Peace v. Bank of America NA et al

Filing 30

ORDER granting 20 Motion to Dismiss and dismissing plaintiff's complaint against Defendant Bank of America NA without prejudice. Signed by Judge William R. Wilson, Jr on 2/2/10. (bkp) (Docket text modified on 2/3/2010 to correct the description of the document filed.)(thd)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION KIMBERLY PEACE v. BANK OF AMERICA NA, et al. ORDER Pending is Defendant Bank of America's Renewed Motion to Dismiss (Doc. No. 20). Plaintiff has responded, and Defendant has replied.1 For the reasons set out below, Defendant's Motion is GRANTED. Rule 4 of the Arkansas Rules of Civil Procedure directs that a summons include "the time within which these rules require the defendant to appear, file a pleading, and defend,"2 and Rule 12 provides that "a defendant not residing in this state shall file an answer within 30 days after service . . . ."3 The Arkansas Supreme Court has found summons issued to a foreign defendant defective where the summons indicated the defendant had 20 days -- rather than 30 -to respond.4 Rule 4 also provides that service of a summons on a defendant not residing in Arkansas "may be made by the plaintiff . . . by any form of mail addressed to the person to be served with a 4:09CV00849-WRW DEFENDANTS PLAINTIFF 1 Doc. Nos. 24, 27. Ark. R. Civ. P. 4(b). Ark. R. Civ. P. 12(a)(1)(A). See Rettig v. Ballard, 2009 Ark. 629 (2009). 2 3 4 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 . . . ."5 The summons here instructs Defendant to answer Plaintiff's complaint within 20 days.6 Because Defendant is a foreign defendant entitled to 30 days to answer a complaint, the summons is defective, and dismissal under Arkansas Rule of Civil Procedure 12(b)(4) is proper. Further, because Plaintiff did not address her service of summons to a natural person specified by name,7 dismissal under Arkansas Rule of Civil Procedure 12(b)(5) is appropriate. The Court directed Plaintiff to comply with the relevant rules of civil procedure,8 but the record does not reflect that she has done so. Accordingly, Defendant's Motion is GRANTED and Plaintiff's Complaint against Defendant is DISMISSED without prejudice. IT IS SO ORDERED this 2nd day of February, 2010. /s/Wm. R. Wilson, Jr. UNITED STATES DISTRICT JUDGE 5 Ark. R. Civ. P. 12(d)(8)(A). Doc. No. 1. Id. Doc. No. 17. 6 7 8

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