Day on Torts
When a plaintiff files a complaint within the statute of limitations but fails to have process issued and served within the required time parameters, an extension of time for service of process may be granted if a trial court finds excusable neglect.
In Edwards v. Herman, No. E2017-01206-COA-R9-CV (Tenn. Ct. App. May 16, 2018), plaintiff filed a personal injury case based on an automobile-motorcycle accident. The complaint was filed within the one-year statute of limitations on April 21, 2015, and process was issued, but the “original summons was never returned to the trial court and…there is no record of it having been served upon [defendant].” On May 26, 2016, an alias summons was issued, which was served on defendant on June 11, 2016. On July 21, 2016, the sheriff’s department sent a letter to the court clerk stating that they could not find the original summons. The “issuance and service of process undisputedly occurred after the one-year deadline contained in Tennessee Rule of Civil Procedure 3.”
Defendant filed a motion to dismiss due to insufficient service of process, and plaintiff responded by filing a motion for an extension of time to obtain service of process under Rule 6.02. Plaintiff’s counsel filed an affidavit stating that he contacted the court clerk in February 2016 and was told the summons “had not yet been returned as served or not served,” and that the clerk’s office would not issue an alias summons until the sheriff’s office returned either the summons or a letter saying it had been lost. Plaintiff’s counsel understood from this conversation that the clerk’s office would contact him when they heard from the sheriff’s office. In May 2016, when he still had not received word from the clerk, his staff again contacted the clerk’s office, at which time the alias summons was issued.
The trial court held a hearing and ultimately granted plaintiff’s motion for an extension of time to obtain service of process, finding that plaintiff’s counsel had “established excusable neglect.” The trial court also found that defendant was “equitably estopped from asserting the expiration of the one year statute of limitation for personal injury actions.” Defendant appealed, and while the use of Rule 6.02 was affirmed, most of the decision was vacated.
The Court of Appeals first looked at whether Rule 6.02 could properly be used to extend the time for issuing and serving process, and whether facts outside the record could be considered in such a determination. Defendant argued that “because service of process was not properly effectuated, the trial court never obtained personal jurisdiction over her and therefore did not have authority to grant [plaintiff’s] motion for an enlargement of time in which to effectuate service.” (internal citation omitted). Plaintiff, on the other hand, asserted that “he did not request an extension of the applicable statute of limitations because his complaint was timely filed within one year of the subject accident,” and that his motion only concerned the “twelve month window set forth in Rule 3…to allow for service of process to be obtained.”
The Court of Appeals agreed with plaintiff, finding that it had “previously indicated that the deadline for reissuance and service of process contained in Tennessee Rule of Civil Procedure 3 can be extended, pursuant to Rule 6.02, in those instances when the complaint has been filed within the applicable statute of limitations but service of process was not timely effectuated due to excusable neglect.” Further, the Court affirmed that a trial court deciding whether to enlarge time under Rule 6.02 due to excusable neglect may consider “facts outside the four corners of the complaint.”
Next, the Court of Appeals considered whether the trial court was right to find excusable neglect in this situation. The Court noted that “[f]inding whether neglect is excusable is an equitable determination taking account of all relevant circumstances surrounding the party’s omission.” (internal citation and quotation omitted). The Court listed four factors to be considered, which it had cited in a previous case:
(1) the danger of prejudice to the party opposing the late filing, (2) the length of the delay and its potential impact on proceedings, (3) the reason why the filing was late and whether that reason or reasons were within the filer’s reasonable control, and (4) the filer’s good or bad faith.
(internal citation omitted).
In the present matter, the trial court found that defendant and her insurance company would not be prejudiced by an extension of time, especially because plaintiff’s counsel had corresponded with the insurance company at the time the complaint was filed and it was therefore aware of the litigation. The trial court, however, “made no findings with regard to the other circumstances and factors.” The Court of Appeals held that “[b]ecause the trial court failed to make the requisite findings regarding the relevant circumstances and failed to weigh those circumstances both with and against each other,” the finding of excusable neglect was vacated and remanded for further proceedings.
The Court of Appeals also vacated the trial court’s holding that defendant was estopped from asserting a statute of limitations defense, as plaintiff and defendant had no agreement to waive service of process or otherwise waive the statute of limitations.
This case is an important read for any attorney seeking to extend the time to issue and serve process under Rule 6.02. It contains a good summary of the standard for extending the time for service of process, the meaning of excusable neglect, and the factors that should be considered by a trial court considering such a motion.