Dobbs v. Discover Bank
2012 Ark. App. 678
Ark. Ct. App.2012Background
- Discover Bank sued Deborah Dobbs in Pulaski County for a past-due balance on a Discover Card.
- Dobbs answered, challenging the summons as defective and moving to dismiss under Rule 12(b).
- At trial, Dobbs argued the summons was defective for (i) FedEx delivery to her husband, (ii) improper or unapproved delivery company, and (iii) multiple form defects and missing language.
- The circuit court denied the motion to dismiss after briefing; a judgment on the merits for Discover was entered later.
- Dobbs appealed, arguing the summons and service were defective and invalid, warranting dismissal under Rule 4 and Rule 4(d)(8).
- The appellate court reverses, holds service or the summons failed strict compliance with Rule 4 and 4(d)(8).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the summons was defectively drafted under Rule 4(b). | Dobbs contends the summons lacks required information. | Dobbs asserts defects in form and direction under Rule 4(b). | No merit for some items; but summons defective for attorney address and named sender. |
| Whether service via FedEx to Dobbs’s husband complied with Rule 4(d)(8)(C). | Discover Bank claims FedEx was approved and proper; may have kept records. | Dobbs argues improper service since not personally delivered nor to an authorized agent. | Service invalid; FedEx delivery did not meet Rule 4(d)(8)(C) and the summons was not personal or to an authorized agent. |
| Whether Dobbs waived or cured defective service by answering and seeking relief. | Discover Bank relies on Farm Bureau and waiver by appearance. | Dobbs did file an answer seeking relief but not affirmative waiver. | Dobbs did not waive; Farm Bureau distinguished; defenses preserved. |
| Whether the trial court should have dismissed for lack of service of process. | Service was defective but court denied motion. | Defective service justifies dismissal. | Judgment reversed; service void ab initio; remand with instructions. |
| Whether the summons content complied with constitutional and statutory requirements. | Summons provided requisite notification. | Some Form 4(b) language missing; direction to defendant insufficient. | Certain deficiencies persist; strict compliance required by precedent. |
Key Cases Cited
- Gatson v. Billings, 2011 Ark. 125 (Ark. 2011) (summons must run in the name of the State of Arkansas under Art. 7, §49)
- Talley v. Asset Acceptance, LLC, 2011 Ark.App. 757 (Ark. App. 2011) (Rule 4(b) language strict; form requirements matter)
- Trusclair v. McGowan Working Partners, 2009 Ark. 203 (Ark. 2009) (bright-line strict compliance doctrine for process)
- Patsy Simmons P’ship Ltd. v. Finch, 2010 Ark. 451 (Ark. 2010) (strict compliance; due process requirements)
- Holliman v. Johnson, 2012 Ark. App. 354 (Ark. App. 2012) (waiver/preservation of Rule 12 defenses must be specific)
- Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136 (Ark. 1993) (affirmative relief not shown by generic answer; no waiver)
- Southeast Foods, Inc. v. Keener, 335 Ark. 209 (Ark. 1998) (burden of showing compliance with service rules)
- Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701 (Ark. 2003) (strict construction of Rule 4(b))
- Gatson v. Billings, 2011 Ark. 125 (Ark. 2011) (see above)