Act Quickly To Solve Problems with Service of Process

A recent Court of Appeals case reminds plaintiffs’ attorneys of the importance of diligently reading any answer filed and working quickly to remedy problems related to the proper party being named and/or service of process. In Urban v. Nichols, No. E2014-00907-COA-R3-CV (Tenn. Ct. App. Sept. 4, 2015), plaintiff filed a negligence claim after injuring her foot and heel while using a waterslide at Willow Brook Lodge. In her complaint, filed on July 11, 2012 (which was exactly one year to the date from her injury), plaintiff named Robin Nichols and Willow Brook Lodge as defendants. It was undisputed that the complaint was only served, however, by personal service to Robin Nichols’s son.

The named defendants filed an answer on August 27, 2012. Therein, they asserted that the Lodge was actually owned by Accommodations by Willow Brook Lodge, LLC and that Ms. Nichols was not an owner. Further, they plead “insufficiency of process and insufficiency of service of process.”

Plaintiff’s counsel sent a letter to counsel for defendants on November 7, 2012, requesting permission to amend the complaint. Defendants responded by letter one week later denying the request. Plaintiff’s counsel took no further action in the case until February 7, 2013, again sending a letter requesting to amend the complaint to defendants. Defendants’ attorney sent another denial on July 22, 2013. Finally, on August 21, 2013, plaintiffs filed a motion to amend with the trial court. In response, defendants filed a motion for summary judgment on the grounds that the “failure to correctly serve process on either Ms. Nichols or the Lodge required the dismissal of the action.” The trial court granted summary judgment to defendants, and the Court of Appeals affirmed.

Pursuant to Rule 3 of the Tennessee Rules of Civil Procedure, “[i]f process remains unissued for 90 days or is not served within 90 days from issuance,…the plaintiff cannot rely upon the original commencement to toll the running of the statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from the issuance of the previous process, or if no process is issued, within one year of the filing of the complaint.” Here, nothing indicated that Ms. Nichols’s son “was purported as an officer, partner, or agent of either Ms. Nichols or the Lodge.” Even though he accepted the service, that was not enough to constitute valid service of process. The first service, then, was void.

Further, after defendants filed their answer asserting problems with both service of process and who was named as parties, plaintiffs waited well over two months to do anything. After their request to amend the complaint was denied by defendants, plaintiffs then waited almost three months before taking the same course of action that had already failed once. The Court of Appeals found that “[u]pon receipt of the November 15th letter, counsel for Ms. Urban should have turned his request to amend the complaint toward the court.” Instead, the record showed that plaintiff failed to file a motion to amend until well after one year had passed since the complaint was initially filed, and that in the intervening period plaintiff’s counsel did not attempt to “properly file service of process on the correct party to the action.” Neither the named parties nor the purported proper parties were ever properly served here. Accordingly, the trial court was correct to dismiss the case.

To save her case, plaintiff attempted to use the doctrine of equitable estoppel, alleging that defense counsel’s actions should estop defendants from relying on the statute of limitations. When rejecting this argument, the Court noted that the delays evinced by plaintiff’s counsel were “certainly not the type of ‘diligent pursuit of a claim’ required to bring a claim for equitable estoppel.”

This was the correct result in this case. Upon receiving an answer that asserts that the wrong parties are named and the correct parties were not properly served, a plaintiff cannot just sit on her hands and wait.  The rules of civil procedure wisely provide for a way to correct this type of problem, but timely action is required.  Where the record shows no diligence on plaintiff’s part, the court will not go out of its way to help save a cause of action. Here, no matter how meritorious plaintiff’s factual allegations may have been, plaintiff will not get her day in court because her lawyer waited too long to try to cure the problems in the original complaint.

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