Where Arkansas appellants challenged their dismissal with prejudice of claims against a New Hampshire corporation, which had merged with a Delaware corporation before they filed suit, and the case was removed, the appellants acknowledged that they had not perfected service prior to removal, but the appellate court finds that the dismissal should be without prejudice allowing them to refile against the original corporation under the savings statute, but the dismissal for failure to state a claim against the merged corporation was proper because the two had merged at the time the lawsuit was initiated, so the defendant then lacked the legal capacity to be sued.
Judgment is affirmed in part; reversed in part.
Barner v. Thompson/Center Arms Company Inc. (MLW No. 68158/Case No. 14-2579 – 9 pages) (U.S. Court of Appeals, 8th Circuit, Wollman, J.) Appealed from U.S. District Court, Eastern District of Arkansas, Wright, J. (James Gerard Schulze, Little Rock, Arkansas, argued for appellant; Connie Lynn Grace and Addison Kennon Goff appeared on the brief) (Anthony Michael Pisciotti, Florham Park, New Jersey, argued for appellee; William M. Griffin III, Jeffrey Malsch and Edie Ervin appeared on the brief).