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simply nothing to amend in this situation when the initial complaint is a nullity.41 Justice Imber concurred in both cases but argued that the majority had “understate[d] the effect of [Rules 15(c) and 17(a)] with respect to permitting the substitution of a new plaintiff to relate back under circumstances not implicated in this case.”42 She McMath Woods seeks to hire urged adoption of the federal courts’ applian attorney. Willing to consider cation of Rule 15(c) described above. varying levels of experience. But the Supreme Court has instead applied Research and writing skills are its narrower approach beyond the wrongfulimportant. Please send resumes death and survival setting. In Bryant v. to Will Bond at 711 West Third, Hendrix,43 the Court rejected appellants’ Little Rock, AR 72201. argument that the relation-back provision of Rule 15(c) should apply to the substitution Since 1953, a tradition of plaintiffs as well as defendants, thereby of legal excellence. keeping alive their claim for trespass based on removal of timber from their land. They had initially filed suit as individuals but amended the complaint to reflect their status as trustees of the revocable family trust that in fact owned the land. “We are aware that Appellants cite us to [federal] Rule 15 . . . and authority applying that rule,” the Court said. “An analysis of these federal www.McMathLaw.com authorities would prolong this discussion 711 West 3rd • Little Rock, AR 72201 needlessly, given the long-standing law of 501-396-5400 this state to the contrary.”44 The Arkansas law to which the Court referred included Ark. R. Civ. P. 15(c) has become narrower not only the wrongful death and survival than the federal rule. The specific question cases, but also decisions pre-dating adoption is whether subdivision (c) may be used to of the Rules of Civil Procedure by as many as change plaintiffs though it speaks in terms 45 of amendments that change “the party or the fifty-two years. Tellingly, the Court failed to explain fully naming of the party against whom a claim is a decision it had handed down only the pre37 asserted.” ceding week. In Bibbs v. Community Bank,46 Federal courts, including the Eighth Circuit, have held the corresponding federal the Court held that appellant lacked standing provision applicable to a change of plaintiffs in an action against the appellee bank that when “determination of the proper [plaintiff] had accrued before he filed for relief under is difficult or when an understandable mis- Chapter 7 of the Bankruptcy Code, at which take has been made.”38 In this context, Rule point his claim became property of the bank15(c) works in conjunction with Rule 17(a), ruptcy estate and could be brought only by the which provides that a federal court “may not trustee. In considering whether the trustee’s dismiss an action for failure to prosecute in purported ratification of appellant’s complaint the name of the real party in interest” until cured the standing deficiency, the Court cited allowing that party a reasonable time to ratify, its wrongful-death and survival cases for the 47 join, or be substituted into the action. Taken “nullity” proposition but also discussed at together, these rules “avoid forfeitures of just some length the federal authorities that were given such short shrift in Hendrix. claims.”39 Most importantly, the Court relied on In its first cases considering this issue, the two federal cases–previously noted by Justice Arkansas Supreme Court held in 2002 that Imber–in support of the view that an amendan amended complaint substituting a new plaintiff in a survival or wrongful death action ment substituting plaintiffs relates back under did not relate back to the date on which a Rules 15(c) and 17(a) when determination complaint by an improper plaintiff had been of the proper party is difficult or when 48 filed.40 The Court reasoned that there is an understandable mistake was made. But 14
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because appellant’s failure to determine that the trustee was the proper party could not be described as an understandable or excusable mistake, the Court said, the trustee’s purported ratification “did not . . . breathe new life into [appellant’s] defunct pleading.”49 Also of note is the Court’s observation that it had “recognized the ‘understandable mistake’ requirement . . . by inference” in a 2004 wrongful-death decision.50 In that case, the Court found that “no such understandable mistake [had] occurred” because the pertinent statute “specifically details who may maintain a cause of action for wrongful death.”51 None of this apparently matters, however, in light of Hendrix. 4. Ark. R. Civ. P. 23: Class Actions Although the requirements in Ark. R. Civ. P. 23(a) & (b) for certifying a case as a class action do not differ in any meaningful way from those set out in the federal rule, there is a world of difference in their application. As construed, the Arkansas rule is among the most liberal in the nation, and one consequence is that out-of-state class actions are being exported here. For example, lawyers representing Texas residents are bringing these lawsuits in Arkansas because the Texas Supreme Court, following the lead of the federal courts, has adopted certification requirements that are far more stringent than those in Arkansas.52 Subdivision (a) of the Arkansas rule tracks almost word for word the language of the same provision in the federal rule: the class must be “so numerous that joinder of all members is impracticable,” there must be “questions of law or fact common to the class,” the representative parties’ claims or defenses must be “typical of [those] of the class,” and the representative parties and their counsel must “fairly and adequately protect the interests of the class.”53 Under subdivision (b), which applies in all class actions, the circuit court must determine that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” In the federal courts, however, these predominance and superiority requirements apply only in what are generally referred to as “damages class actions” governed by Fed. R. Civ. P. 23(b)(3).54 The Arkansas Supreme Court has taken