425 S.W.3d 838
Ark. Ct. App.2013Background
- Tippin asserted state-law retaliation claims under the Arkansas Civil Rights Act against Eusanio (individually) and UPS; UPS later dismissed without prejudice.
- Service: Eusanio on April 30, 2011; UPS on May 17, 2011; response deadlines: May 20 (Eusanio) and June 6 (UPS).
- Eusanio sought an extension; motion for extension was mailed (not faxed) and received May 23, 2011, three days after his deadline.
- Gerth attempted to obtain a 14-day extension; Tippin’s counsel was unavailable; the extension motion was circulated within firm and sent by mail due to clerical error, filing May 23, 2011.
- Tippin moved for default on May 24, 2011; Eusanio answered June 3, 2011; circuit court entered default and struck the answer on August 16, 2011.
- Eusanio moved to set aside the default; court denied; on appeal the standard for reviewing default judgments from Rule 55 is applied and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the extension under Rule 6(b) | Eusanio's motion was timely served and filed. | No timely motion; extension only by court before expiration. | Affirmed; extension not timely under Rule 6(b)(1). |
| Whether the default and denial of extension were abuse of discretion under Rule 6(b)(2) | Counsel’s absence and coordination failures constitute excusable neglect. | Failure to coordinate staff shows carelessness, not excusable neglect. | Not an abuse of discretion; conduct was careless, not excusable neglect. |
| Application of Rule 1 and Rule 12 amendments to default | Rule 12 amendment should affect timeliness. | Rule on date of events governs; amendment irrelevant. | Rule 12 amendment irrelevant; Rule 12 in effect at events governs. |
| Sufficiency of the complaint under §16-123-108 and Calaway interpretation | Calaway extends individual liability for supervisor’s retaliatory acts. | Supervisory action within scope of employment not personally liable; Calaway misread. | Affirmed; Calaway interpretation rejected; complaint sufficiency not dispositive. |
Key Cases Cited
- Solis v. State, 371 Ark. 590 (2007) (set aside standard; Rule 55 review of default judgments)
- B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175 (1992) (default judgment standards; Rule 55)
- Nucor Corp. v. Kilman, 358 Ark. 107 (2004) (abuse-of-discretion standard for default judgments)
- Volunteer Transp., Inc. v. House, 357 Ark. 95 (2004) (non-favoring defaults; excusable neglect standards)
- Maple Leaf Canvas, Inc. v. Rogers, 311 Ark. 171 (1992) (service and service-time considerations)
- Calaway v. Practice Management Services, Inc., 2010 Ark. 432 (2010) (individual supervisor liability under §16-123-108)
- Wal-Mart Stores, Inc. v. Taylor, 346 Ark. 259 (2001) (date-of-events governs rule applicability)