Subject to exceptions as are stated in particular rules, the Rules of Civil Procedure shall govern procedure in the circuit or chancery courts in all civil actions, whether at law or in equity, and in all other courts while exercising the civil jurisdiction of the circuit or chancery courts. These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.
The Rules of Civil Procedure shall not apply to general sessions
courts except as follows:
(1) The rules shall apply to general sessions courts exercising
civil jurisdiction of the
circuit or chancery courts;
(2) The rules shall apply after appeal or transfer of a general
sessions civil lawsuit to
circuit court; and
(3) Rule of Civil Procedure 69 governing execution on judgments
shall apply to civil
judgments obtained in general sessions courts.
[Amended by order effective July 1, 2005.]
Advisory Commission Comments.
This rule makes it clear that these Rules establish identical procedures for
circuit and chancery courts and for those other courts of record which have
been established by special or private acts of the General Assembly and which
have jurisdiction similar to that of the circuit or chancery court, or of both.
The Rules are not applicable to general sessions courts in the exercise of
jurisdiction conferred by general statutes, but if a particular general
sessions court exercises, under authority of a special or private act of the
General Assembly, special jurisdiction similar to that of the circuit or
chancery court, then these Rules do apply to that court in the exercise of that
special jurisdiction.
2005
Advisory Commission Comment. The amendment makes Rule
69 applicable to execution on judgments obtained in a general
sessions court.
All actions in law or equity shall be known as “civil actions.”
Advisory Commission Comments. Prior to the adoption of these Rules, Tennessee practice spoke of “civil actions at law”(T.C.A. §20-201) [since repealed] and of “suits”in chancery (T.C.A. §21-102) [since repealed]. Rule 2 simplifies the terminology of applying a single term to all civil actions.
All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be issued or not issued and whether process be returned served or unserved. If process remains unissued for 90 days or is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process or, if no process is issued, within one year of the filing of the complaint. [As amended July 1, 1979 and January 24, 1992, effective July 1, 1992, and by order adopted January 28, 1993, effective July 1, 1993; and by order filed February 1, 1995, effective July 1, 1995; and by order effective July 1, 1997; and by order effective July 1, 1998, and by order effective July 1, 2005.]
Advisory Commission Comment. Prior to the adoption of these Rules, a civil action at law could be continued and prosecuted, for purposes of applying statutes of limitation, after return of process unserved, by issuance of alias process from term to term or by recommencing suit within one year after failure to execute process. Rule 3 did not adopt the previous procedure regarding term-to-term issuance of alias process. Instead, the third sentence of Rule 3 contains a provision for obtaining issuance of new process within one year from issuance of the previous process. The Rule, of course, applies to all civil actions, whether legal or equitable in nature.
Advisory Commission Comment [1995]. Because the former rule created confusion between the one-year recommencement period and the one-year saving statute, the recommencement provision is eliminated. The earlier six-month reissuance period is extended from six months to a full year.
Advisory Commission Comment [1997]. Some clerks by local court rule may want to require lawyers to file a summons – not to toll the running of a statute of limitations, but rather to assist the clerks' workloads. Other clerks may want to handle the chore themselves. Either position is appropriate under revised Rule 3. "Commencement" for statute of limitations purpose would occur on the day the complaint is filed, regardless of the method chosen for preparation of a summons.
Deletion of the requirement of filing a summons in addition to a complaint returns the requirement for commencement to pre-1992 status. While there appeared to be reasons making the additional summons filing mandatory, other reasons militate against it. For one thing, the recent waiver of service provisions of Rule 4.07 may lull a lawyer into believing no summons need be filed under that procedure. For another, there is a hazard that a federal diversity case in Tennessee would not be commenced by simply filing the complaint required by Federal Rule 3. See Ragan v. Merchants Transfer & Warehouse Company, 337 U.S. 530 (1949), reaffirmed on this ground by Walker v. Armco Steel Corporation, 446 U.S. 740 (1980).
Note that Rule 4.01, both then and now, requires the clerk to issue a summons "forthwith" once a complaint is filed (unless there is a waiver under Rule 4.07). Moreover, the amended rule does not prevent a lawyer from filing a summons with the clerk. In any event, good practice mandates following up to ensure that a summons is promptly issued and served.
Advisory Commission Comment [1998]. The amendment to the third sentence removes the former eventuality of failure to return process within 30 days.
Advisory Commission Comment [2002]. A complaint filed by a pro se litigant incarcerated in a correctional facility is governed by the prisoner-filing provision in Rule 5.06.
Advisory Commission Comment [2005].
This amendment to the final sentence mirrors an amendment
to Rule 4.03 increasing time for service of a summons from 30 to
90 days.
4.01. Summons; Issuance; By Whom Served — (1) Upon the filing of the complaint the clerk of the court wherein the complaint is filed shall forthwith issue the required summons and cause it, with necessary copies of the complaint and summons, to be delivered for service to any person authorized to serve process. This person shall serve the summons, and the return indorsed thereon shall be proof of the time and manner of service. A summons may be issued for service in any county against any defendant, and separate or additional summonses may be issued against any defendant upon request of plaintiff. Nothing in this rule shall affect existing laws with respect to venue.
(2)A summons and complaint may be served by any person who is not a party and is not less than 18 years of age. The process server must be identified by name and address on the return.
(3) 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. [Amended by order filed December 10, 2003; effective July 1, 2004.]
4.02. Summons; Form — The summons shall be issued in the name of the State of Tennessee, be dated and signed by the clerk, contain the name of the court and county, the title of the action, and the file number. The summons shall be directed to the defendant, shall state the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of his or her failure to do so judgment by default will be rendered against that defendant for the relief demanded in the complaint. The summons shall state the name and address of the plaintiff's attorney, if any; otherwise, it shall state the plaintiff's address.
4.03. 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.
4.04. Service Upon Defendants within the State — The plaintiff shall furnish the person making the service with such copies of the summons and complaint as are necessary. Service shall be made as follows:
(1)Upon an individual other than an unmarried infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally, or if he or she evades or attempts to evade service, by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service, or by delivering the copies to an agent authorized by appointment or by law to receive service on behalf of the individual served.
(2)Upon an unmarried infant or an incompetent person, by delivering a copy of the summons and complaint to the person's residence guardian or conservator if there is one known to the plaintiff; or if no guardian or conservator is known, by delivering the copies to the individual's parent having custody within this state; or if no such parent is within this state, then by delivering the copies to the person within this state having control of the individual. If none of the persons defined and enumerated above exist, the court shall appoint a practicing attorney as guardian ad litem to whom the copies shall be delivered. If any of the persons directed by this paragraph to be served is a plaintiff, then the person who is not a plaintiff who stands next in the order named above shall be served. In addition to the service provided in this paragraph, service shall also be made on an unmarried infant who is fourteen (14) years of age or more, and who is not otherwise incompetent.
(3)Upon a partnership or unincorporated association (including a limited liability company) which is named defendant under a common name, by delivering a copy of the summons and of the complaint to a partner or managing agent of the partnership or to an officer or managing agent of the association, or to an agent authorized by appointment or by law to receive service on behalf of the partnership or association.
(4)Upon a domestic corporation, or a foreign corporation doing business in this state, by delivering a copy of the summons and of the complaint to an officer or managing agent thereof, or to the chief agent in the county wherein the action is brought, or by delivering the copies to any other agent authorized by appointment or by law to receive service on behalf of the corporation.
(5)Upon a nonresident individual who transacts business through an office or agency in this state, or a resident individual who transacts business through an office or agency in a county other than the county in which the resident individual resides, in any action growing out of or connected with the business of that office or agency, by delivering a copy of the summons and of the complaint to the person in charge of the office or agency.
(6)Upon the state of Tennessee or any agency thereof, by delivering a copy of the summons and of the complaint to the attorney general of the state or to any assistant attorney general.
(7)Upon a county, by delivering a copy of the summons and of the complaint to the chief executive officer of the county, or if absent from the county, to the county attorney if there is one designated; if not, by delivering the copies to the county court clerk.
(8)Upon a municipality, by delivering a copy of the summons and of the complaint to the chief executive officer thereof, or to the city attorney.
(9)Upon any other governmental or any quasi-government entity, by delivering a copy of the summons and of the complaint to any officer or managing agent thereof.
(10) Service by mail of a summons and complaint upon a defendant may be made by the plaintiff, the plaintiff's attorney or by any person authorized by statute. After the complaint is filed, the clerk shall, upon request, furnish the original summons, a certified copy thereof and a copy of the filed complaint to the plaintiff, the plaintiff's attorney or other authorized person for service by mail. Such person shall send, postage prepaid, a certified copy of the summons and a copy of the complaint by registered return receipt or certified return receipt mail to the defendant. If the defendant to be served is an individual or entity covered by subparagraph (2), (3), (4), (5), (6), (7), (8), or (9) of this rule, the return receipt mail shall be addressed to an individual specified in the applicable subparagraph. The original summons shall be used for return of service of process pursuant to Rule 4.03(2). Service by mail shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.04 or statute. If service by mail is unsuccessful, it may be tried again or other methods authorized by these rules or by statute may be used. [Amended by order filed December 10, 2003; effective July 1, 2004.]
(11) When service of a summons, process, or notice is provided for or permitted by registered or certified mail under the laws of Tennessee and the addressee or the addressee’s agent refuses to accept delivery and it is so stated in the return receipt of the United States Postal Service, the written return receipt if returned and filed in the action shall be deemed an actual and valid service of the summons, process, or notice. Service by mail is complete upon mailing. For purposes of this paragraph, the United States Postal Service notation that a properly addressed registered or certified letter is “unclaimed,” or other similar notation, is sufficient evidence of the defendant’s refusal to accept delivery. [Added by order filed December 10, 2003; effective July 1, 2004.]
4.05. Service Upon Defendant Outside This State — (1) Whenever the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:
(a)by any form of service authorized for service within this state pursuant to Rule 4.04;
(b)in any manner prescribed by the law of the state in which service is effected for an action in any of the courts of general jurisdiction in that state;
(c)as directed by the court.
The provisions of this Rule (4.05) are inapplicable when service is effected in a place not within any judicial district of the United States.
(2)Service of process pursuant to this Rule (4.05) shall include a copy of the summons and of the complaint.
(3)Service by mail upon a corporation shall be addressed to an officer or managing agent thereof, or to the chief agent in the county wherein the action is brought, or by delivering the copies to any other agent authorized by appointment or by law to receive service on behalf of the corporation.
(4)Service by mail upon a partnership or unincorporated association (including a limited liability company) that is named defendant under a common name shall be addressed to a partner or managing agent of the partnership or to an officer or managing agent of the association, or to an agent authorized by appointment or by law to receive service on behalf of the partnership or association.
(5)When service of summons, process, or notice is provided for or permitted by registered or certified mail, under the laws of Tennessee, and the addressee, or the addressee's agent, refuses to accept delivery, and it is so stated in the return receipt of the United States Postal Service, the written return receipt, if returned and filed in the action, shall be deemed an actual and valid service of the summons, process, or notice. Service by mail is complete upon mailing. For purposes of this paragraph, the United States Postal Service notation that a properly addressed registered or certified letter is “unclaimed,”or other similar notation, is sufficient evidence of the defendant's refusal to accept delivery.
4.06 Reserved.
4.07. Waiver of Service; Duty to Save Costs of Service; Request to Waive — (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.
4.08. Constructive Service. — In cases where constructive service of process is permissible under the statutes of this state, such service shall be made in the manner prescribed by those statutes, unless otherwise expressly provided in these rules.
4.09. Amendment. — At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
[Added by order filed February 1, 1995, effective July 1, 1995; by order effective July 1, 1997; and by order effective July 1, 1998. Amended by order effective July 1, 2005.]
Advisory Commission Comments. 4.01: Rule 4.01 sets out the procedure for issuance and service of the summons upon the filing of a complaint. The Rule also provides for the issuance of separate or additional summonses against any defendant upon request of the plaintiff.
The [1988] amendment allows private service of process at the plaintiff's option. Service by a sheriff or deputy remains an alternative. [1988.]
4.02: Rule 4.02 provides that the summons shall be directed to the defendant. Rule 4.02 requires that the summons notify defendant that judgment by default will be entered for failing to appear and defend within the proper time. The Rule also requires that the summons state the name and address of the plaintiff's attorney, or of the plaintiff if the plaintiff has no attorney.
4.03: Rule 4.03 fixes a definite time – 30 days – within which summons must be served; if not served within that period, it must be returned unserved. The Rule includes a requirement that the manner of service must be described and the person served must be identified on the return; thus any departure from the routine manner of service will instantly be apparent to the court and to defendant's counsel.
(2): Paragraph 2 explains how return of service of process by mail is accomplished. It is similar to the method used for return of service of process on nonresidents (Tenn. Code Ann. §§ 20-2-206; 20-2-211; 20-2-216). [1984.]
4.04(1): Paragraph (1) of Rule 4.04 requires that a copy of the process, as well as of the complaint, be left with defendant. The paragraph authorizes service, in case of evasion or attempt to evade service, by leaving copies of summons and complaint at defendant's dwelling house or usual place of abode; but the Rule includes a provision, for protection of the defendant, that the copies must be left with a person of suitable age and discretion residing therein, and requires that that person's name appear on the proof of service. The Rule also includes a provision allowing service on an agent of an individual defendant when the agent is authorized to receive service on behalf of the individual served.
(2): Paragraph (2) of Rule 4.04 specifies a number of "retreating" alternative methods of service on infants and incompetents. If the first stated method of service is not possible, the second may be used; if the second is not possible, the third may be used, etc. The Rule further safeguards the interest of an otherwise competent infant by providing that, in addition to the service upon the appropriate guardian, parent, etc., personal service must be had on an unmarried infant who is age 14 or over, if otherwise competent.
(3): Paragraph (3) of Rule 4.04 allows service upon a partnership by serving a partner or managing agent of the partnership. The paragraph allows service upon an unincorporated association by serving a managing agent or officer of the unincorporated association. The Rule is not intended to affect Tenn. Code Ann. § 20-2-212, which requires that both resident and nonresident unincorporated associations and organizations, including nonresident partnerships and trusts, must, before doing business in Tennessee, appoint an agent for service of process, and failing such appointment, authorizes service upon the Secretary of State. Rule 4.04(3) provides an additional means of service where a managing agent or officer of the unincorporated association can be found in the state.
(4): Rule 4.04(4) fixes the same rules for service upon a foreign corporation doing business in the state as apply to service upon domestic corporations. The Rule allows service upon any officer or the managing agent of the corporation, and thus relieves the process server of the necessity of seeking any particular officer first. The Rule also allows service upon the chief agent of the corporation in the county where the action is brought, and specifies that service may also be had on any other agent of the corporation authorized by appointment or law to receive service on behalf of the corporation. This clause preserves statutory provisions authorizing service upon the secretary of state or other officer where such service is authorized by statute.
(5): Paragraph (5) of Rule 4.04 governs service upon a nonresident individual who transacts business through an office or agency in the state, or upon a resident individual who transacts business in a county other than that in which he or she resides. Service may be had upon the person in charge of the office or agency in any action growing out of the business of that office or agency.
(7): In suits against a county, Rule 4.04(7) provides for service upon the chief executive officer of the county, or if that officer is absent from the county, upon the county attorney if there is one designated; if no county attorney is designated, service may be made on the county court clerk in the absence of the chief executive officer.
With the reorganization of county government structure, it is appropriate to substitute "chief executive officer of the county" for "presiding officer of the county court." In most counties the chief executive officer is the county executive. [1989.]
(8): In suits against a municipality, Rule 4.04(8) provides for service upon the chief executive officer thereof or upon the city attorney.
(9): In suits against any other governmental or quasi-governmental entity, paragraph (9) of Rule 4.04 provides for service upon any officer or managing agent thereof.
(10): Paragraph (10) of Rule 4.04 authorizes service of process by mail on residents of Tennessee. Service by mail should be inexpensive, expeditious and in most cases successful. If it is unsuccessful, traditional methods of service of process may be used. [1984.]
4.05: Rule 4.05 [now 4.08] makes it clear that, in the absence of express provision in these Rules, no changes in the statutes governing constructive service are intended.
4.06: Rule 4.06 [now 4.09] authorizes the court at any time to allow amendment of process or proof of service thereof, but conditions the exercise of the court's discretion upon the absence of a clear showing of material prejudice to the substantial rights of the party against whom process issued.
Advisory Commission Comments. [1995]. New Rule 4.07 allows waiver of service along the lines of the current federal rule. The incentive for defendants to waive service is found both in the expanded time for service of a motion or answer and in the sanction of shifting of costs expended in perfecting traditional service.
Advisory Commission Comments [1997]. The title of Rule 4.04 is changed from "Personal Service and Service by Mail" to "Service Upon Defendant Within This State." This change is to make clear that the emphasis of the revised Rule 4 is on the distinction between the exercise of jurisdiction by service of process within the state and all other cases.
Previously, subpart 5 of Rule 4.04 provided for service upon a foreign corporation as follows: “(5) Upon a foreign corporation which is not qualified to do business in this state, or which has no agent authorized by appointment to receive service on its behalf, by making service as provided by statute; provided, that in every such case a copy of the summons and of the complaint shall be delivered or forwarded to the person or official designated in the statute to receive the service.”
This subpart is deleted. A foreign corporation not qualified to do business in this state may be served as provided in Rule 4.04(4) if it is actually doing business in the state. Otherwise, service in a judicial district of the United States may be made according to Rule 4.05(3). For service outside the United States and its territories, see Rule 4A.
Former subpart 6 is renumbered to 5.
Revised Rule 4.04 also deletes former subpart 7, which provided for service upon nonresidents as follows: “(7) Upon other nonresidents, as provided by statute; provided, that in every such case, a copy of the summons and of the complaint shall be delivered or forwarded to the person or official designated in the statute to receive the service.”
Rule 4.05 now provides for service upon persons outside the state. Former subparts (8), (9), (10), (11), and (12) are renumbered to (6), (7), (8), (9), and (10), respectively.
Rule 4.05, which is entitled "Service upon Defendant Outside this State," is a new subdivision. It replaces former Rule 4.05, which was captioned "constructive service."
This rule is derived largely from current Tenn. Code Ann. § 20-2-215(d). Subpart (1)(a) provides for service upon non-residents by any means authorized for service upon a resident in Rule 4.04. Subpart (1)(b) is derived from Federal Rule of Civil Procedure 4(e)(1), which now permits service upon a defendant in whatever manner is permitted by the law of the state in which service is effected. Subpart (1) includes the words "when reasonably calculated to give actual notice," which is a Constitutional standard prescribed in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), to emphasize that any means employed must satisfy due process requirements as well those prescribed by rule or statute.
The last sentence in subpart (5) is an addition to bring the rule into conformity with contemporary practice of the United States Postal Service. It is designated to reinforce the power of courts to deal with individuals who attempt to evade service of process by refusing to accept mail delivery.
Courts are virtually unanimous in holding that service of process is not defeated by the defendant's refusal to accept a certified or registered letter. See, e.g. Nikwei v. Ross School of Aviation, Inc., 822 F.2d 939, 942 (CA10 1987) (service by mail returned marked "refused" and defendant's conclusory affidavit insufficient to invalidate service); Merriott v. Whitsell, 476 S.W.2d 230, 232 (Ark. 1972)(non-resident who is subject to jurisdiction of Arkansas courts cannot defeat jurisdiction by simple expedient of refusing to accept a registered letter; avoidance of service of proper process by a willful act or refusal to act on part of defendant "would create an intolerable situation and should not be permitted"); Cortez Development Co. v. New York Capital Group, Inc., 401 So. 2d 1163 (Fla. App. 1981)(when address was correct according to record and information received from persons at that address, defendant had succeeded in quashing earlier service accepted by another on his behalf at that address, and post office had returned mail marked refused, substituted service of process by certified mail upon individual was effective despite defendant's sworn statement that he did not refuse mail nor instruct anyone to refuse on his behalf); Thomas Organ Co. v. Universal Music Co., 261 So. 2d 323, 327 (La. App. 1972)("sending by mail a certified copy of citation and petition satisfies the requirements of "due process'"); McIntee v. State of Minnesota, Department of Public Safety, 279 N.W.2d 817 (Minn. 1979)(notice sent by certified mail was sufficient when addressee disregarded postal service notice to pick up the certified mail); Patel v. Southern Brokers, Ltd., 289 S.E.2d 642, 644 (S.C. 1982)("we think it can hardly be logically argued that one may avoid the process of the court by merely refusing to accept a letter known to contain a Summons and Complaint").
As one court has stated:
A person may not deny personal service on the grounds of lack delivery where the delivery was deliberately prevented by action of the person to be served. * * *
Where a statute provides for service by registered or certified mail, the addressee cannot assert failure of service when he willfully disregards a notice of certified mail delivered to his address under circumstances where it can be reasonably inferred that the addressee was aware of the nature of the correspondence.
Hankla v. Governing Board of Roseland Sch. Dist., 120 Cal. Rptr. 827, 834 (Cal. App. 1975). See also European American Bank v. Abramoff, 608 N.Y.S.2d 233 (N.Y. App. Div. 2 Dep't 1994)(service of process by mail is complete, regardless of delivery, when mailing itself is proper; bald denial of receipt of process served by mail insufficient to defeat service of process, regardless of delivery, when mailing itself it proper).
Actual notice in every case is not required. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). In Wuchter v. Pizzutti, 276 U.S. 13 (1928), the United States Supreme Court noted "a general trend of authority toward sustaining the validity of service of process, if the statutory provisions in themselves indicate that there is a reasonable probability that if the statutes are complied with, the defendant will receive actual notice ...." Id. at 24. In Nikwei v. Ross School of Aviation, Inc., supra, the court declared it "well settled, that as to notice, due process does not require exact certainty." 822 F.2d at 944.
Former Rule 4.06 is renumbered to 4.09.
Rule 4.07, first adopted in 1995, allows waiver of service along the lines of the current federal rule. The 1995 Comment originally contained a form for waiver of service; however, two minor corrections were made to that form in 1997. To avoid any confusion, the original form has been deleted from the 1995 Comment and has been replaced with the following amended form.
This
amended form should be used to request a waiver:
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.
Rule 4.08 is the former 4.05 renumbered.
Rule 4.09 is former 4.06 renumbered.
Advisory Commission Comments [1998]. The amendment of Rule 4.03 removes the former requirement that a return must be made within the time during which the person served must respond.
Advisory Commission Comments [2004]. New paragraph 4.01(3) would sanction lawyer misconduct such as that in Stempa v. Walgreen Company, 70 S.W.3d 39 (Tenn. Ct. App. 2001), where original counsel for plaintiffs "instructed" the clerk not to issue summonses for almost a year, despite the paragraph 4.01(1) instruction that clerks must issue a summons "forthwith."
Rule 4.04(10) is amended to clarify that service by certified or registered return receipt mail must be addressed to an individual specified in the applicable subparagraph of the rule. For example, service by mail upon a domestic corporation must be addressed to one of the individuals specified in Rule 4.04(4).
New Rule 4.04(11) conforms service on Tennessee defendants by "unclaimed" mail to Rule 4.05(5) concerning service on nonresidents.
Advisory Commission Comment [2005]. The amendment to Rule 4.03(1) increases time for service of a summons from 30 to 90 days
Service upon (1) an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, (2) a corporation, or (3) a partnership or other unincorporated association (including a limited liability company) may be effected in a place not within any judicial district of the United States:
(1)by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or
(2)if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:
(A)in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or
(B)as directed by the foreign authority in response to a letter rogatory or letter of request; or
(C)unless prohibited by the law of the foreign country, by
(i)delivery to the individual personally of a copy of the summons and the complaint; or
(ii)any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or
(3)in the case of a corporation, by service as provided in 4.04(4) upon any corporation that has acted as the corporate defendant's agent in relation to the matter that is the subject of the litigation or the stock of which is wholly owned by the corporate defendant.
(4)by other means not prohibited by international agreement as may be directed by the court. [Effective July 1, 1997.]
Advisory Commission Comments. Rule 4A, which is captioned “Service Upon Defendant in a Foreign Country,”is an entirely new rule. The Rule is based, with substantial revisions, on the current Federal Rule of Civil Procedure 4(f), but omits the phrase “Unless otherwise provided by federal law”from the first sentence. The bracketed parts have also been added to make clear that this provision is applicable to business associations as well as to individuals.
Litigation in the United States increasingly includes international elements and often foreign defendants, and certain treaties have important implications for civil litigation in American courts. For example, the multilateral international convention, “Service Abroad of Judicial and Extrajudicial Documents,”often referred to as the Hague Service Convention, became effective in the United States on February 10, 1969. Kadota v. Hosogai, 608 P.2d 68, 71 (Ariz. App. 1980). Its importance has increased dramatically in recent years as a consequence of both the increase in international trade and the addition of signatories to the convention.
Litigants are obliged to consider the possible impact of international treaties upon litigation. Reliance solely upon the specific provisions of Tennessee law may result in service of process being invalidated by treaties such as the Hague Service Convention. Wilson v. Honda Motor Co., Ltd., 776 F. Supp. 339, 342 (E.D. Tenn. 1991). Under the Supremacy Clause of the United States Constitution, treaty provisions for service abroad prevail over contrary state law, Kadota v. Hosogai, 608 P.2d 68, 71 (Ariz. App. 1980), and are thus controlling even in the absence of recognition by state rule. Rule 4A, however, reminds the lawyer to consider overriding treaties and also provides for alternative means of service.
Moreover, applicable treaties may actually expand the service options in some cases. See, e.g., Semet, Lickstein, Morgenstern, Berger, Friend, Brooke & Gordon, P.A. v. Sawada, 643 So.2d 1188, 1189 (Fla. App. 1994) (under the Supremacy Clause, service upon defendant in compliance with Hague Service Convention is valid service of process).
Subpart 4A(3) provides specific direction to the courts on a question that has not yet been addressed by Tennessee law. The provision establishes that a subsidiary corporation that is simply the alter ego of a foreign corporation may be the agent for service of process under appropriate circumstances. Given the hostility to litigation in American courts that may be found in some foreign countries, such a provision will allow an attorney in some cases to avoid the expense and inconvenience of having to attempt service in a foreign country.
Compliance with the Hague Service Convention, for example, is required only when service on the defendant is in a signatory country outside of the United States. If the defendant has an agent for service of process in the United States, service upon that corporation may be in accordance with state law. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707 (1988). If service of process on a domestic agent, therefore, is proper under both state law and the Due Process Clause of the United States Constitution, the Hague Service Convention does not apply.
Whether there has been compliance with the Hague Service Convention may in itself present tricky problems of interpretation. For example, a substantial body of authority has developed on both sides of the question of whether Japan permits service of process by mail. See Pennebaker v. Kawasaki Motor Corp., U.S.A., 155 F.R.D. 153, 154 (S.D. Miss. 1994); McClenon v. Nissan Motor Corporation in U.S.A., 726 F. Supp. 822, 825 (N.D. Fla. 1989).
For additional cases illustrating the importance of compliance with international treaties, see Ackermann v. Levine, 788 F.2d 830 (CA2 1986); Bankston v. Toyota Motor Corp., 123 F.R.D. 595 (W.D. Ark. 1989), aff'd and remanded, 889 F.2d 172 (CA8 1989); Harris v. Browning-Ferris Industries Chemical Services, Inc., 100 F.R.D. 775 (M.D. La. 1984); Lyman Steel Corp. v. Ferrostaal Metals Corp., 747 F. Supp. 389 (N.D. Ohio 1990); Raffa v. Nissan Motor Co., Ltd., 141 F.R.D. 45 (E.D. Pa. 1991); Honda Motor Co. Ltd. v. Superior Court of Santa Clara, 10 Cal. App. 4th 1043, 12 Cal. Rptr. 2d 861 (6th Dist. 1992).
(1) Whenever the law of this state permits service of any process, notice, or demand, upon a defendant outside the territorial limits of this state, the secretary of state may be served as the agent for that defendant. Service shall be made by delivering to the secretary of state the original and one copy of such process, notice, or demand, duly certified by the clerk of the court in which the suit or action is pending or brought, together with the proper fee. A statement that identifies the grounds for which service on the secretary of state is applicable must be included.
(2)The secretary of state shall endorse the time of receipt upon the original and copy and immediately shall promptly send, postage prepaid, the certified copy by registered or certified return receipt mail to the defendant, along with a written notice that service was so made. If the defendant to be served is a corporation, the secretary of state shall send the copy, along with a written notice that service of the original was made, addressed to such corporation at its registered office or principal office as shown in the records on the file in the secretary of state's office or as shown in the official registry of the state or country in which such corporation is incorporated. If none of the previously mentioned addresses is available to the secretary of state, service may be made on any one (1) of the incorporator's at the address set forth in the charter. The secretary of state may require the plaintiff or the plaintiff's attorney to furnish the latter address.
(3)In case it shall appear, either before or after the lodging of process as above provided that such nonresident is dead, then either original or alias process may directed to the personal representative of such nonresident deceased and shall be sent as herein provided to the court with probate jurisdiction for the county and state of the residence of the deceased at the time of the nonresident's death. No appearance need be made nor shall judgment be taken against such personal representative until the lapse of sixty (60) days from the date of mailing the process herein to such probate court. The procedure for mailing such process and proof of service thereof shall be as provided for service upon living persons.
(4)The fee paid by plaintiff, when fact of payment is endorsed on the original process by the secretary of state, shall be taxed as plaintiff's cost, to abide the judgment.
(5)Acceptance of such registered or certified mail by any member of the addressee's family, over the age of sixteen (16) years and residing in the same dwelling with him, shall constitute a sufficient delivery thereof to the addressee.
(6)The refusal or failure of a defendant's agent, to accept delivery of the registered or certified mail provided for in subpart (1), or the refusal or failure to sign the return receipt, shall not affect the validity of such service; and any such defendant refusing or failing to accept delivery of such registered or certified mail shall be charged with knowledge of the contents of any process, notice, or demand contained therein.
(7)When the registered or certified mail return is received by the secretary of state or when a defendant refuses or fails to accept delivery of the registered or certified mail and it is returned to the secretary of state, the secretary of state shall forward the receipt or such refused or undelivered mail to the clerk of the court which the suit or action is pending, together with the original process, notice, or demand, a copy of the notice sent to the defendant corporation and the secretary of state's affidavit setting forth his or her compliance with this Rule. Upon receipt thereof, the clerk shall copy the affidavit on the rule docket of the court and shall mark it, the receipt or refused or undelivered mail, and the copy of notice as of the day received and placed them in the file of the suit or action where the process and pleadings are kept, and such receipt or refused or undelivered mail, affidavit, and copy of notice shall be and become a part of the technical record in the suit or action and thereupon service on the defendant shall be complete.
(8)The secretary of state shall keep a record of all processes, notices, and demands served under this Rule, which record shall include the time of such service and the secretary of state's action with reference thereto. [Effective July 1, 1997; and amended by order effective July 1, 1998.]
Advisory Commission Comments. Rule 4B is new. It is based upon Tenn. Code Ann, §§20-2-211 & 20-2-215. It is added to ensure that all general provisions for service of process are included in the Tennessee Rules of Civil Procedure.
The amendment to the first sentence of the rule is technical. [1998.]
5.01. Service —When Required. Unless the court otherwise orders, every order required by its terms to be served; every pleading subsequent to the original complaint; every paper relating to discovery required to be served on a party; every amendment; every written motion other than one which may be heard ex parte; and, every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar papers shall be served upon each of the parties; but no service need be made on parties adjudged in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons, or for constructive service, in Rules 4, 4A, or 4B. [As amended by order entered January 31, 1984, effective August 20, 1984; and by order entered January 26, 1999, effective July 1, 1999.]
5.02. Service —How Made. — Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering to him or her a copy of the document to be served, or by mailing it to such person's last known address, or if no address is known, by leaving the copy with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at such person's office with a clerk or other person in charge thereof; or, if there is none in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Items which may be filed by facsimile transmission pursuant to Rule 5A may be served by facsimile transmission.
5.03. Service —Proof of. — Whenever any pleading or other paper is served under 5.01 and 5.02, proof of the time and manner of such service shall be filed before action is taken thereon by the court or the parties. Proof may be by certificate of a member of the bar of the court or by affidavit of the person who served the papers, or by any other proof satisfactory to the court.
5.04. Service —Numerous Defendants. — In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other persons, and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
5.05. Filing. — All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter, but the court may on motion of a party or on its own initiative order that depositions upon oral examination; interrogatories; requests for documents; requests for admission; and answers and responses thereto not be filed unless on order of the court or for use in the proceeding. [As amended by order entered January 31, 1984, effective August 20, 1984.]
5.06. Filing with the Court Defined. — The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event he or she shall note thereon the filing date and forthwith transmit them to the office of the clerk. The clerk shall endorse upon every pleading and other papers filed with the clerk in an action the date and hour of the filing. Recycled paper with the highest feasible percentage postconsumer waste content is recommended and encouraged for all papers filed with the court.
If papers required or permitted to be filed pursuant to the rules of civil procedure are prepared by or on behalf of a pro se litigant incarcerated in a correctional facility and are not received by the clerk of the court until after the time fixed for filing, filing shall be timely if the papers were delivered to the appropriate individual at the correctional facility within the time fixed for filing. This provision shall also apply to service of paper by such litigants pursuant to the rules of civil procedure. “Correctional facility”shall include a prison, jail, county workhouse or similar institution in which the pro se litigant is incarcerated. Should timeliness of filing or service become an issue, the burden is on the pro se litigant to establish compliance with this provision. [As amended by order entered May 25, 1993, effective July 1, 1993; and by order effective July 1, 1997; as amended by order entered January 28, 2000, effective July 1, 2000.]
Advisory Commission Comments. Rule 5 requires service of pleadings filed subsequent to the original complaint, orders, written motions, discovery papers, and other papers, upon each of the parties. Exceptions are made with respect to motions which may be heard ex parte (Rule 5.01), and with respect to pleadings filed by various defendants when the court orders that, because of numerous defendants, pleadings need not be served as between defendants (Rule 5.04). The Rule spells out the details of how service shall be made, and provides that proof of service is accomplished by certificate of a member of the bar, or by affidavit of the person serving the copy, or by other proof satisfactory to the court. The details set out in the Rule are designed to give every reasonable assurance that a copy of the pertinent papers in the suit actually reach adversary parties through their counsel or directly.
The Rule provides that copies need not be served on parties adjudged in default for failure to appear; but if the pleadings assert new or additional claims for relief against such parties in default, copies must be served upon the parties. Rule 55 sets out the circumstances and procedures for entering judgment by default for failure to appear.
5.01: In litigation involving more parties than a single plaintiff and single defendant, it sometimes is essential for every party to keep abreast of all procedural developments despite the lack of a direct effect on each litigant. Consequently, the Commission advises deletion of the "affected thereby" language; all papers must be served on all parties "unless the court otherwise orders." [1984.]
5.05: Often there is no utility in filing discovery papers with the clerk, and the amendment gives parties and judges the option of abandoning the requirement. A local court rule could constitute an "order" on the court's initiative. Because filing of such papers may be a necessary step toward offering them into evidence, however, the final wording is included: "or for use in the proceedings." [1984.]
Advisory Commission Comments [1997]. The amendment conforms pro se prisoner filings of trial court papers to the provision in T.R.A.P. 20(a) concerning appellate court papers.
Advisory Commission Comments [2000]. Pro se litigants who are incarcerated in correctional facilities cannot ensure the timely mailing of their mail and, as a consequence, cannot control the timely filing of their legal papers. This amendment deletes the previous, pro se prisoner-filing provision contained in Rule 5.06 and substitutes a clarified provision. The pro se prisoner-filing provision applies to all "papers required or permitted to be filed pursuant to the rules of civil procedure," including the filing of a complaint under Rule 3.
Court and Advisory Commission Comment. It is the public policy of the State of Tennessee to encourage recycling and the use of recycled products and materials. This policy is reflected in the Tennessee Solid Waste Planning and Recovery Act (title 68, ch. 211, part 6) and in the Solid Waste Management Act of 1991 (title 68, ch. 211, part 8). The underlined portion of Rule 5.06 denotes the addition to Rule 5.06 effective July 1, 1993, in which the Court recommends and encourages that all papers filed in the Tennessee courts be submitted on recycled paper.
Advisory Commission Comments [2004]. An additional method of service of pleadings and other papers, by facsimile transmission, is limited by the conditions in Rule 5A on filing by facsimile. For example, such service is limited to those documents which may be filed by facsimile transmission. Also, the sender bears the risk of ineffective transmission.
5A.01 Definitions.–
(1) "Facsimile filing" means the facsimile transmission of an original document which is received in the original document’s entirety by the trial court clerk and filed by the clerk.
(2) "Facsimile machine" means a device capable of sending a facsimile transmission using the international standard for scanning, coding, and transmission established for Group 3 machines by the Consultative Committee of International Telegraphy and Telephone of the International Telecommunications Union in regular resolution. Any facsimile machine used to send documents to a court must send at an initial transmission speed of no less that 4800 baud and be able to generate a transmission record.
(3) “Facsimile transmission" is the transmission of a document by a system that encodes a document into electrical signals, transmits these electrical signals over a telephone line, and reconstructs the signals to print a duplicate of the original document at the receiving end.
(4) “Sender” is the person or entity sending the facsimile transmission to the court.
(5) "Transmission record" means the document printed by the sending facsimile machine stating the telephone number of the receiving machine, the number of pages sent, the transmission time and date, and an indication of any errors in transmission.
5A.02 Filing procedures.–
(1) The trial court clerk shall accept papers for filing by facsimile transmission as provided in this rule. The trial court clerk shall maintain a dedicated telephone line for the clerk’s facsimile machine.
(2) Any document filed by facsimile transmission shall be accompanied by the uniform cover sheet set forth in the comment to this rule stating: the caption of the case; the trial court docket number; the title of the transmitted document; the number of pages of the facsimile transmission (including the cover sheet); the sender’s name, address, voice telephone number, and facsimile telephone number; and the date of the facsimile transmission. The cover sheet shall also contain clear and concise instructions as to the filing of the transmitted document.
(3) The filing of the original document shall not be required after facsimile filing. The sender shall retain the original document in the sender’s possession or control during the pendency of the action and shall produce such document upon request by the court or any party to the action. Upon failure to produce such document, the court may strike the document filed by facsimile transmission.
(4) The following documents shall not be filed in the trial court by facsimile transmission:
(a) Any pleading or similar document for which a filing fee and/or litigation tax must be paid (excluding the facsimile service charge), including, without limitation, a complaint commencing a civil action, an appeal from the general sessions court to the circuit court, and an appeal to a trial court from an inferior tribunal, board or officer;
(b) A summons;
(c) A will or codicil to a will; a bond; or any pleading or document requiring an official seal;
(d) A confidential document that the court previously has ordered to be filed under seal;
(e) A notice of appeal.
(5) No facsimile filing shall exceed ten (10) pages in length, including the cover sheet, unless authorized by the court; absent such authorization, a facsimile transmission exceeding ten (10) pages, including the cover sheet, shall not be filed by the clerk. A facsimile filing may not be split into multiple facsimile transmissions to avoid this page limitation. All documents filed by facsimile transmission shall comply with all applicable rules of court, including, without limitation, rules governing the content and form of pleadings and other papers; the signing of pleadings, motions and other papers; and the service of all papers.
(6) The original document sent by facsimile transmission shall be on letter-sized paper (8 ½ by 11 inches). Originals on larger-sized paper may be reduced prior to facsimile transmission if the reduction to 8½ by 11 inch paper renders a legible and complete copy of the original.
(7) The clerk is not required to notify the sender by return facsimile transmission or voice telephone call that the facsimile document has been received by the clerk or that the facsimile document has not been received in its entirety. This provision shall not relieve the clerk of any notice requirements imposed by law or by the court.
5A.03 Effect of facsimile filing.–
(1) A facsimile transmission received by the clerk after 4:30 p.m. but before midnight, clerk’s local time, on a day the clerk’s office is open for filing shall be deemed filed as of that business day. A facsimile transmission received after midnight but before 8:00 a.m., clerk’s local time, on a business day, or a facsimile transmission received by the clerk on a Saturday, Sunday, legal holiday, or other day on which the clerk’s office for filing is closed, shall be deemed filed on the preceding business day. Upon receiving a facsimile transmission in its entirety, the clerk shall note the filing date on the facsimile filing in the same manner as with original pleadings or other documents filed by mail or in person. For purposes of this provision, “received by the clerk” means the date and time the facsimile transmission is received by the clerk as indicated by the date and time printed on the facsimile transmission by the clerk's facsimile machine.
(2) A signature reproduced by facsimile transmission shall be treated as an original signature.
(3) The sender bears the risk of using facsimile transmission to convey a document to a court for filing, including, without limitation, malfunction of facsimile equipment, whether the sender’s or the clerk’s equipment; electrical power outages; incorrectly dialed telephone numbers; or receipt of a busy signal from the clerk’s facsimile telephone number. In the event that a facsimile transmission to the clerk is unsuccessful, the sender may file the document by mail or in person; in such cases, the filing date shall be determined as provided in Rules 5.06 and 6, Tenn. R. Civ. P. However, if a facsimile transmission is not received in its entirety by the clerk because of a transmission error, the sender may move acceptance nunc pro tunc by filing a written motion with the court. The motion shall be accompanied by the sender’s transmission record, the original document that was the subject of the attempted transmission, and an affidavit of the sender detailing the facts concerning the attempted transmission. The court, in its discretion, may order filing of the original document nunc pro tunc.
5A.04 Facsimile service charge.–
The sender of the facsimile transmission shall pay to the trial court clerk a service charge for each facsimile filing in the amount of five dollars ($5.00) plus one dollar ($1.00) per page of the facsimile filing (including the cover sheet). Payment of the service charge, accompanied by a copy of the facsimile filing cover sheet, shall be received by the trial court clerk not later than ten (10) calendar days after the facsimile filing. The facsimile service charge shall be paid by the sender as provided in this rule and shall not be taxed as court costs, subject to the following exception. If the sender is either a party who has been allowed to proceed on a pauper’s oath or an attorney for such a party, timely payment of the facsimile service charge under this rule is suspended, and the charges shall be taxed as court costs.
Advisory Commission Comment
Rule 5A is adopted to provide for the filing of papers in the trial court by facsimile transmission. Rule 5A.02(4), however, expressly provides that certain documents (listed in that subparagraph) may not be filed via facsimile transmission. In addition, the Commission points out that Rule 5A does not authorize the service of documents by facsimile transmission. See Rule 5A.02(5) (requiring, in pertinent part, compliance with all applicable rules of court governing service of papers). Please refer to Rule 5, Tenn. R. Civ. P., for the provisions in these Rules governing the service of pleadings and other papers after the filing of the original complaint; amended Rule 5.02 permits service by fax if filing by fax is permitted.
Rule 5A.02(1) requires the trial court clerk to maintain a dedicated telephone line for the clerk’s facsimile machine. In those jurisdictions in which it is not feasible for each clerk to maintain a dedicated telephone line for facsimile filing, it is the Commission’s intent that the respective clerks may jointly maintain a dedicated telephone line for the use of the various clerks. For example, the Circuit Court Clerk and the Clerk & Master in such a jurisdiction may share a dedicated telephone line for facsimile filings in their respective courts.
TENNESSEE COURTS
UNIFORM FACSIMILE FILING COVER SHEET
TO (COURT CLERK): ____________________________________________________
WITH (COURT): ____________________________________________________
CLERK’S FAX NUMBER: ____________________________________________________
CASE NAME: ____________________________________________________
DOCKET NUMBER: ____________________________________________________
TITLE OF DOCUMENT: ____________________________________________________
FROM (SENDER): ____________________________________________________
SENDER’S ADDRESS: ____________________________________________________
____________________________________________________
SENDER’S VOICE TELEPHONE NUMBER: ____________________________________
SENDER’S FAX TELEPHONE NUMBER: ____________________________________
DATE: _______________ TOTAL PAGES, INCLUDING COVER PAGE: ___________
FILING INSTRUCTIONS/COMMENTS (attach additional sheet if necessary):
Unless authorized by the Court, a facsimile transmission
exceeding ten (10) pages,
including the cover page, shall not be filed by the clerk.
[Added by order filed december 10, 2003;effective July 1, 2004.]
6.01. Computation. — In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included.The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the court clerk inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. [As amended by order entered January 21, 1988, effective August 1, 1988; and by order entered January 26, 1999, effective July 1, 1999, and by order filed December 10, 2003; effective July 1, 2004.]
6.02. Enlargement. — When by statute or by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion, (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done, where the failure to act was the result of excusable neglect, but it may not extend the time for taking any action under Rules 50.02, 59.01, 59.03 or 59.04, except to the extent and under the conditions stated in those rules. This subsection shall not apply to the time provided in Tennessee Rule of Appellate Procedure 4(a) for filing a notice of appeal, nor to the time provided in Tennessee Rule of Appellate Procedure 24(b) & (c) for filing a transcript or statement of evidence. [Effective July 1, 2001]
6.03. Unaffected by Expiration of Term —Chambers Orders. — (1) The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it.
(2)The judge or chancellor may make or direct in chambers any order, rule, judgment or decree in any civil action, except the conducting of a trial when a jury is required and of the hearing and determination by final decree of any contested divorce case unless consented to by the parties. [As amended July 1, 1979.]
6.04. For Motions —Affidavits. — (1) A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five (5) days before the time specified for the hearing, unless a specific period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application.
(2)When a motion is supported by affidavit the affidavit shall be served with the motion; except as otherwise provided in Rule 56.04 and Rule 59.03, opposing affidavits may be served not later than one (1) day before the hearing, unless the court permits them to be served at some other time. [As amended by order entered January 26, 1999, effective July 1, 1999 and by order entered January 28, 2000, effective July 1, 2000.]
6.05. Additional Time after Service by Mail. — Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail three (3) days shall be added to the prescribed period.
Advisory Commission Comments. If a clerk's office is closed all day on a date other than a Saturday, Sunday, or legal holiday, a lawyer would be unable to gain entrance to file a document on the "deadline." Consequently the [1988] amendment extends the deadline to the next business day that the courthouse is open. [1988.]
6.01: By statute, "The time within which any act provided by law is to be done, shall be computed by excluding the first day and including the last, unless the last day is a Saturday, a Sunday, or a legal holiday, and then it shall also be excluded." Tenn. Code Ann. § 1-3-102.
Rule 6.01 adopts the same formula as that provided by the foregoing statute, with two additions: (1) If the last day of a period falls on a Saturday, Sunday, or legal holiday, the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. Thus, if the period would normally expire, for example, on November 9, but November 9 fell on a Saturday, November 10 was a Sunday, and November 11 was a legal holiday, the Rule makes it clear that the period would run until the end of the day, Tuesday, November 12.
(2) When the prescribed period is less than eleven days, intermediate Saturdays, Sundays and holidays are excluded. When the time allowed is so short, the party limited by the time should not be further handicapped by losing one or more days because normal business operations are suspended by Saturday, Sunday, or legal holiday observances.
6.02: Rule 6.02 establishes a single standard for the courts to follow in granting enlargement of the time periods within which various acts must be done. Extension is to be allowed liberally when request is made before the original period or any previous extension thereof has expired. Extension is to be allowed, even after expiration of the original period or any previous extension thereof, where the failure to take timely action was due to excusable neglect. The power to enlarge the time under this Rule does not apply to time periods fixed by Rule 50.02 (Party whose motion for directed verdict made at close of all the evidence was not granted, may, within 30 days after entry of judgment or discharge of jury without a verdict, move for judgment in accordance with the party's motion for directed verdict); Rule 59.01 (Motion for new trial must be filed and served within 30 days after entry of judgment); Rule 59.03 (Motion to alter or amend a judgment must be filed within 30 days after entry of judgment); or Rule 59.04 (Court on its own initiative may alter or amend judgment or order a new trial within 30 days after judgment).
6.03: The time within which an act is required to be done or a proceeding taken is fixed to allow the parties a reasonable time in which to act. To allow this reasonable time to be affected or limited by the continuance or expiration of a term of court is to introduce a variable which may make the time allowed in a particular case unreasonable and thus work a hardship upon a party. Accordingly, this Rule eliminates court terms as a factor in computing allowable time periods.
6.04: Rule 6.04 fixes five days for all motions requiring notice, unless a different time is fixed for a particular motion by these Rules or by the court. The exception referred to in paragraph (2) of Rule 6.04 allows a party 10 days to file opposing affidavits in response to affidavits supporting a motion for a new trial.
6.05: Rule 6.05 is included to guard against injustice caused by loss of time required for notice to be delivered through the mails.
Advisory Commission Comments [1999]. 6.01. The expansion of seven to eleven days in the final sentence of Rule 6.01 is to eliminate confusion over whether the mailing of a five-day notice creates an eight-day period because of Rule 6.05. No longer will that be an issue, as any period less than eleven days requires exclusion of weekends and holidays.
6.04. Rule 6.04(2) is amended to make clear that summary judgment affidavits are governed by Rule 56.04, which contains a different service deadline.
Advisory Commission Comments [2000]. The amendment to Rule 6.04(2) is needed to conform to the renumbering of paragraphs in Rule 59.
Advisory Commission Comments [2001]. This technical amendment to Rule 6.02 deletes references to repealed statutes and substitutes references to the Rules of Appellate Procedure.
Advisory Commission Comments [2004]. The second sentence of Rule 6.01 is altered to adopt federal language covering snow days and the like which make a clerk's office "inaccessible" for filing. Earlier language required that the office be "closed."
7.01. Pleadings. — There shall be a complaint and an answer; and there shall be a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summonsed under the provisions of Rule 14; and there shall be a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or to a third-party answer. [As amended by order entered January 26, 1999, effective July 1, 1999.]
7.02. Motions and Other Papers. — (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(2)The rules applicable to captions, signing, and other matters form of pleadings apply to all motions and other papers provided for by these rules.
7.03. Demurrers, Pleas, etc., Abolished. — Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.
Advisory Commission Comments. 7.01: Rule 7.01 adopts the federal practice of cutting off pleadings after complaint and answer, except that a reply or answer by plaintiff is allowed in cases of counterclaim and cross-claim, and a third-party answer is allowed where a third-party complaint is filed.
7.02: Because of the importance of motions in the procedures set out in these Rules, it is desirable that motions, other than those made at a hearing or trial and which may not have been anticipated in time to put them in writing, be made in writing.
7.03: Rule 7.03 is a corollary to the simplification of a pleading provided in Rule 7.01. The function of the demurrer, plea, etc., can be served by one of the pleadings allowed under Rule 7.01 or by motion.
8.01. Claims for Relief. — A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain: (1) a short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.
8.02. Defenses —Form of Denials. — A party shall state in short and plain terms his or her defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an averment, he or she shall so state and this will have the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all the averments except such designated averments or paragraphs as he or she expressly admits; but, when the pleader does so intend to controvert all its averments, he or she may do so by general denial subject to the obligations set forth in Rule 11.
8.03. Affirmative Defenses.–In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute accord and satisfaction, arbitration and award, express assumption of risk, comparative fault (including the identity or description of any other alleged tortfeasors), discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, statute of repose, waiver, workers’ compensation immunity, and any other matter constituting an affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation.[As amended by order adopted January 28, 1993, effective July 1, 1993; amended by order entered January 28, 2000, effective July 1, 2000.Amended by order entered December 29, 2005, effective July 1, 2006.]
2006 Advisory Commission Comment
The affirmative defenses of statute of repose and workers’ compensation immunity are added to the list in Rule 8.03.
8.04. Effect of Failure to Deny. — Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. Averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading, except that the following allegations must be proved:
Those against a person under any disability;
(2)Those against executors or administrators;
(3)Those necessary to sustain an action for divorce or annulment;
(4)Those against persons whose names and residences are unknown, where there has been no attachment of property.
8.05. Pleading to Be Concise and Direct —Statutes, Ordinances and Regulations —Consistency. — (1) Each averment of a pleading shall be simple, concise and direct. No technical forms of pleading or motions are required. Every pleading stating a claim or defense relying upon the violation of a statute shall, in a separate count or paragraph, either specifically refer to the statute or state all of the facts necessary to constitute such breach so that the other party can be duly apprised of the statutory violation charged. The substance of any ordinance or regulation relied upon for claim or defense shall be stated in a separate count or paragraph and the ordinance or regulation shall be clearly identified. The manner in which violation of any statute, ordinance or regulation is claimed shall be set forth.
(2)A party may set forth two (2) or more statements of a claim or defense alternately or hypothetically. When two (2) or more statements are made in the alternative and one (1) of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he or she has, regardless of consistency.
8.06. Construction of Pleadings. — All pleadings shall be so construed as to do substantial justice.
Advisory Commission Comments. 8.01: Rule 8.01 provides that a pleading that sets forth a claim for relief must contain a short and plain statement of the claim and a demand for judgment for the relief sought. The rule also authorizes demands for alternative or different types of relief.
8.02: Rule 8.02 provides for the filing of the answer, which sets forth defenses to each claim asserted and which admits or denies the averments upon which the adverse party relies. If the defendant intends to controvert every averment of the complaint, the defendant may do so by a general denial, but the signature of the defendant’s attorney, as required by Rule 11, is the certificate of the attorney that there is good ground to support the pleading; general denials under these circumstances should be rare.
8.03: Rule 8.03 lists affirmative defenses which must be raised in a pleading to a preceding pleading. The rule provides that the party relying upon a matter constituting an avoidance or affirmative defense must set forth the facts constituting such defenses in short and plain terms, just as under Rule 8.02 the party must set forth express denials of claims asserted by the adverse party.
8.04: Rule 8.04 adopts the general principle that averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading. Four special cases involving subject matter or persons which might make the general rule oppressive are excepted from the operation of the Rule.
8.05: Rule 8.05(1) sets out the requirements for stating a claim or defense based upon a statute, ordinance or regulation. Rule 8.05(2) allows the statement of all the claims or defenses a party has, and expressly permits inconsistent pleading.
Advisory Commission Comments [1993]. "Comparative fault" is substituted for "contributory negligence" in light of McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Note that the defendant must identify or describe other alleged tortfeasors who should share fault, or else the defendant normally would be barred from shifting blame to others at trial.
Advisory Commission Comments [1998]. Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994), transformed implied assumption of risk from an absolute defense to a criterion position within comparative fault analysis. Contractual express assumption remains as a complete defense to liability.
Advisory Commission Comment [2000]. The former defense of injury by fellow servant was abolished by Glass v. City of Chattanooga, 858 S.W.2d 312 (Tenn. 1993).
Advisory Commission Comments [2004]. Because of the prevalence of long arm statutes providing personal jurisdiction over nonresidents, the amendment deletes the requirement of a prima facie case when the nonresident defendant fails to deny an allegation in the complaint.
9.01. Capacity. — It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or to be sued in a representative capacity, he or she shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.
9.02. Fraud, Mistake, Condition of the Mind. — In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
9.03. Conditions Precedent. — In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
9.04. Official Document or Act. — In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.
9.05. Judgment. — In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board of officers, it is sufficient to aver the judgment or decision without setting forth matters showing jurisdiction to render it.
9.06. Time and Place. — For the purpose of testing the sufficiency of a pleading, averments of time and place are material, and shall be considered like all other averments of material matter.
9.07. Special Damage. — When items of special damage are claimed, they shall be specifically stated.
Advisory Commission Comments. Rule 9 sets forth rules governing the pleading of several specific matters about which questions might arise. The Rule is not intended to create exceptions to the principles set out in Rule 8, but is rather an exemplification of those principles in specific situations. The requirement in Rule 9.02 —in averments of fraud or mistake the circumstances constituting fraud or mistake must be set forth with particularity —is not intended to require lengthy recital of detail. Rather, the Rule means only that general allegations of fraud and mistake are insufficient; the pleader is required to particularize, but by the “short and plain”statement required by Rule 8.01.
In addition to meeting all other applicable rules governing the filing of pleadings, any complaint or petition seeking a termination of parental rights shall contain the following notice: Any appeal of the trial court 's final disposition of the complaint or petition for termination of parental rights will be governed by the provisions of Rule 8A, Tennessee Rules of Appellate Procedure, which imposes special time limitations for the filing of a transcript or statement of the evidence, the completion and transmission of the record on appeal, and the filing of briefs in the appellate court, as well as other special provisions for expediting the appeal. All parties must review Rule 8A, Tenn. R. App. P., for information concerning the special provisions that apply to any appeal of this case. [Amended by order filed January 15, 2004; effective July 1, 2004.]
10.01. Caption —Names of Parties. — Every pleading shall contain a caption setting forth the name of the court and county wherein the action is filed or is pending, the title of the action, the file number, and a designation as in Rule 7.01. In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.
10.02. Paragraphs —Separate Statements. — All averments of claim or defense shall be made in numbered paragraphs, contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate tra