Reporter’s Notes to Rule 12: 1. Rule 12(a) is a revised and condensed version of FRCP 12(a). Its purpose is to prescribe the mechanics and timetable for filing responsive pleadings. Its substance is substantially the same as the Federal Rule. 2. The times prescribed in Section (a) for filing responsive pleadings are taken in part from the Federal Rule and in part from prior Arkansas law. Superseded Ark. Stat. Ann. § 27-1135 (Repl. 1962) provided that a defendant must plead to a complaint or cross-complaint on the first day after the expiration of twenty days where service was made inside this State and thirty days where service was made outside the State. Thus, a defendant had twenty-one or thirty-one days within which to file a response depending upon where service was effected. Under Section (a), the "extra" day for filing a response is eliminated.
3. This rule allows a nonresident of this State a period of thirty days to plead regardless of where service was effected and regardless of whether service was effected through a resident agent in this State.
4. Where a defendant is served by warning order, the thirty-day period commences upon the date of the first publication of the warning order. This compares with superseded Ark. Stat. Ann. § 27-1135 (3) (Repl. 1962) which provided that an appearance must have been made after thirty days had elapsed from the making of the warning order and appointment of the attorney ad litem.
5. Rule 12 substitutes the word "file" for serve and requires that the responsive pleading be filed within the time prescribed by this rule as opposed to serving the pleading as is the case under FRCP 12. By using this terminology, it is believed that arguments can be avoided as to when a pleading was served.
5 [6]. Section (a) follows the Federal Rule and superseded Ark. Stat. Ann. §§ 27-1135 and 27- 1137 (Repl. 1962) by allowing a period of twenty days within which to file a responsive pleading to a cross-claim or counterclaim.
6 [7]. Section (a) follows the Federal Rule by permitting the trial court to extend the time for filing any responsive pleading. This is in accord with prior Arkansas practice.
7 [8]. Section (b) sets forth the defenses which may be raised by motion prior to filing a responsive pleading. These defenses are essentially the same as those previously raised by motions to quash service and demurrers. This section is identical to Section (b) of the Federal Rule with the exception of the addition of (b)(8) which is a defense previously allowed under Ark. Stat. Ann. § 27-1115 (3) (Repl. 1962). One important feature of this section is that it abolishes the distinction between general and special appearances; thus, it is not (is not) necessary to make a special appearance in order to challenge the jurisdiction of the person, process or venue. Blank v. Bitker, 135 F. 2d 962 (C.C.A. 7th, 1943); Product Promotions, Inc. v. Cousteau, 495 F. 2d 483 (C.C.A. 5th, 1974). 10 [9]. Sections (c) through (h) track FRCP 12(c) through (h) with the exception that Section (h)(1) takes into account the additional defense designed as (8) in 12(b) relating to the pendency of another action between the parties.
Additions to Reporter’s Notes, 1984 Amendments: Rule 12(h)(1) is amended to make it clear that the stated "waivable" defenses must be raised by motion pursuant to this rule or in the first responsive pleading or they are waived. The final sentence in this subsection excepts the objection to venue in the circumstances described in Ark. Stat. Ann. 27-614 (Repl. 1979), which is now superseded.
Addition to Reporter’s Notes, 1987 Amendment: Two new sections, based on provisions of the Uniform Rules for Circuit and Chacery [Chancery] Courts, have been added to Rule 12 in the interest of clarity and simplification. New section (i), which sets forth the time in which responses to motions must be filed, as well as the time period for the movants to file replies, tracks Uniform Rule 2(c) and (d). Though this requirement is also found in Rule 78(b) of the Rules of Civil Procedure, it is repeated here in a more conspicuous manner to assist users of the Rules. New section (j), borrowed from Rule 2(f) of the Uniform Rules, simply states that the court is to specify the time in which further pleading is allowed in the event the court grants a motion to dismiss and the deficiency can be remedied. These new provisions do not alter prior Arkansas practice.
Addition to Reporter’s Notes, 1997 Amendment: Paragraph (3) of subdivision (h) has been amended by adding a new sentence authorizing the court to transfer the case in the event that venue is improper. Rather than dismiss the action, the court may transfer it to any county where venue would be proper, with the plaintiff having an election if venue would lie in more than one county. The revised provision is generally consistent with Arkansas case law and the practice in the federal courts. See Terminal Oil Co. v. Gautney, 202 Ark. 748, 152 S.W.2d 309 (1941); Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518(1989); 28 U.S.C. 1406(a).
Addition to Reporter’s Notes, 2000 Amendment: The second sentence of subdivision (h)(3) has been amended by replacing the introductory phrase "whenever it appears" with "upon a determination." This change eliminates the unintended suggestion in the original version of the sentence that a motion to dismiss for improper venue, like a motion to dismiss for lack of subject matter jurisdiction, can be made at any time. As subdivision (h)(1) of the rule makes plain, improper venue is a waivable defense.
Addition to Reporter’s Notes, [February] 2001 Amendment: As adopted in 1987, the first sentence of subdivision (i) referred to "a motion made under this or any other rule." The words "or any other" have been deleted because of the 2001 amendment to Rule 56(c) establishing time frames for summary judgment motions and responses. Other motions are covered by Rule 78(b).
Addition to Reporter’s Notes, [May] 2001 Amendment: Paragraph (3) of subdivision (h) has been amended to reflect Constitutional Amendment 80, under which the circuit court is the single court of general jurisdiction in the state. A clause in the first sentence providing for transfer in the event that the court lacks subject matter jurisdiction has been deleted because there are no longer separate circuit, chancery, and probate courts. Left intact, however, is language directing the court to dismiss the action whenever it appears that subject matter jurisdiction is lacking. This provision comes into play when, for instance, the Constitution assigns original jurisdiction to another court. By way of example, the Supreme Court has original jurisdiction to determine the sufficiency of state initiative and referendum petitions and proposed constitutional amendments. Furthermore, while state courts generally have concurrent jurisdiction with the federal courts to decide cases arising under federal law, state courts are without subject matter jurisdiction if Congress has made federal jurisdiction exclusive. See, e.g., 28 U.S.C. 1338(a) (patent and copyright cases).
Addition to Reporter’s Notes, 2002 Amendment: Subdivision (i) of the rule previously included time periods for serving responses to motions and replies to responses. These matters are now governed by Rule 6(c), and subdivision (i) has been amended to provide a cross- reference to that provision. There has also been added a cross-reference to Rule 7(b), which governs the content of motions, responses, and replies.
Addition to Reporter’s Notes, 2003 Amendment: Under revised subdivision (a), a person "incarcerated in any jail, penitentiary, or other correctional facility in this state" has 30 days in which to respond to a complaint. This additional time helps ensure that such a defendant has an opportunity to obtain counsel and to be heard in the action. Subdivision (h)(2) has been amended to provide that the defense of lack of subject matter jurisdiction is never waived and may be asserted at any time. The new sentence simply restates settled law.
Addition to Reporter’s Notes, 2004 amendment: Subdivision (a) has been divided into three paragraphs and other stylistic changes made. The two departures from prior law appear in what are now paragraphs (1) and (3). Under the first paragraph, the time for an incarcerated defendant to file an answer has been increased from 30 days to 60 days. This change recognizes the role of prison employees under Rule 4(d)(4) in delivering the summons and complaint, the possibility that delays in such delivery may occur, and the likelihood that securing legal representation will take longer for incarcerated persons than for other defendants. Paragraph (3) deals with an issue previously covered in Rule 55(f), i.e., the time period for responding to a complaint after a federal court has remanded a removed case to state court. The new paragraph expands that period from 10 to 20 days and states more clearly the point at which the time begins to run. See NCS Healthcare v. W.P. Malone, Inc., 350 Ark. 520, 88 S.W.3d 852 (2002). Because of new language in Rule 55(f), a defendant who filed an answer or Rule 12 motion in federal court while the case was pending there need not, following remand, take the same action in state court within the 20- day grace period to avoid a default judgment. See Addition to Reporter’s Notes to Rule 55 (2004 amendment).
Addition to Reporter’s Notes, 2011 Amendment: Subdivision (a)(1) has been amended to require that both resident and nonresident defendants file a | response within 30 days after service of the summons and complaint. The rule previously required that the resident defendant file the response within 20 days. On occasion the different response times led to the issuance of an incorrect summons by the clerk’s office and subsequent issues as to the sufficiency of process. In addition, modern means of communication and electronic transmission diminish the need to distinguish between response times for resident and nonresident defendants. The amendment to subdivision (a)(3) extends to 30 days from the date of receipt of the remand notice the time within which a defendant must respond to a complaint when a case is remanded from federal court. Subdivision 12(f) similarly is amended to require that a motion to strike be filed within 30 days of service of the pleading upon a party.
Reporter’s Notes (2019 Amendment): Subdivision (a)(1) has been amended to insert the correct cross-reference to Ark. R. Civ. P. 4(g)(3) or (4).