New Tennessee Opinion on Filing Proof Of Service of Summonses Increases Risk on Plaintiff’s Lawyers

The Tennessee Court of Appeals recently issued an opinion of interest to every Tennessee personal injury lawyer.  The Court of Appeals held in a car accident case that a plaintiff who serves a summons by certified mail must file the return receipt “promptly.” The court did not say what “promptly” means.  The failure to do resulted in dismissal of the case.

Plaintiff filed suit within the statute of limitations and had summons issued the same day. There was some dispute as to whether Plaintiff’s process server delivered the summons and complaint to Defendant within 90 days, but the Court of Appeals found that dispute immaterial. Instead, the Court of Appeals affirmed dismissal based on the statute of limitations because Plaintiff filed the returned summons and proof of service more than a year after it was issued.

The Court of Appeals held that, in order for a plaintiff to rely upon the original filing date for the purpose of commencing suit under Tenn. R. Civ. P. 3, the plaintiff must “promptly” return proof of service under Tenn. R. Civ. P. . 4.03(1).  Rule 4.03 states:

Summons; Return. – (1) The person serving the summons shall promptly make proof of service to the court and shall identify the person served and shall describe the manner of service. If a summons is not served within 90 days after its issuance, it shall be returned stating the reasons for failure to serve.  The plaintiff may obtain new summonses from time to time, as provided in Rule 3, if any prior summons has been returned unserved or if any prior summons has not been served within 90 days of issuance.

(2) When process is served by mail, the original summons, endorsed as below; an affidavit of the person making service setting forth the person’s compliance with the requirements of this rule; and, the return receipt shall be sent to and filed by the clerk.  The person making service shall endorse over his or her signature on the original summons the date of mailing a certified copy of the summons and a copy of the complaint to the defendant and the date of receipt  of return receipt from the defendant.  If  the return receipt is signed by the defendant, or by person designated by Rule 4.04 or by statute, service on the defendant shall be complete.  If not, service by mail may be attempted again or other methods authorized by these rules or by statute may be used.

In Faulks v. Crowder, 99 S.W.3d 116, 123 (Tenn. Ct. App. 2002), the Court of Appeals previously held that service by mail requires an affidavit be filed under Tenn. R. Civ. P. 4.03(2) “within a reasonable time in order for process to be effective.”  The Court of Appeals in Faulks affirmed dismissal because the plaintiff did not file an affidavit establishing service of process for more than a year and nine months after service on the defendants was delivered by certified mail.

In this case, the majority concluded that proof of personal service under Rule 4.03(1) also must be returned “promptly.” The majority noted that Rule 4.03(1) actually uses the word “promptly,” while Rule 4.03(2) does not include anything about the timing of filing proof of service. Based on this, the majority stated that proof of personal service under Rule 4.03(1) “arguably contains an even more stringent requirement than section (2).”

Judge Susano dissented.   He acknowledged that Rule 4.03(1) mandates a plaintiff “promptly make proof of service to the court,” and agreed with the majority that the plaintiff in this case did not do so by filing proof of service more than a year after the summons was issued. However, Judge Susano noted that Rule 4.03(1) does not expressly or implicitly say that the consequence of failing to “promptly” file proof of service is a determination that the lawsuit was never commenced under Rule 3. He explained that Tennessee law is clear that commencement of an action is accomplished only when a complaint is filed and process is served. Judge Susano stated that, to the extent that Faulks, “by analogy, can be read to mean otherwise and to support the majority’s conclusion, I disassociate myself from the holding in Faulks.”

What is the reasonably prudent plaintiff’s lawyer to do?  Have an office procedure in place that provides for the prompt filing of summonses and have employees follow it.  While it seems crazy that the penalty for failure to file a summons can result in the complete dismissal of a case even though the defendant acknowledges timely receipt of the summons and complaint, this risk now exists.  I cannot  reconcile this decision with the notion that the rules of civil procedure are in place to ensure the just, speedy and inexpensive resolution of civil actions, 

The case is Cristy Irene Fair v. Stephen Lynn Cochran, No. E2011-00831-COA-R3-CV (Tenn. Ct. App. March 30, 2012).   If a Rule 11 application for permission to appeal is filed in this case I believe it will be granted.

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