A “Different” Top Ten List: Significant Differences Between State and Federal Procedural Rules By John J. Watkins
T
hree days before the celebration of Independence Day 2009, an anniversary of a different sort went unnoticed: the Arkansas Rules of Civil and Appellate Procedure turned thirty.1 Modeled on their counterparts in the federal system, these rules superseded most provisions of the Code of Civil Practice, which, as amended over time, had governed procedure in the state’s courts for more than a hundred years.2 The title of a 1979 law review article neatly summed up the change: “New Civil Procedure: The Court that Came in from the Code.”3 In the article, authors David Newbern, then a law professor, and Walter Cox, the reporter for the advisory committee that had prepared the proposed rules, compared the Arkansas Rules of Civil Procedure to the federal rules and discussed how they changed state practice. This brief article revisits one of those topics by highlighting Arkansas rules–appellate rules as well as rules of civil procedure–that differ significantly from the corresponding federal rules. As Messrs. Newbern and Cox documented thirty years ago, the original Arkansas Rules of Civil Procedure parted company with the federal model in several respects, and since then both sets of rules have been amended multiple times. The same can be said of the state and federal appellate rules. Unlike the Newbern and Cox article, this one is not comprehensive. Instead, it offers a “top ten” list of significant differences between the Arkansas rules and those that govern federal practice. Your choices may well vary from these. As is the case with formulating almost any kind of list, whether it be the top teams in college football or the best performers on American Idol, reasonable minds can differ. The rules discussed below
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are not ranked according to importance. They appear in numerical order, beginning with Rules of Civil Procedure. 1. Ark. R. Civ. P. 8(a): The Complaint By providing in Ark. R. Civ. P. 8(a) that a complaint must state “facts showing . . . that the pleader is entitled to relief,” the Arkansas Supreme Court departed from the language of the corresponding federal rule that requires only a “statement of the claim.”4 The Court’s intent was to retain the Civil Code’s requirements rather than adopt the “notice pleading” approach of the Federal Rules.5 Consequently, the plaintiff must state facts constituting a cause of action,6 not conclusions of law or mere evidence. And he or she cannot circumvent this requirement by filing a sketchy, inadequate complaint with the hope of using discovery to ascertain the facts.7 Deciding whether a complaint passes muster under the Arkansas rule can sometimes be difficult, and the reported decisions are not models of consistency.8 This should come as no surprise, for fact-pleading has long been criticized on the ground that the line between a “fact” and a “conclusion” is fuzzy at best.9 Fact-pleading is also subject to criticism because it operates to keep potentially meritorious claims out of court,10 and for that reason three members of the Supreme Court expressed dissatisfaction with its strict application in a 2003 case involving disposal of hazardous substances.11 Ironically, the U.S. Supreme Court has in two recent decisions12 sounded the death knell for notice pleading in the federal courts13 by imposing requirements strikingly similar to those found in fact-pleading jurisdictions such as Arkansas. A federal plaintiff cannot survive a motion to dismiss by relying on
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.”14 Rather, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”15 This “plausibility standard” is met when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”16 Although the Court was careful to distinguish its new approach from what it called “the hyper-technical, code-pleading regime of a prior era,”17 it appears to have taken a step in that direction. A good deal more than “notice” is now required, and, perhaps for lack of a better term, some commentators have described the new federal pleading as “notice-plus.”18 Whatever label is attached, it may not be much different in practice than the Arkansas system. Indeed, critics have already complained that the higher bar for complaints in federal court will likely result in the dismissal of meritorious claims.19 2. Ark. R. Civ. P. 11: Frivolous Pleadings & Other Papers What is now subdivision (a) of the Ark. R. Civ. P. 11 was adopted in 1986 and is based on the 1983 version of the federal rule as amended in 1983.20 The federal rule was revised again ten years later to broaden the scope of the signer’s obligations, to make sanctions discretionary rather than mandatory, and to add a “safe harbor” provision.21 The only portion of the 1993 amendment that found its way into the Arkansas rule was the safe harbor, which was adopted in 1997 and placed in subdivision (b) of the rule.22 As part of the 2008 Arkansas rule changes implementing Administrative Order