Rule 4.09 Amendment

Advisory Commission Comments.

4.01: Rule 4.01 sets out the procedure for issuance and service of the summons upon the filing of a complaint. The Rule also provides for the issuance of separate or additional summonses against any defendant upon request of the plaintiff.

The [1988] amendment allows private service of process at the plaintiff's option. Service by a sheriff or deputy remains an alternative. [1988.]

4.02: Rule 4.02 provides that the summons shall be directed to the defendant. Rule 4.02 requires that the summons notify defendant that judgment by default will be entered for failing to appear and defend within the proper time. The Rule also requires that the summons state the name and address of the plaintiff's attorney, or of the plaintiff if the plaintiff has no attorney.

4.03: (1) Rule 4.03 fixes a definite time – 90 days – within which summons must be served; if not served within that period, it must be returned unserved. The Rule includes a requirement that the manner of service must be described and the person served must be identified on the return; thus any departure from the routine manner of service will instantly be apparent to the court and to defendant's counsel.

(2) : Paragraph 2 explains how return of service of process by mail is accomplished. It is similar to the method used for return of service of process on nonresidents (Tenn. Code Ann. §§ 20-2-206; 20-2-211; 20-2-216). [1984.]

4.04 (1): Paragraph (1) of Rule 4.04 requires that a copy of the process, as well as of the complaint, be left with defendant. The paragraph authorizes service, in case of evasion or attempt to evade service, by leaving copies of summons and complaint at defendant's dwelling house or usual place of abode; but the Rule includes a provision, for protection of the defendant, that the copies must be left with a person of suitable age and discretion residing therein, and requires that that person's name appear on the proof of service. The Rule also includes a provision allowing service on an agent of an individual defendant when the agent is authorized to receive service on behalf of the individual served.

(2) : Paragraph (2) of Rule 4.04 specifies a number of "retreating" alternative methods of service on infants and incompetents. If the first stated method of service is not possible, the second may be used; if the second is not possible, the third may be used, etc. The Rule further safeguards the interest of an otherwise competent infant by providing that, in addition to the service upon the appropriate guardian, parent, etc., personal service must be had on an unmarried infant who is age 14 or over, if otherwise competent.

(3) : Paragraph (3) of Rule 4.04 allows service upon a partnership by serving a partner or managing agent of the partnership. The paragraph allows service upon an unincorporated association by serving a managing agent or officer of the unincorporated association. The Rule is not intended to affect Tenn. Code Ann. § 20-2-212, which requires that both resident and nonresident unincorporated associations and organizations, including nonresident partnerships and trusts, must, before doing business in Tennessee, appoint an agent for service of process, and failing such appointment, authorizes service upon the Secretary of State. Rule 4.04(3) provides an additional means of service where a managing agent or officer of the unincorporated association can be found in the state.

(4) : Rule 4.04(4) fixes the same rules for service upon a foreign corporation doing business in the state as apply to service upon domestic corporations. The Rule allows service upon any officer or the managing agent of the corporation, and thus relieves the process server of the necessity of seeking any particular officer first. The Rule also allows service upon the chief agent of the corporation in the county where the action is brought, and specifies that service may also be had on any other agent of the corporation authorized by appointment or law to receive service on behalf of the corporation. This clause preserves statutory provisions authorizing service upon the secretary of state or other officer where such service is authorized by statute.

(5) : Paragraph (5) of Rule 4.04 governs service upon a nonresident individual who transacts business through an office or agency in the state, or upon a resident individual who transacts business in a county other than that in which he or she resides. Service may be had upon the person in charge of the office or agency in any action growing out of the business of that office or agency.

(7) : In suits against a county, Rule 4.04(7) provides for service upon the chief executive officer of the county, or if that officer is absent from the county, upon the county attorney if there is one designated; if no county attorney is designated, service may be made on the county court clerk in the absence of the chief executive officer.

With the reorganization of county government structure, it is appropriate to substitute "chief executive officer of the county" for "presiding officer of the county court." In most counties the chief executive officer is the county executive. [1989.]

(8) : In suits against a municipality, Rule 4.04(8) provides for service upon the chief executive officer thereof or upon the city attorney.

(9) : In suits against any other governmental or quasi-governmental entity, paragraph (9) of Rule 4.04 provides for service upon any officer or managing agent thereof.

(10) : Paragraph (10) of Rule 4.04 authorizes service of process by mail on residents of Tennessee. Service by mail should be inexpensive, expeditious and in most cases successful. If it is unsuccessful, traditional methods of service of process may be used. [1984.]

4.08: Rule 4.08 makes it clear that, in the absence of express provision in these Rules, no changes in the statutes governing constructive service are intended.

4.09: Rule 4.09 authorizes the court at any time to allow amendment of process or proof of service thereof, but conditions the exercise of the court's discretion upon the absence of a clear showing of material prejudice to the substantial rights of the party against whom process issued.

Advisory Commission Comments. [1995].

New Rule 4.07 allows waiver of service along the lines of the current federal rule. The incentive for defendants to waive service is found both in the expanded time for service of a motion or answer and in the sanction of shifting of costs expended in perfecting traditional service.

Advisory Commission Comments [1997].

The title of Rule 4.04 is changed from "Personal Service and Service by Mail" to "Service Upon Defendant Within This State." This change is to make clear that the emphasis of the revised Rule 4 is on the distinction between the exercise of jurisdiction by service of process within the state and all other cases.

Previously, subpart 5 of Rule 4.04 provided for service upon a foreign corporation as follows: “(5) Upon a foreign corporation which is not qualified to do business in this state, or which has no agent authorized by appointment to receive service on its behalf, by making service as provided by statute; provided, that in every such case a copy of the summons and of the complaint shall be delivered or forwarded to the person or official designated in the statute to receive the service.”

This subpart is deleted. A foreign corporation not qualified to do business in this state may be served as provided in Rule 4.04(4) if it is actually doing business in the state. Otherwise, service in a judicial district of the United States may be made according to Rule 4.05(3). For service outside the United States and its territories, see Rule 4A.

Former subpart 6 is renumbered to 5.

Revised Rule 4.04 also deletes former subpart 7, which provided for service upon nonresidents as follows: “(7) Upon other nonresidents, as provided by statute; provided, that in every such case, a copy of the summons and of the complaint shall be delivered or forwarded to the person or official designated in the statute to receive the service.”

Rule 4.05 now provides for service upon persons outside the state. Former subparts (8), (9), (10), (11), and (12) are renumbered to (6), (7), (8), (9), and (10), respectively.

Rule 4.05, which is entitled "Service upon Defendant Outside this State," is a new subdivision. It replaces former Rule 4.05, which was captioned "constructive service."

This rule is derived largely from current Tenn. Code Ann. § 20-2-215(d). Subpart (1)(a) provides for service upon non-residents by any means authorized for service upon a resident in Rule 4.04. Subpart (1)(b) is derived from Federal Rule of Civil Procedure 4(e)(1), which now permits service upon a defendant in whatever manner is permitted by the law of the state in which service is effected. Subpart (1) includes the words "when reasonably calculated to give actual notice," which is a Constitutional standard prescribed in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), to emphasize that any means employed must satisfy due process requirements as well those prescribed by rule or statute.

Courts are virtually unanimous in holding that service of process is not defeated by the defendant's refusal to accept a certified or registered letter. See, e.g. Nikwei v. Ross School of Aviation, Inc., 822 F.2d 939, 942 (CA10 1987) (service by mail returned marked "refused" and defendant's conclusory affidavit insufficient to invalidate service); Merriott v. Whitsell, 476 S.W.2d 230, 232 (Ark. 1972)(non-resident who is subject to jurisdiction of Arkansas courts cannot defeat jurisdiction by simple expedient of refusing to accept a registered letter; avoidance of service of proper process by a willful act or refusal to act on part of defendant "would create an intolerable situation and should not be permitted"); Cortez Development Co. v. New York Capital Group, Inc., 401 So. 2d 1163 (Fla. App. 1981)(when address was correct according to record and information received from persons at that address, defendant had succeeded in quashing earlier service accepted by another on his behalf at that address, and post office had returned mail marked refused, substituted service of process by certified mail upon individual was effective despite defendant's sworn statement that he did not refuse mail nor instruct anyone to refuse on his behalf); Thomas Organ Co. v. Universal Music Co., 261 So. 2d 323, 327 (La. App. 1972)("sending by mail a certified copy of citation and petition satisfies the requirements of "due process'"); McIntee v. State of Minnesota, Department of Public Safety, 279 N.W.2d 817 (Minn. 1979)(notice sent by certified mail was sufficient when addressee disregarded postal service notice to pick up the certified mail); Patel v. Southern Brokers, Ltd., 289 S.E.2d 642, 644 (S.C. 1982)("we think it can hardly be logically argued that one may avoid the process of the court by merely refusing to accept a letter known to contain a Summons and Complaint").

As one court has stated: A person may not deny personal service on the grounds of lack delivery where the delivery was deliberately prevented by action of the person to be served. * * *

Where a statute provides for service by registered or certified mail, the addressee cannot assert failure of service when he willfully disregards a notice of certified mail delivered to his address under circumstances where it can be reasonably inferred that the addressee was aware of the nature of the correspondence.

Hankla v. Governing Board of Roseland Sch. Dist., 120 Cal. Rptr. 827, 834 (Cal. App. 1975). See also European American Bank v. Abramoff, 608 N.Y.S.2d 233 (N.Y. App. Div. 2 Dep't 1994)(service of process by mail is complete, regardless of delivery, when mailing itself is proper; bald denial of receipt of process served by mail insufficient to defeat service of process, regardless of delivery, when mailing itself it proper).

Actual notice in every case is not required. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). In Wuchter v. Pizzutti, 276 U.S. 13 (1928), the United States Supreme Court noted "a general trend of authority toward sustaining the validity of service of process, if the statutory provisions in themselves indicate that there is a reasonable probability that if the statutes are complied with, the defendant will receive actual notice ...." Id. at 24. In Nikwei v. Ross School of Aviation, Inc., supra, the court declared it "well settled, that as to notice, due process does not require exact certainty." 822 F.2d at 944.

Former Rule 4.06 is renumbered to 4.09.

Rule 4.07, first adopted in 1995, allows waiver of service along the lines of the current federal rule. The 1995 Comment originally contained a form for waiver of service; however, two minor corrections were made to that form in 1997. To avoid any confusion, the original form has been deleted from the 1995 Comment and has been replaced with the following amended form.

This amended form should be used to request a waiver:

Notice of Lawsuit and Request for Waiver of Service of Summons

TO: (Name of defendant or officer or agent of corporate defendant) as (title) of (name of corporate defendant)

A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of the complaint is attached to this notice. It has been filed in the (circuit or chancery) court for (county), Tennessee, and has been assigned civil action number ___________.

This is not a formal summons or notification from the court, but rather a request that you sign and return the enclosed waiver of service in order to save the cost of serving you with a judicial summons and an additional copy of the complaint. The cost of service will be avoided if I receive a signed copy of the waiver within ___ days after the date designated below as the date on which this Notice and Request is sent. I enclosed a stamped and addressed envelope (or other means of cost-free return) for your use. An extra copy of the waiver is also attached for your records.

If you comply with this request and return the signed waiver, it will be filed with the court and no summons will be served on you. The action will then proceed as if you had been served on the date the waiver is filed, except that you will not be obligated to answer the complaint before 60 days from the date designated below as the date on which this notice is sent.

If you do not return the signed waiver within the time indicated, I will take appropriate steps to effect formal service in a manner authorized by the Tennessee Rules of Civil Procedure and will then, to the extent authorized by those Rules, ask the court to require you (or the party on whose behalf you are addressed) to pay the full costs of such service. In that connection, please read the statement concerning the duty of parties to waive the service of the summons, which is set forth on the reverse side (or at the foot) of the waiver form.

I affirm that this request is being sent to you on behalf of the plaintiff, this day of (month) , (year) .

____________________________

Signature of Plaintiff's Attorney or

Unrepresented Plaintiff

This form should be used to waive service:

Waiver of Service of Summons

TO: ____________________________________________

I acknowledge receipt of your request that I waive service of a summons in the action of _______________, which is civil action number ___ in the _________Court. I have also received a copy of the complaint in the action, two copies of this instrument, and a means by which I can return the signed waiver to you without cost to me.

I agree to save the cost of service of a summons and an additional copy of the complaint in this lawsuit by not requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner provided by Rule 4.

I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or to the jurisdiction or venue of the court except for objections based on a defect in the summons or in the service of the summons.

I understand that a judgment may be entered against me (or the party on whose behalf I am acting) if an answer or motion under Rule 12 is not served upon you within 60 days after ____________.

_________ ___________________________

Date Signature

Printed/typed name: ________________________________

as ________________________________

of ________________________________.

To be printed on reverse side of the waiver form or set forth at the foot of the form:

Duty to Avoid Unnecessary Costs of Service of Summons;

Rule 4 of the Tennessee Rules of Civil Procedure requires certain parties to cooperate in saving unnecessary costs of service of the summons and complaint. A defendant located in the United States who, after being notified of an action and asked by a plaintiff located in the United States to waive service of a summons, fails to do so will be required to bear the cost of such service unless good cause be shown for the failure to sign and return the waiver.

It is not good cause for a failure to waive service that a party believes that the complaint is unfounded, or that the action has been brought in an improper place or in a court that lacks jurisdiction over the subject matter of the action or over its person or property. A party who waives service of the summons retains all defenses and objections (except any relating to the summons or to the service of the summons), and may later object to the jurisdiction of the court or to the place where the action has been brought.

A defendant who waives service must within the time specified on the waiver form serve on the plaintiff's attorney (or unrepresented plaintiff) a response to the complaint and must also file a signed copy of the response with the court. If the answer or motion is not served within this time, a default judgment may be taken against that defendant. By waiving service, a defendant is allowed more time to answer than if the summons had been actually served when the request for waiver of service was received.

Rule 4.08 is the former 4.05 renumbered.

Rule 4.09 is former 4.06 renumbered.

Advisory Commission Comments [1998].

The amendment of Rule 4.03 removes the former requirement that a return must be made within the time during which the person served must respond.

Advisory Commission Comments [2004].

New paragraph 4.01(3) sanctions lawyer misconduct such as that in Stempa v. Walgreen Company, 70 S.W.3d 39 (Tenn. Ct. App. 2001), where original counsel for plaintiffs "instructed" the clerk not to issue summonses for almost a year, despite the paragraph 4.01(1) instruction that clerks must issue a summons "forthwith."

Rule 4.04(10) is amended to clarify that service by certified or registered return receipt mail must be addressed to an individual specified in the applicable subparagraph of the rule. For example, service by mail upon a domestic corporation must be addressed to one of the individuals specified in Rule 4.04(4).

Advisory Commission Comment [2005].

The amendment to Rule 4.03(1) increases time for service of a summons from 30 to 90 days