of a corporation or other organization. In that situation, the new last sentence provides that service may be made by certified mail, return receipt requested. Because delivery need not be restricted, there is no requirement that the addressee be a natural person or that the agent of the addressee be authorized in accordance with postal service regulations. See generally Domestic Mail Manual S912 (certified mail), S915 (return receipt).
Addition to Reporter’s Notes, 2006 Amendment: Rule 4(d)(4) has been amended to delete the untoward reference to the “keeper” of a jail, penitentiary, or other correctional facility. The term “administrator” has been substituted for “superintendent.”
Rule 4(i), which governs the time limit for service, has been amended to set a reasonable deadline for getting an order entered on a motion to extend time for service. In Edwards v. Sazabo Foods, 317 Ark. 369, 877 S.W.2d 932 (1994), the supreme court rejected an effort to require that both the motion for extension of time to serve and the order granting that motion must be filed within the 120-day period. This amendment leaves Edwards intact. To encourage prompt service, and discourage filing a motion to extend but not securing an order promptly, the amendment sets a deadline for the entry of that order: thirty days after the motion is filed, or the end of the 120-day period, whichever date is later. The alternative deadlines eliminate the possibility that an early motion for extension will inadvertently reduce the time allowed for extending the time for service.
Addition to Reporter’s Notes, 2007 Amendment:
New Administrative Order Number 20 prescribes minimum qualifications for private process servers appointed by the circuit courts, as well as the procedure for their appointment. The change in Rule 4(c) eliminates the one former qualification (being at least eighteen years old) and incorporates by reference the expanded qualifications contained in the new Administrative Order.
Addition to Reporter’s Notes, 2010 Amendment:
Rule 4(g) has been amended by restoring a sentence from the original rule reciting the familiar legal principle that a failure to make proof of service does not affect the validity of the service. The sentence was removed more than twenty-five years ago without explanation. Addition to Reporter’s Notes, 1983 Amendment. Since then, the supreme court and court of appeals have repeatedly reaffirmed and applied this principle. E.g., Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 562, 785 S.W.2d 220, 222 (1990); Renfro v. Air Flo Co., 91 Ark. App. 99, 101, 208 S.W.3d 807, 809 (2005). This amendment makes the rule reflect settled law.
Addition to Reporter's Notes, 2012 Amendment:
The summons form has been revised to include an "all purpose proof of service" form for service made by a sheriff, deputy sheriff, or other person (generally an appointed private process server) or, if service is by mail or commercial delivery company, the plaintiff, or an attorney for the plaintiff. See Rule 4(c). In accordance with Rule 4(g) governing proof of service, the proof of service section of the summons includes an "affidavit of service" for service made by a person other than a sheriff or deputy sheriff and a "certificate of service or return" for service made by a sheriff or deputy sheriff. The language of the summons form is also updated consistent with changes in December 2009 to the comparable federal summons form. The changes to the federal form were part of a nearly three-year-long process to clarify and simplify the language of the Federal Rules of Civil Procedure.
Addition to Reporter's Notes, 2019 Amendment
In the introduction to the summons form, the second paragraph now provides that the form “may be modified as needed in special circumstances.” It also states that “[a]dditional notices, if required, should be inserted as appropriate.” The revised form combines these sentences and adds a sentence listing examples of the notices that may be “inserted as appropriate,” including the notice of consent jurisdiction that is required by Administrative Order No. 18(6)(d)(1).
Rule 5. Service and filing of pleadings and other papers.
(a) Service: When Required.
Except as otherwise provided in these rules, every pleading and every other paper, including all written communications with the court, filed subsequent to the complaint, except one which may be heard ex parte, shall be served upon each of the parties, unless the court orders otherwise because of numerous parties. No service need be made upon parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served in the manner provided for service of summons in Rule 4. Any pleading asserting new or additional claims for relief against any party who has appeared shall be served in accordance with subdivision (b) of this rule.
In an action begun by seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim or appearance shall be made upon the person having custody or possession of the property at the time of its seizure.
(b) Service: How Made.
(c) Filing.
(d) Filing With the Judge.
The judge may permit papers or pleadings to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk. If the judge permits filing by facsimile transmission, the provisions of subdivision©(2) of this rule shall apply.
(e) Proof of Service.
Every pleading, paper or other document required by this rule to be served upon a party or his attorney, shall contain a statement by the party or attorney filing same that a copy thereof has been served in accordance with this rule, stating therein the date and method of service and, if by mail, the name and address of each person served.
Addition to Reporter’s Notes (1999):
Subdivision©(2) of this rule does not authorize the filing of judgments, decrees or orders by facsimile transmission. However, Administrative Order No. 2(b), as amended in 1999, requires any clerk’s office with a facsimile machine to “accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court.” The faxed judgment, decree or order is effective when entered by the clerk. To ensure the permanency of official court records, the original judgment, decree or order must be substituted for the facsimile copy within 14 days of transmission, but this step does not have any bearing on the effectiveness of the faxed document or the time for taking an appeal.
Addition to Reporter’s Notes, 2000 Amendment:
Subdivision©(1) of the rule has been amended to provide that discovery materials, except for requests for admission, shall not be filed with the clerk unless the court so orders. This is the practice in the federal district courts in Arkansas and in several states. See Rule 5.5(f), Rules of the U.S. District Courts for the Eastern and Western Districts of Arkansas; Rule 2-401(d)(2), Md. R. Civ. P.; Rule 191.4, Tex. R. Civ. P. Under the prior version of the rule, the filing of such materials was optional absent a court order.
Addition to Reporter’s Notes, 2002 Amendment:
Since 1989, subdivision (b)(2) has allowed service of papers, other than the summons and complaint, on attorneys via commercial delivery companies. This subdivision has been amended to allow service by this method on parties as well, but with the safeguard that the commercial delivery company be court-approved. Section 1-2-122(b) of the Arkansas Code, which allowed service by “an alternative mail carrier,” has been deemed superseded.
Subdivision (b)(2) has also been revised to provide that “service by commercial delivery company is presumptively complete upon depositing the papers with the company.” This provision parallels that for service by mail, which “is presumptively complete upon mailing.” Subdivision (b)(3), which applies when the circuit court has continuing jurisdiction, has been amended to reflect the addition of new paragraph© of Rule 4(d)(8).
Addition to Reporter’s Notes, 2005 Amendment:
Rule 5©(1) has been amended. In some counties, the county clerk serves as the ex officio clerk of the probate division of the circuit court. Ark. Code Ann. § 14-14-502(b)(2)(B). Uncertainties have arisen in these circumstances about the effect of filing a pleading or paper with the wrong clerk. A sentence has been added to subsection©(1) to make plain that, in these counties, a party complies with Rule 5 when the document is file marked by either the circuit clerk or the county clerk. Similar clarifying language has been added to Rule of Civil Procedure 3(b) (filing a complaint), Administrative Order Number 2 (clerk’s docket and filing), and Rule of Appellate Procedure-Civil 3(b) (filing a notice of appeal).
Rule 45. Subpoena.
(a) Form and Issuance.
A subpoena issued by the clerk shall be under seal, state the name of the court and the title of the action, and command each person to whom it is directed to appear and give testimony at the time and place therein specified. An attorney admitted to practice in this State, as an officer of the court, may also issue and sign a subpoena in any action pending in a court of this State in which the attorney is counsel of record.
(b) For Production of Documentary Evidence.
A subpoena issued pursuant to subdivision (d), (e), or (f) of this rule may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable or oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things.
(c) Service.
A subpoena for a trial or hearing or for a deposition may be served at any place within this State in the manner prescribed in this subdivision. A subpoena for a trial or hearing or for a deposition may be served by the sheriff of the county in which it is to served, by his deputy, or by any other person who is not a party and is not less than eighteen (18) years of age. Service shall be made by delivering a copy of the subpoena to the person named therein; provided, however, that a subpoena for a trial or hearing may be served by telephone by a sheriff or his deputy when the trial or hearing is to be held in the county of the witness’ residence. A subpoena for a trial or hearing or for a deposition may also be served by an attorney of record for a party by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or agent of the addressee.
(d) Subpoena for Trial or Hearing.
At the request of any party the clerk of the court before which the action is pending shall issue a subpoena for a trial or hearing, or a subpoena for the production at a trial or hearing of documentary evidence, signed and sealed, but otherwise in blank, to the party requesting it, who shall fill it in before service. The subpoena may also be issued by an attorney pursuant to subdivision (a) of this rule. Notice of the subpoena shall be promptly given to all parties in the manner prescribed by Rule 5(b). A witness, regardless of his county of residence, shall be obligated to attend for examination on trial or hearing in a civil action anywhere in this State when properly served with a subpoena at least two (2) days prior to the trial or hearing. The court may grant leave for a subpoena to be issued within two (2) days of the trial or hearing. The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness’ residence to the place of the trial or hearing. In the event of telephone service of a subpoena by a sheriff or his deputy, the party who caused the witness to be subpoenaed shall tender the fee prior to or at the time of the witness’ appearance at the trial or hearing. If a continuance is granted and if the witness is provided adequate notice thereof, reservice of the subpoena shall not be necessary. Any person subpoenaed for examination at the trial or hearing shall remain in attendance until excused by the party causing him to be subpoenaed or, after giving testimony, by the court.
(e) Subpoena for Taking Depositions: Place of Examination.
Upon the filing of a notice of deposition upon oral examination pursuant to Rule 30(b), the clerk of the court in which the action is pending shall, upon the request of the party giving notice, issue a subpoena in accordance with the notice. The subpoena may also be issued by an attorney pursuant to subdivision (a) of this rule. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26© and subdivision (b) of the rule. The witness must be properly served at least five (5) business days prior to the date of the deposition, unless the court grants leave for subpoena to be issued within that period. The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness’ residence to the place of the deposition.
The person to whom the subpoena is directed may, within ten (10) days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than ten (10) days after service, serve upon the attorney causing the subpoena to be issued written objection to inspection or copying of any or all of the designated materials. If objection is made, the party causing the subpoena to be issued shall not be entitled to inspect and copy the materials except pursuant to an order of the court before which the deposition may be used. The party causing the subpoena to be issued may, if objection has been made, move, upon notice to the deponent, for an order at any time before or during the taking of the deposition.
A witness subpoenaed under this subdivision may be required to attend a deposition at any place within 100 miles of where he resides, or is employed, or transacts his business in person, or at such other convenient place as is fixed by an order of court.
(f) Depositions for Use in Out-of-State Proceedings.
Any party to a proceeding pending in a court of record outside this state may take the deposition of any person who may be found within this state. A party who has filed a notice of deposition upon oral examination in an out-of-state proceeding, which complies with Rule 30(b), may file a certified copy thereof with the circuit clerk of the county in which the deposition is to be taken; whereupon, the clerk shall issue a subpoena in accordance with the notice. A deposition, including any subpoenas issued therefor, shall be subject to these rules as well as to any rule or statute creating a privilege or immunity from discovery. Any objection or motion for protective order with respect to the deposition shall be heard by a circuit judge of the county in which the deposition is to be taken.
(g) Contempt.
When a witness fails to attend in obedience to a subpoena or intentionally evades the service of a subpoena by concealment or otherwise, the court may issue a warrant for arresting and bringing the witness before the court at a time and place to be fixed in the warrant, to give testimony and answer for contempt.
Addition to Reporter’s Notes, 2000 Amendment: Subdivision (a) has been amended to permit an attorney admitted to practice in Arkansas, as an officer of the court, to issue subpoenas in Arkansas cases in which he or she is counsel of record. Cross-references to subdivision (a) have also been added to subdivisions (d) and (e) of the rule. This authority does not apply to subpoenas pursuant to subdivision (f), which governs depositions for use in out-of-state proceedings; accordingly, a subpoena under subdivision (f) may be issued only by the clerk. The phrase “admitted to practice” in amended subdivision (a) refers not only to attorneys licensed in Arkansas, but also to those admitted pro hac vice.
In 1991, the corresponding federal rule was amended to allow attorneys to issue subpoenas. See Rule 45(a)(3), Fed. R. Civ. P. The federal rule expressly provides for sanctions, including lost earnings and reasonable attorneys’ fees, against an attorney “responsible for issuance and service of a subpoena” that “impos[es] an undue burden or expense on the person subject to that subpoena.” Rule 45©(1), Fed. R. Civ. P. While a similar provision has not been added to the Arkansas rule, the courts have inherent authority to sanction attorneys who abuse their power to issue subpoenas.
The following form for subpoenas is adopted and shall be published in the notes immediately following Rule 45 in the Court Rules volume of the Arkansas Code:
Addition to Reporter’s Notes, 2001 Amendment:
Subdivision (b) of the rule has been amended to emphasize that a subpoena duces tecum is permissible only in connection with a deposition, hearing, or trial. This has always been the case under Rule 45, but a clarifying amendment was deemed advisable in light of recent cases in which lawyers have employed subpoenas to obtain documents from non-parties without a deposition. The Supreme Court has not adopted a provision authorizing a subpoena solely to compel a non-party to produce documents or submit to an inspection. Compare Rules 34© & 45(a)(1)(C), Fed. R. Civ. P.
It also appears that some attorneys construed Rule 45 as not only allowing such a subpoena, but permitting one without notice to opposing counsel. Under the amended rule, there is no doubt but that these so-called “stealth subpoenas” are improper and that notice is necessary for any subpoena. If the subpoena is issued in connection with a deposition, subdivisions (e) and (f) expressly require notice of the deposition. Moreover, a new sentence has been added to subdivision (d) requiring that notice of a subpoena for a trial or hearing “be promptly given to all parties in the manner prescribed by Rule 5(b).”
Addition to Reporter’s Notes, May 2001 Amendment:
Subdivision (f) has been amended by deleting the reference to chancery judges. Constitutional Amendment 80 established circuit courts as the “trial courts of original jurisdiction” in the state and abolished the separate chancery and probate courts.
Addition to Reporter’s Notes, 2002 Amendment: The third sentence of subdivision (f) has been amended to expressly provide that a deposition taken for use in an out-of-state proceeding is subject to the Rules of Civil Procedure, as well as to any rule or statute “creating a privilege or immunity from discovery.” Previously, this sentence stated only that the Rules applied to subpoenas issued for such depositions. Also, the last sentence of subdivision (f) has been revised to include a specific reference to motions for protective orders made with respect to the deposition pursuant to Rule 26©. The former version of this sentence mentioned only objections.
Addition to Reporter’s Notes Regarding Subpoena Form (January 2002):
This form was designed for civil cases, including probate and juvenile matters, and should not be used in criminal proceedings. It is based on the form used in the federal courts. See Form AO 88, Subpoena in a Civil Case (Rev. 1994), reprinted in 1B Federal Procedural Forms §§ 1:1270 (1999). However, it departs from the federal model as necessary to accommodate differences between the Arkansas Rules of Civil Procedure and the federal rules.
Rule 45 does not mention the form, but the Supreme Court’s order of adoption describes it as “official.” In re Arkansas Rules of Civil Procedure, 340 Ark. 731, 733 (2000). Although use of an exact reproduction of the form is not mandatory, a subpoena must include all information called for by the form. For example, the second page of the form contains a “notice to persons subject to subpoenas” intended to advise those persons of their rights and duties under Rule 45. A subpoena without this information would be subject to challenge. However, so long as the necessary information is included, use of a “home-grown” document should not be fatal.
Additional information may be included if it is not inconsistent with Rule 45 or the form itself. For instance, a subpoena issued by the clerk might contain the name, address and phone number of the attorney who requested its issuance. Other information can be added in certain spaces on the form. The division in which the case is pending may also be included along with the street address in the box labeled “place of testimony.”
On the other hand, modification of the form in such a way that distorts the controlling law or misleads the recipient is impermissible. Under Rule 45(b), for example, a subpoena duces tecum directed to a non-party is permissible only in connection with a deposition, hearing, or trial. Consequently, adding to the form a box to be checked and an accompanying statement to the effect that the recipient is commanded to permit inspection of specified documents at counsel’s office on a given date, is not permissible. By contrast, the federal form offers this option, which is available under the federal rules. See Rules 34© & 45(a)(1)(C), Fed. R. Civ. P.
Unless a statute provides a procedure different from that specified in Rule 45, the rule and the form are applicable in probate and juvenile cases. Certain probate matters – such as will contests and adoptions – are “special proceedings” within the meaning of Rule 81(a) and thus excepted from the Rules of Civil Procedure if a statute sets out a different procedure. E.g., Brantley v. Davis, 305 Ark. 68, 805 S.W.2d 75 (1991). Some juvenile matters may also be special proceedings. See Kelley v. State, 191 Ark. 848, 88 S.W.2d 65 (1935). If there is no such statute, then the rules apply. Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999).
There appears to be only one statute that uses the word “subpoena” in connection with probate cases, and it does not conflict with Rule 45. See Ark. Code Ann. §§ 5-2-317(b)(3). By statute, the Rules of Civil Procedure apply to “all proceedings” in juvenile cases “until rules of procedure for juvenile court are developed and in effect,” except as otherwise provided by the juvenile code. Ark. Code Ann. §§ 9-27-325(f). No such rules have been promulgated, and the only statute dealing with subpoenas in juvenile cases is not inconsistent with Rule 45. See Ark. Code Ann. §§ 9-27-310(e). Accordingly, the rule and the subpoena form apply in probate and juvenile proceedings.
