File. Serve. Now.

Tennessee Rule of Civil Procedure 4.01(3) provides as follows:

 If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective.

I don’t know what "prompt" means.  Is turning process over to a process server in one day "prompt’?  I would think so.  What about five days?   What if it is "promptly" given to a process server who then holds it for twenty days?

I do know what is not prompt.  And so does the Tennessee Court of Appeals.   Butler v. Lamplighter Apartments tells us that waiting eleven months to serve a summons and complaint is not prompt.  Case dismissed.

Why was service delayed?  "Plaintiffs’ counsel admitted that she made a conscious, voluntary decision to prevent service of process. Counsel explained that she withheld the summons because she hoped to settle the case."     Well, it was good of counsel to admit this, but I must say that I cannot think of why one would delay service of process for this reason.  It is not uncommon to file a complaint, have it served, and then reach agreement with the defendant that he, she or it need not answer pending settlement negotiations.  But not serve the summons and complaint for a almost a year?  I am not sure what good that would accomplish. 

This decision sends the message loud and clear:  File.  Serve.  Now.

Read the opinion No. M2007-02508-COA-R3-CV – Filed August 20, 2008) here.

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