                                Cite as 2014 Ark. App. 203

                 ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CV-13-849


THE LOGAN CENTERS, INC., ET AL.                  Opinion Delivered   April 2, 2014
                   APPELLANTS

V.                                               APPEAL FROM THE ST. FRANCIS
                                                 COUNTY CIRCUIT COURT
                                                 [NO. CV-2013-49-1]
CARLA WALKER, AS
ADMINISTRATRIX OF THE ESTATE                     HONORABLE L.T. SIMES, JUDGE
OF ANTONIO COZART
                     APPELLEE                    REVERSED AND REMANDED



                          JOHN MAUZY PITTMAN, Judge

       Appellee filed a complaint instituting a medical-malpractice and wrongful-death action

against appellants. Counsel for appellants filed a notice of appearance and motion for

extension of time to respond to the complaint pursuant to Ark. R. Civ. P. 6(b)(1) before

expiration of the time to respond to the complaint. Appellee filed motions objecting to any

extension and seeking default judgment. Seven days after the expiration of the time for filing

the answer, appellants filed an answer. After a hearing on the motions, the trial court denied

appellants’ motion for extension of time to respond to the complaint, granted appellee’s

motion to strike appellants’ answer, and granted default judgment in favor of appellee. This

appeal followed. Our jurisdiction is pursuant to Ark. R. App. P.–Civ. 2(a)(4), which permits

an immediate appeal from an order striking an answer.
                                    Cite as 2014 Ark. App. 203

           Appellants argue that the trial court erred as a matter of law in applying the more

stringent standard applicable to Ark. R. Civ. P. 6(b)(2) rather than the “for cause shown”

standard of Ark. R. Civ. P. 6(b)(1). We agree, and we reverse.

           Arkansas Rule of Civil Procedure 6(b) governs the extension of time periods

established by the Rules. It provides that:

           (b) Enlargement. When by these rules or by a notice given thereunder or by order of
           the court an act is required or allowed to be done at or within a specified time, the
           court for cause shown may at any time in its discretion (1) with or without motion
           or notice, order the period enlarged if request therefor is made before the expiration
           of the period originally prescribed or as extended by a previous order, or (2) upon
           motion made after the expiration of the specified period permit the act to be done
           where the failure to act was the result of mistake, inadvertence, surprise, excusable
           neglect, or other just cause, but it may not extend the time for taking an action under
           Rules 4(i), 50(b), 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under
           the conditions stated in them.

Here, it is undisputed that appellants’ request for an extension of time was made before the

expiration of the time to answer. Consequently, the applicable standard is “for cause

shown.” It is clear, however, that the trial court applied the standard in subsection (2) that

applies to motions made after the expiration of the time period. The court’s order expressly

recites:

                  12. That on the Motion for Extension of Time to Respond to Complaint, the
           court denies that motion and relies on the following caselaw:

                  In Layman v. Bone, 333 Ark. 121, 967 S.W.2d 561 (1998) the court stated:

                         Rule 6(b)(2), any failure to file an answer on time could be referred to
                  as a “mistake” in the sense that an error of some sort caused the failure to file
                  on time. To hold, however, that any error whatsoever should excuse
                  compliance with Rule 12(a) would deprive the trial courts of the discretion to
                  which the rule refers. That is not the intent behind the rule.


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       A showing of mistake (or inadvertence, surprise, or excusable neglect) is necessary

under Rule 6(b) only when the motion for extension of time is filed after the applicable filing

period has already expired. When a motion is made before the filing period has expired,

those factors need not be shown, and it is necessary only to “show cause” under the less

stringent standard applicable to Rule 6(b)(1). There are no Arkansas cases differentiating

between these standards, but the notes to Rule 6 indicate that it is virtually identical to the

federal rule. With respect to the federal rules, the leading authority states:

               Rule 6(b)(1)(A) gives the court wide discretion to grant a request for additional
       time that is made prior to the expiration of the period originally prescribed or prior
       to the expiration of the period as extended by a previous enlargement order.
       However, at least two courts of appeals have held that an extension is effective only
       if the court explicitly extends the time period under Rule 6(b); a request for a status
       report and the continued administration of the case after the expiration date are not
       evidence of an implied extension under Rule 6(b).

               Because the district court may exercise its discretion under Rule 6(b)(1) only
       “for good cause,” a party must demonstrate some justification for the issuance of the
       extension. However, an application for the enlargement of time under Rule 6(b)(1)
       normally will be granted in the absence of bad faith on the part of the party seeking
       relief or prejudice to the adverse party. Neither a formal motion for enlargement nor
       notice to the adverse party is expressly required by the rule.

               Current Rule 6(b)(1)(B)—formerly Rule 6(b)(2)—provides that the district
       court, in its discretion, may order an extension even after the expiration of a specified
       time period, but only for “good cause” and where the party’s failure to act in a timely
       fashion was the result of excusable neglect. The note below contains the citation of
       a number of cases applying the “excusable neglect” standard in a variety of substantive
       and factual contexts. The rule’s requirements are quite flexible, and the district judge
       enjoys broad discretion to grant or deny an extension, but several courts have made
       it clear that an enlargement of the time period is by no means a matter of right. A
       request for an extension under Rule 6(b)(1)(B) should be made upon formal
       application for an order in compliance with the provisions of Rule 7(b)(1) relating to
       motions. Because Rule 7(b)(1) requires that the application state with particularity
       the grounds therefor, the movant must allege the facts constituting excusable neglect


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       and the mere assertion of excusable neglect unsupported by facts has been held to be
       insufficient.

              Excusable neglect is intended and has proven to be quite elastic in its
       application. In essence it is an equitable concept that must take account of all relevant
       circumstances of the party’s failure to act within the required time. Common sense
       indicates that among the most important factors are: the possibility of prejudice to the
       other parties, the length of the applicant’s delay and its impact on the proceeding, the
       reason for the delay and whether it was within the control of the movant, and
       whether the movant has acted in good faith.

4B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (3d ed. 2004).

       It is true that a motion to extend time to file an answer is not a substitute for filing an

answer and does not automatically extend the time for filing an answer under Rule 12. See

Adams v. Moody, 2009 Ark. App. 474, 324 S.W.3d 348 (2009). But that is not the issue here.

The question, instead, is whether the trial court erred in applying the Rule 6(b)(2) standard

that requires a showing of facts constituting mistake, inadvertence, surprise, or excusable

neglect, instead of the “show cause” standard of Rule 6(b)(1) that “normally will be granted

in the absence of bad faith on the part of the party seeking relief or prejudice to the adverse

party.” We hold that the Rule 6(b)(1) standard is applicable here, and we reverse and

remand for further consistent proceedings.

       Reversed and remanded.

       GLOVER and VAUGHT, JJ., agree.

       Hagwood Adelman Tipton, PC, by: Rebecca Adelman, for appellant.

       Wilson Law Firm, P.A., by: E. Dion Wilson and Don Etherly; and Brian G. Brooks,

Attorney at Law, PLLC, by: Brian G. Brooks, for appellee.



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