                                 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.

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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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