Does service by mail under Rule 4(d)(8) apply only to the United States Postal Service or may it also apply to a private mail deliver such as Federal Express, UPS, or some other private courier type service? ANSWER: Both. Arkansas Rules of Civil Procedure -- #'s 55(c) and 60(b).

‘a TORNEY GENERAL: = , “ORTON. NO. 86-309. - STATE OF ARKANSAS: ome OF THE: ATTORNEY: GENERAL rare - - 201 EAST MARKHAM STREET. oe ~ HERITAGE WEST BUILDING. _ LITTLE ROCK, ARKANSAS 72201. ” ae aprii's0, 1986 7 The Honorable. David Rs “Matthews. _ District, 10°: P.O. Box 3B eeek ets Lowell, AR- 72745" State. Representative. _ “Re: Rule “4(a) (8) of the Arkansas Rules of civil Procedué™” Dear Representative Matthews: { ae a This is in response to your request . “for! an official opinion on the following question: - . Does service by mail under Rule 4(d)(8) apply only. ‘to the United States Postal Service or may it also apply to a private mail deliver such as Federal Express, UPS, or some (other private courier type service? - It is my opinion that service ‘by mail under Rule 4a) (8) would apply equally to private mail deliverers such as Federal Express, UPS or other courier type service as it does to the United States Postal Service, provided that those.private mail services would offer the. same safeguards under the rule as does: the U.S. Postal Service. Rule 4-D8 of the Arkansas Rules of Civil Procedure provides thatz- i Service of a summons and complaint upon a defendant of .any class referred to in “paragraphs 1 through 5, .and--7 of this subdivision of this Rule may be made by’ the plaintiff or an attorney “of record for the plaintiff by any form of mail addressed’ to the person to be _ served with a return receipt requested and delivery restricted to the addresssee or the agent of the addressee. service pursuant to this paragraph shail not be _the basis for the entry of a default or judgment by default unless the record RRO RIES contains a return receipt signed by the addressee or the agent of the addressee | or a returned envelope, postal document or affidavit by a postal. employee reciting or showing refusal of the process of the addressee. If delivery of mail process is refused, the plaintif£ or attorney . making such service, promptly upon receipt of notice of such srefusal shall mail to the. defendant by first class mail a. copy of the summons and. complaint and a notice that despite such refusal the case will proceed and that judgment by default may be rendered against him ‘unless’ he appears to defend the suit. Any such default or judgment by defauit may be set aside pursuant to Rule 55(c) or Rule 60(b) if the addressee demonstrates to the Court that the return receipt was Signed or delivery was refused by . someone other than the addressee. The language of the rule seems to make clear that any form of mail is sufficient for service by mail provided that a return receipt is signed and that the delivery be restricted to the addressee or the agent of the addressee, However, it is my opinion that should the service by certified mail be refused, then ‘the rule requirement that mailing of the summons and complaint and notice of possible procedural default judgment must be accomplished by first class mail through the U.S. Postal Service. This opinion is based on the fact that the language of the rule concerning refusal of service and notice thereafter specifically refers to first class mail and does not provide, as does the language concerning service of a summons, that any form of mail is sufficient. * , To reitterate,- it is my opinion that under Rule 4(d)(8) service of ‘the summons and complaint by mail may be accomplished through a private -mail ,deliverer such as federal, express, UPS or some other private courier type of service, as well as the United States Postal Service. However, it is also my opinion that a private mail deliverer such as described is not sufficient when there is a refusal of the summons and complaint by certified mail where the rule requires that the summons and complaint along with a notice of possible default judgment be sent by first class mail to the addressee. Such service after notice of refusal by the addressee must be accomplished through United States Postal Service. , The. foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Jerome T. Kearney, Sincerely, STEVE CLARK Attorney General SC/JK/pw v any