Day on Torts Nugget: Service of Process by Regular Mail During the Coronavirus

The coronavirus has impacted the service of summons and complaints as many sheriff’s departments make the effort to reduce human contact.  Indeed, the coronavirus is having not only  a short-term impact on the civil justice system but will have a long-term impact as well.  Today we discuss an alternative to service of process by the local sheriff’s department.

Remember that the Tennessee Rules of Civil Procedure allow for the service of a summons and complaint by regular mail.  Rule 4.07 provides as follows:

(1) A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.

(2) An individual, corporation, or association that is subject to service and that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request

(a) shall be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent (or other agent authorized by appointment of law to receive service of process) of a defendant subject to service;

(b) shall be dispatched through first-class mail or other reliable means;

(c) shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;

(d) shall inform the defendant of the consequences of compliance and of a failure to comply with the request;

(e) shall set forth the date on which the request is sent;

(f) shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent; and

(g) shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.

If a defendant fails to comply with a request for waiver made by a plaintiff, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.

(3) A defendant that, before being served with process, timely returns a waiver so requested is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent.

(4) When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (3), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.

(5) The costs to be imposed on a defendant under paragraph (2) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.

Note that the rule permits service not only by U. S. Mail but also by “other reliable means.”  Presumably, this means that service may be accomplished via Federal Express, U.P.S., or one of the other commercial delivery services.

Here is the text of the forms referenced in the rule:

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.

Of course, a defendant has to agree to be served in this matter – the execution of the waiver form is defendant’s representation that insistence on formal service of  has been waived.   But some defendants will waive formal service of process, and if not the costs of service through a process server can be shifted to the defendant.

If you have a client who is still being treated and thus the delay built into the attempt to serve process in this way will not cause a problem for  the client, it makes sense to attempt to serve process in this way and, if it fails, put the cost of formal service on the defendant.   Remember to give the defendant no less than thirty days to return the waiver form and to set a reminder for yourself to have a summons re-issued and personal service attempted if the waiver form is not received in a timely fashion.

Query: will we now have defendants refuse to accept service of process claiming that the papers may be infected by the coronavirus?   How will the  courts treat such an argument?  Current reports indicated that the virus can live on paper for one day.


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