Practice Tips

PRACTICE TIPS By: Sallie Papajohn Neese

Associate Attorney Lewis Thomason, P.C.

YOU’VE BEEN SERVED... BUT HAVE YOU, REALLY?

After hobbling along in my first year of practice following law school, several aspects of the practice of law still remain mysterious to me (and hopefully the majority of my contemporaries!). However, one thing that has become clear is that service of process can be a technical nightmare that can have fatal effects on legal actions if not timely remedied. Because this area of practice can ground a suit before it takes flight, I wanted to write a couple practice tips on service of process, from both a plaintiff and defendant perspective, which I hope will be of assistance to those new, green attorneys, as well as the more practiced attorneys who need a brush up on some of the nuances. These tips are based on Tennessee Rule of Civil Procedure 3 and 4, which contains the meat of the rules governing service of process.

Practice Tips for All You Plaintiff Attorneys: In my, albeit limited, experience practicing law, the main mistake I have encountered with service of process usually involves serving process on defendants that are not natural persons by mail. Of course, it’s the easiest and arguably most efficient way for attorneys to provide notice to their defendants, but it is also the easiest to mess up. (Let’s be honest, there’s nothing better than hand-delivering that summons.) For instance, attorneys serving process by mail must ensure that the registered return receipt or certified return receipt mail is properly addressed and that the right person signs for the service of process. Otherwise, service is ineffective.1 As an example, if the defendant is a corporation, the certified mail must be addressed to and signed by an officer or managing agent of the corporation or an authorized agent.2 Of course, as the sender we have control over how the certified or registered return mail is addressed. The problem usually arises with who signs for the certified mail. Often, its secretaries, gatekeepers, or the mailperson himself who sign. Unless the secretary or mailperson is the individual designated by Rule 4.04 or by statute, this is insufficient service of process and is ineffective.

Unfortunately, it’s hard to control who the mailperson allows to sign for the certified mail. One way to combat this problem is to make it clear on the envelope itself that the person signing for the return receipt must be the person addressed. This could be as simple as acknowledging this requirement on the envelope itself by hand-written notation or through use of a stamp or similar marking. Either way, plaintiff attorneys must be hyper vigilant in confirming who signed for the mail containing process. Obviously, this is not groundbreaking or novel advice, but I have already seen this issue come up several times in my one year of practice, so it’s worth mentioning and reminding people of the nuances of service by mail.

Defense Attorney “Need to Knows:” Generally, improper service of process is not the most excitable error plaintiff’s counsel can make. But it can certainly be a death knell for a Plaintiff’s cause of action. Under normal circumstances, once a defendant pleads improper service of process as an affirmative defense or in a separate motion to dismiss, plaintiff’s counsel can generally remedy the error and properly serve the defendant. But what happens if the defendant properly pleads insufficient service of process in his or her answer and a plaintiff fails to cure service? Well, a defendant can bide her time and continue participation in the suit until the statute of limitations has run on the claim and the issuance of process under Tennessee Rule of Civil Procedure 3. To that end, Tennessee courts have consistently held that participation in litigation does not constitute a waiver of insufficient service of process after the defense has been properly pled in an answer.3 Upon the running of the limitations period, a defendant can then bring a motion for summary judgment based on insufficient service of process and running of the statute of limitations, which, if granted, will be with prejudice. (Ah, those two simple words are music to our defense-ears!). A couple of things to look out for if implementing this strategy: under Rule 3, a plaintiff originally has 90 days after issuance of a summons to effect process but may obtain new summonses “from time to time” if service is not made within that ninety-day (90) period. Meaning, a plaintiff who wishes to rely upon the original filing to toll the statute of limitations must obtain service of process within 90 days or procure its reissuance before the expiration of one year from the previous issuance of process. A concrete example may help understand this aspect of the rule. Let’s say a Complaint was filed in Knox County Circuit Court on October 11, 2021 and summons issued same day. Under the original summons, the plaintiff would have until January 10, 2022, to serve the defendant with process. If plaintiff incorrectly serves the defendant and the defendant properly asserts this defense in an Answer, the plaintiff must then have process reissued and properly served before October 11, 2022, which is one year from issuance of the previous process, to rely on the tolling of the statute of limitations. If the plaintiff fails to do so, maybe because she didn’t realize that insufficient service of process was raised as a defense, the case should be dismissed as untimely, even if the defendants participate in the litigation.4 The October 11, 2022 deadline is subject to change, however, if the plaintiff reissues service of process before October 11, 2022 and the ninety (90) days once again expires before proper service can be made.

Although this column is more akin to “practice reminders” rather than “practice tips,” I sincerely hope you found it instructive. Service of process is an easy thing to get wrong and can be the sleeping giant in your legal action. Don’t get caught on your heels!

1 See Tenn. R. Civ. P. 4.04(10) and 4.03(2). 2 See Tenn. R. Civ. P. 4.04(4). 3 See Krogman v. Goodall, 2017 Tenn. App. LEXIS 580, at *23 (Tenn. Ct. App. Aug. 29, 2017); Barger v. City of Huntsville, 63 S.W.3d 397, 399 (Tenn. Ct. App. 2001);

Regions Bank v. Sandford, 2016 Tenn. App. LEXIS 874, at *2 (Tenn. Ct. App. Nov. 16, 2016) (citing Barger); Doyle v. own of Oakland, 2014 Tenn. App. LEXIS 435, at *3 (Tenn. Ct. App. 2014) (citing Barger); Eaton v. Portera, 2008 Tenn. App. LEXIS 722, at *3 (Tenn. Ct. App. Nov. 21, 2008) (citing Barger). 4 Id.