The opinion
Cite as 2015 Ark. App. 180
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-764
Opinion Delivered March 11, 2015
TERRANCE WILLIAMS and JOYCE APPEAL FROM THE JEFFERSON
MULLEN COUNTY CIRCUIT COURT
APPELLANTS [No. CV-2013-237-2]
V. HONORABLE ROBERT H. WYATT,
JR., JUDGE
STANT USA CORP., and LANETTA
PLUNKETT and EDDIE POWERS
JOHN DOES 1-10
APPELLEES AFFIRMED AS MODIFIED
LARRY D. VAUGHT, Judge
Appellants Terrance Williams and Joyce Mullen appeal the Jefferson County Circuit
Court’s dismissal with prejudice of their employment-discrimination and retaliation claims
against appellee Stant USA Corp. (“Stant”). We affirm the dismissal with prejudice of Williams’s
claims and Mullen’s discrimination claim. We affirm the dismissal of Mullen’s retaliation claim
but modify the dismissal to be without prejudice.
Terrence Williams filed this lawsuit against Stant, two individual defendants, and ten
unnamed John Doe defendants, alleging race discrimination and retaliation under the Arkansas
Civil Rights Act (ACRA), as codified at Arkansas Code Annotated section 16-123-105 et seq.,
and common-law defamation. This complaint was never timely served on Stant. Williams filed
an amended complaint that added a second plaintiff, Joyce Mullen. Williams’s claims remained
the same, and Mullen alleged race discrimination and retaliation under the ACRA. Stant moved
Cite as 2015 Ark. App. 180
to dismiss for failure to obtain timely service under Rule 4(i), arguing that neither the original
complaint nor the amended complaint was served within 120 days from the date of filing.1 The
court granted the motion and dismissed all of Williams’s claims and Mullen’s discrimination
claim with prejudice because the applicable statutes of limitations had run on those claims.2 The
court then dismissed Mullen’s retaliation claim for failure to obtain timely service, but noted that
the limitations period as to this claim had not yet run. The circuit court ordered that the
dismissal of Mullen’s retaliation claim be with prejudice because Mullen had filed a separate
federal lawsuit against the same defendants on the same set of facts alleging discrimination and
retaliation under federal law. The dismissal order stated that Stant was the only remaining
defendant and the dismissal of Stant therefore required dismissal of the entire action.3 Appellants
filed a timely notice of appeal. The only issue on appeal is whether the circuit court erred in
mandating that all claims should be dismissed with prejudice rather than without prejudice.
“[We] review a circuit court’s factual conclusions regarding service of process under a
clearly erroneous standard, but when a complaint is dismissed on a question of law, we conduct
a de novo review.” McMahan v. Ark. Dep’t of Human Servs., 2014 Ark. App. 590, at 5, 446 S.W.3d
640, 642. Service of valid process is necessary to give a circuit court jurisdiction over a
defendant. Jones v. Turner, 2009 Ark. 545, 354 S.W.3d 57. As statutory service requirements are
1
Appellants admit on appeal that they failed to timely serve Stant.
2
Appellants have not challenged, either at the circuit court or on appeal, the finding that
the relevant limitations periods had expired. Therefore, the issue is not before us.
3
The two individual defendants had been previously dismissed, and all claims against the
unserved John Doe defendants were automatically dismissed by the circuit court’s final judgment
pursuant to Rule 54(b)(5) of the Arkansas Rules of Civil Procedure.
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in derogation of common-law rights, they must be strictly construed, and compliance with them
must be exact. McMahan, 2014 Ark. App. 590, at 4–5, 446 S.W.3d at 642. The same reasoning
applies to service requirements imposed by court rules. Id., 446 S.W.3d at 642. Our service rules
place “an extremely heavy burden on the plaintiff to demonstrate that compliance with those rules
has been had.” Brown v. Ark. Dep’t of Human Servs., 2013 Ark. App. 201, at 4 (citing Dobbs v.
Discover Bank, 2012 Ark. App. 678, at 8, 425 S.W.3d 50, 55 (emphasis in original)).
Appellants argue that the circuit court erred in dismissing Williams’s ACRA and
common-law claims and Mullen’s ACRA discrimination claim with prejudice. Their only
argument on appeal is that the circuit court should have dismissed the claims without prejudice
to avoid the risk that the dismissals may be res judicata to their pending federal claims. This
argument is wholly without merit. It is undisputed on appeal that (1) appellants’ complaint and
amended complaint raised only state-law claims, (2) the claims were not served on Stant within
120 days, and (3) the applicable statutes of limitations had run on these claims at the time of
dismissal. Rule 4(i) of the Arkansas Rules of Civil Procedure provides in pertinent part:
(i) Time Limit for Service: If service of the summons is not made upon a
defendant within 120 days after filing of the complaint, the action shall be dismissed as
to that defendant without prejudice upon motion or upon the court’s initiative. If a
motion to extend is made within 120 days of the filing of the suit, the time for service
may be extended by the court upon a showing of good cause . . .
The Arkansas Supreme Court has repeatedly held that Rule 4(i) must be read in light of other
procedural rules, such as the statute of limitations. McCoy v. Montgomery, 370 Ark. 333, 337, 259
S.W.3d 430, 433 (2007); Bodiford v. Bess, 330 Ark. 713, 715, 956 S.W.2d 861, 862 (1997); Green
v. Wiggins, 304 Ark. 484, 489, 803 S.W.2d 536, 539 (1991). “[T]he dismissal without prejudice
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language [in Rule 4(i)] does not apply if the plaintiff’s action is otherwise barred by the running
of a statute of limitations.” McCoy, 370 Ark. at 337, 259 S.W.3d at 433–34. Therefore, the circuit
court properly dismissed appellants’ ACRA and tort claims with prejudice.4
Next, Mullen argues that the circuit court erred in dismissing her retaliation claim with
prejudice. As with the other claims, it was dismissed for failure to serve Stant within 120 days.
However, it is undisputed that the statute of limitations had not yet run on Mullen’s retaliation
claim at the time of dismissal. The circuit court stated that it was dismissing Mullen’s retaliation
claim with prejudice because she had already filed a federal lawsuit against the same defendants
regarding the same subject matter, and the federal case was currently pending at the time of
dismissal. Mullen argues that the pending federal lawsuit provided no legal basis for transforming
a Rule 4(i) dismissal, which would normally be without prejudice, into a with-prejudice dismissal.
We agree.
In Baptist Health v. Murphy, 2010 Ark. 358, at 8, 373 S.W.3d 269, 278, our supreme court
explained that “[i]t is well settled that federal district courts and state courts are separate
jurisdictions, and identical cases between the same parties can proceed simultaneously.” The
circuit court relied upon Rule 12(b)(8) of the Arkansas Rules of Civil Procedure in dismissing
Mullen’s retaliation claim with prejudice. Our supreme court has directly addressed this issue and
ruled that Rule 12(b)(8) only applies when identical claims are pending in two state courts.
4
We have no authority to determine how a federal court will evaluate the circuit court’s
dismissal of these claims. Appellants’ arguments regarding res judicata are not before us and
would more appropriately be aimed at the federal court. Under our well-settled precedents, the
circuit court properly dismissed Williams’s ACRA claims, Williams’s defamation claim, and
Mullen’s ACRA discrimination claim with prejudice.
4
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InNational Bank of Commerce v. Dow Chemical Company, 327 Ark. 504, 507, 938 S.W.2d 847, 849
(1997), the court explained,
Rule 12(b)(8) does not confer any discretion upon an Arkansas court confronted
with a motion to dismiss when the same action is pending between identical parties in
a different “jurisdiction,” such as a federal court or the court of another state. In such a
case, as in this case, it is enough to say Rule 12(b)(8) simply does not apply. We must
therefore, conclude that the trial court lacked authority to dismiss the state action without
prejudice.
Id. Therefore, because Rule 12(b)(8) is inapplicable to this case and would provide no basis for
dismissal, it also provides no basis for transforming a non-prejudicial dismissal into one with
prejudice.
Stant argues that appellants filed their federal claim solely to avoid the consequences of
the state-court dismissal and that it should not be burdened with the expense of defending
Mullen’s retaliation claim in both state and federal court. However, they provide no legal
authority supporting either argument and provide us with no legal basis for affirming the with-
prejudice dismissal. As the court made clear in Baptist, supra, identical cases may simultaneously
proceed in state and federal courts, meaning that defendants may be required to simultaneously
defend both suits. Without a legal basis for deviating from the plain language of Rule 4(i), which
mandates a dismissal without prejudice, the circuit court’s dismissal with prejudice of Mullen’s
retaliation claim was clear error. Accordingly, we correct the circuit court’s dismissal order and
judgment to reflect that Mullen’s retaliation claim under the ACRA is dismissed without
prejudice.
Affirmed as modified.
HARRISON and WHITEAKER, JJ., agree.
Sutter & Gilliham, P.L.L.C., by: Luther Oneal Sutter, for appellants.
Law Offices of Cary Schwimmer, by: Cary Schwimmer; and Ramsay, Bridgforth, Robinson & Raley
LLP, by: Spencer F. Robinson, for appellee.
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