624 S.W.3d 106
Ark.2021Background
- In 2018 the Arkansas Attorney General sued multiple pharmaceutical companies on behalf of the State, alleging harms and quantifiable costs to five named state agencies arising from the opioid crisis.
- Defendants served broad discovery seeking documents and cost data from those state agencies; the AG resisted, arguing her office did not have possession, custody, or control of other agencies’ records and subpoenas under Rule 45 were required.
- The circuit court granted a motion to compel in part (Oct. 1, 2019), ordering the Attorney General to produce nonprivileged discovery from the five agencies and warning of Rule 37 sanctions for noncompliance.
- After conferences and supplemental responses, the court found the AG had not provided complete responses and, on Sept. 15, 2020, ordered the AG to file an amended complaint omitting any relief based on harms to those five agencies or face dismissal.
- The AG filed an interlocutory appeal under Ark. R. App. P.–Civ. 2(a)(4) (appeal from an order striking an answer or any part of an answer or any pleading), arguing the sanctions order was appealable; defendants argued the order was nonfinal and not within Rule 2(a)(4).
- The Arkansas Supreme Court held that Rule 2(a)(4) does not authorize immediate appeal of an order that strikes only part of a complaint (as opposed to an answer or full pleading), applied expressio unius, and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Sept. 15, 2020 sanctions order is immediately appealable under Ark. R. App. P.–Civ. 2(a)(4) | Rutledge: Rule 2(a)(4) permits appeal of an order striking part of a pleading; relied on Findley | Defendants: Rule 2(a)(4) applies only to orders striking an answer or part of an answer or an entire pleading, not a portion of a complaint | Not appealable; appeal dismissed for lack of jurisdiction |
| Whether Rule 2(a)(4) should be construed to allow appeals of partial-pleading strikes | Rutledge: Findley supports appealability of a portion-strike | Defendants: Rule text omits “any part” for pleadings; drafters intended narrower exception | Court construed rule narrowly; no partial-pleading appeals under 2(a)(4) |
| Whether the final-judgment rule prevents piecemeal appeals of discovery/sanctions orders | Rutledge: immediate review necessary to challenge sanctions | Defendants: final-judgment rule and Rule 2 exceptions bar interlocutory appeal here | Final-judgment requirement controls; interlocutory order not reviewable |
| Whether the circuit court’s order functionally struck the complaint so as to be appealable | Rutledge: order required omission of claims tied to five agencies — effectively a strike | Defendants: court ordered amendment, did not strike entire complaint or answer | Court found order did not strike entire complaint; Rule 2(a)(4) inapplicable |
Key Cases Cited
- Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (reaffirming final-judgment rule for appeals)
- Denney v. Denney, 2015 Ark. 257, 464 S.W.3d 920 (explaining finality requirement and avoiding piecemeal litigation)
- Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W.2d 908 (party relied on this case to argue partial-pleading strike was appealable)
- Buonauito v. Gibson, 2020 Ark. 352, 609 S.W.3d 381 (applied expressio unius canon in statutory/rule construction)
- Ark. Lottery Comm’n v. Alpha Mktg., 2012 Ark. 23, 386 S.W.3d 400 (no jurisdiction where no final or otherwise appealable order exists)
- White v. Owen, 2021 Ark. 31, 617 S.W.3d 241 (rule-construction reviewed de novo)