Tolling of Statute of Limitations Not Lost by Failure to Comply with Return of Process Rule

Although Rule 4.03 of the Tennessee Rules of Civil Procedure requires return of process within ninety days of its issuance, a plaintiff failing to comply with this standard may still keep his or her case alive under Rule 3. In the recent case of Monday v. Thomas the Tennessee Court of Appeals explored the interplay between Rules 3 and 4.03. A plaintiff in Monday had been hit by a truck driven by an individual, and plaintiffs alleged the truck was owned by three other individuals and/or two businesses. In total, the plaintiffs named and alleged fault against 6 defendants (the driver, three individual owners, and two business owners).

Plaintiffs filed suit within the appropriate one-year statute of limitations, and initially had six summonses issued in September 2010. In May 2011, the plaintiffs had four alias summons issued against the driver, two of the individual owners, and one of the business owners. In January 2012, another set of alias summonses was issued, this time to the driver, one of the individual owners and the business owner included in the 2011 summonses, and one of the individual owners who was not included in the 2011 summonses. Finally, in November 2012, process was issued to the individual owner who was included in the May 2011 summonses but excluded from those issued in January 2012.

Rule 4.03(1) of the Tennessee Rules of Civil Procedure requires that a summons, even if not served, be returned to the court within ninety days of issuance. Rule 3 provides that if process is not served within ninety days of being issued, plaintiffs cannot rely on their original filing to toll any statutes of limitation unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process.

The trial court concluded that plaintiffs had failed to comply with Tennessee Rules of Civil Procedure 3 and 4.03, and therefore granted defendantss ruling, The Court of Appeals, however,  held that if new process is issued within one year of issuance of the previous process, a plaintiff may rely upon the original commencement to toll the statute of limitations,to the extent that new process was issued within one year of issuance of the previous process with respect to any defendant in this case, the statute of limitations was tolled with respect to that defendant.

Although this holding seems to make Rule 4.03(1) essentially meaningless, it was likely the correct result. Rule 4.03(1)s ninety day return requirement is not tied to any explicit penalty, and the tolling allowed by Rule 3 if process is reissued within one year does not appear to be connected to the return of the previously unserved process. Plaintiffs in Tennessee, however, would be wise to continue heeding the ninety day provision in Rule 4.03(1) to avoid unnecessary confusion and motion practice.

The citation is M2012-01357-COA-R3-CV (Tenn Ct. App. May 5, 2014).