Articles Posted in Civil Procedure

Where plaintiffs tried to certify a class in a food poisoning case that included all persons who ate at defendant restaurant during a certain time period that became sick due to either ingesting contaminated well water and/or coming into contact with sick employees, as well as these customers “spouses parents children or guardians” who also became infected, the Court of Appeals affirmed the denial of class certification based on the failure to prove commonality, typicality, and adequacy of representation.

In Rogers v. Adventure House LLC, No. E2019-01422-COA-R3-CV (Tenn. Ct. App. Aug. 24, 2020), plaintiffs became sick after eating at defendant restaurant. Plaintiffs then brought this suit, which “arose form approximately 102 events of food poisoning or illness purportedly related to numerous patrons who dined at or visited [defendant restaurant].” The restaurant, the restaurant owners, and the owner of the property on which the restaurant and well were located were named as defendants. Plaintiffs alleged that patrons became sick after consuming contaminated well water and/or interacting with infected restaurant employees. Plaintiffs also alleged that family members of people who visited the restaurant were infected.

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Tennessee’s Governor has extended authority for remote notarization and remote witnessing of documents, subject to compliance with certain procedures, through Sept. 30. The order also encourages users of these tools to make preparations to implement best practices for a safe return to in-person transactions beginning Oct. 1.

Recall too that under the Tennessee Rules of Civil Procedure declarations may be used in lieu of affidavits.

The Texas Supreme Court has announced a rule change to permit courts to authorize electronic service of a summons and complaint when traditional efforts to serve have been unsuccessful. Before approving electronic service, a court must consider if evidence shows the defendant uses a social media profile frequently enough that it would be “reasonably effective” to give them notice of the suit.

The comment to the new rule says as follows:

Amended Rule 106(b)(2) clarifies that a court may, in proper circumstances, permit service of citation electronically by social media, email, or other technology. In determining whether to permit electronic service of process, a court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology. Other clarifying and stylistic changes have been made.

Where plaintiff did not serve defendants until 89 days after summonses were issued, but defendants failed to present evidence that the delay was intentional, the Court of Appeals reversed dismissal of the case.

In Eskridge v. NHC Healthcare Farragut, LLC, No. E2019-01671-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2020), plaintiff filed an HCLA claim against defendants on January 31, 2018. Summonses were issued the following day, and plaintiff’s attorney opted to serve the summonses by private process rather than through the sheriff’s department. On May 1, 2018, eighty-nine days after the summonses were issued, plaintiff’s attorney personally served them on defendants through their registered agent. Defendants filed an answer in June 2018, which included the affirmative defense that they had not been properly served. Plaintiff did not file the returns of summonses with the trial court until January 4, 2019.

Plaintiff filed a “Motion to Dismiss or Strike Insufficiency of Service of Process or Insufficiency of Process Defense,” arguing that service was proper because it was completed within 90 days, or that in the alternative, defendants had waived the service of process argument. Defendants filed a motion to dismiss based on the assertion that service was “not ‘contemporaneously with’ or ‘soon after’ the summonses were issued,” and that “nothing but the intentional decision not to serve the summonses and Complaint explains the delay in service of the Complaint.”

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The Legislature has approved the following changes to the Tennessee Rules of Civil Procedure:

Where plaintiff failed to produce a photograph of an accident scene in response to requests for production, despite a consent order compelling a response to the discovery requests, the Court of Appeals affirmed the exclusion of a portion of defendant’s deposition testimony that plaintiff wanted to use at trial as a sanction.

In Cuddeford v. Jackson, No. W2019-00539-COA-R3-CV (Tenn. Ct. App. April 16, 2020), plaintiff filed a negligence suit against defendant after a motorcycle accident. Defendant was backing out of his driveway, and plaintiff alleged that defendant backed into plaintiff’s path, causing plaintiff to lose control of his motorcycle and crash.

In February 2016, defendant sent interrogatories and requests for production of documents to plaintiff, which including a request for “copies of any photographs…relating to the accident scene.” Plaintiff did not respond to the discovery requests, which eventually resulted in defendant filing a motion to compel. The trial court entered a “consent order for Plaintiff to respond to the interrogatories and request for production of documents by July 6, 2016.” The only document produced by plaintiff in response was a medical authorization.

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Where plaintiffs could not prove that a trucking company owned the tractor that caused an accident, and instead offered directly contradictory evidence on the issue, summary judgment for defendants was affirmed.

In Affainie v. Heartland Express Maintenance Services, Inc., No. M2019-01277-COA-R3-CV (Tenn. Ct. App. April. 1, 2020), plaintiffs were the driver and passenger of a car involved in a hit-and-run car accident when a tractor-trailer truck allegedly crossed into plaintiffs’ lane. Plaintiffs filed suit against defendant Heartland Express, whom they alleged owned the truck in question, as well as defendant State Farm under their uninsured motorist insurance policy.

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