SCOA: Dismissal Without Prejudice Due to No Timely Service Is Unappealable

In the March 3, 2011 opinion Carroll v. Baker, 2011 Ark. 98, the Arkansas Supreme Court held that a dismissal for failure to accomplish timely service is not appealable if the plaintiff has the option to refile.

On January 7, 2010, Appellant Conray Carroll brought suit against Appellee Dawn Baker, a deputy clerk in the Pulaski County Circuit Clerk’s office. Carroll contended that his due process rights had been violated when the transcript for an appeal of an earlier suit he filed, relating to his 1997 rape conviction, was not tendered to the appellate court due to his not paying certain fees.

The 2010 lawsuit was dismissed without prejudice by the circuit court when it was not served on Baker within 120 days. Rule 4(i) of the Arkansas Rules of Civil Procedure requires service on a defendant within 120 days of the complaint being filed. Carroll appealed the dismissal.

The Arkansas Supreme Court dismissed Carroll’s appeal. Relying on the decisions Beverly Enterprises-Arkansas, Inc. v. Hillier, 341 Ark. 1, 14 S.W.3d 487 (2000) and Jordan v. Circuit Court of Lee County, 366 Ark. 326, 235 S.W.3d 487 (2006), the court concluded that a Rule 4(i) dismissal without prejudice is not an appealable order.

The Beverly Enterprises-Arkansas, Inc. decision had held that an order granting a Rule 41(a) motion for voluntary dismissal is not an appealable order. The Jordan decision had held that a Rule 4(i) dismissal is with prejudice if the plaintiff has previously gotten voluntarily dismissal of the claim.

The Carroll opinion states:

Because a plaintiff who has his case dismissed without prejudice under Rule 4(i) may refile those claims, his position after the dismissal is no different than that of a plaintiff who voluntarily nonsuits his claims. It therefore logically follows from our rationale in Jordan that a first dismissal under Rule 4(i) does not function as an adjudication on the merits, and the order dismissing a plaintiff’s claims without prejudice under 4(i) would not be a final appealable order based on a logical extension of our reasoning in Beverly Enterprises-Arkansas, Inc.

(Bold added.)

The Carroll opinion thus holds that the appeal must be dismissed since it was not taken from a final appealable order.

You may recall the opinion of Orr v. Hudson, 2010 Ark. 484, which I summarized here. Orr held that an appeal of a Rule 12(b)(6) dismissal for failure to state a claim or a 12(b)(3) dismissal for improper venue will, if the dismissal is affirmed, result in a waiver of the right to refile.

Carroll now holds that a Rule 4(i) dismissal for failure to timely serve is not an appealable order.

A plaintiff that has suffered a dismissal but still has the option to refile might want to think twice before filing an appeal. The appeal could be dismissed as not being from an appealable order as in Carroll or, if the dismissal is affirmed as in Orr, the appeal could be deemed as having waived the right to refile.

Arkansas Judiciary link (pdf).

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