Rule 4.Process

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.

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 of delivery where the delivery was deliberately prevented by the 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 alsoEuropean 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 is 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: Click here to view image. 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) sanctions 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).

Advisory Commission Comments [2005].

The amendment to Rule 4.03(1) increases time for service of a summons from 30 to 90 days.

Advisory Commission Comments [2016].

4:01(1): Rule 4.01(1) previously required the trial court clerk, upon the filing of the complaint, to "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." Subdivision (1) is amended by substituting the word "promptly" for the word "forthwith." This change is intended to emphasize that the clerk must issue the summons contemporaneously with, or soon after, the filing of the complaint. Because subdivision (1) requires the clerk to "promptly" issue the summons and deliver it for service, the clerk is not permitted to delay issuing the summons (or delivering it for service) at the request of the plaintiff or plaintiff s counsel.

4.01(3): Subdivision (3) previously provided: "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." Because the meaning of the word "ineffective" was not clear, subdivision (3) is amended to provide that, under the specific circumstances covered by the subdivision, the filing of the complaint "will not toll any applicable statutes of limitation or repose." The underlying rationale for subdivision (3) is that a person or entity named as a defendant in a complaint is entitled to learn without undue delay that the person or entity has been sued; although good-faith efforts to serve the defendant can necessarily take some time, subdivision (3) means that the plaintiff or plaintiffs counsel cannot intentionally delay the issuance or service of process for tactical reasons.

4.03: Rule 4.03 is amended to add new subdivision (3), providing that the "[f]ailure to promptly file proof of service does not affect the validity of service." Subdivision (3), which is derived from Federal Rule of Civil Procedure 4(1)(3), essentially adopts in the rule the Supreme Court's analysis in Fair v. Cochran, 418 S.W.3d 542, 546 (Tenn. 2013) (stating that "no language in Rule 4.03(a) [sic - in context, "4.03(1)"] states or implies that the failure to return proof of service promptly renders commencement ineffective to toll the statute of limitations").

4.04(1): Rule 4.04(1) provides that a defendant who evades or attempts to evade service of the summons and complaint may be served "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[.]" The address shown on the individual's drivers license, handgun-carry permit, utility bill, or other similar document may be used to prove that a particular location is the "individual's dwelling house or usual place of abode[.]"

4.04(11): The former last sentence of subdivision (11) ("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") is deleted because the Postal Service's notation that a registered or certified letter is "unclaimed" is not sufficient, by itself, to prove that service was "refused." 4.05(5): Subdivision (5) is amended in two ways. First, the last sentence of subdivision (5) ("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") is deleted, for the reason stated in the preceding Comment to Rule 4.04(11). Second, the following is added as the new last sentence of subdivision (5): "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." That text is derived from Rule 4.04(10) -- which applies to service by mail on defendants within the State -- and adding it to subdivision (5) imposes the same requirement on service by mail on defendants outside this State.

Advisory Commission Comments [2017].

4.04(10) and 4.05. Rules 4.04(10) and 4.05 are amended to clarify the circumstances under which the plaintiff may obtain a default judgment when the defendant was served by mail. Under amended Rule 4.04(10) and new Rule 4.05(6), service by mail can be the basis for entry of a default judgment if the record contains either: a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.04(10), Rule 4.05(5), or statute; or a return receipt stating that the addressee or the addressee's agent refused to accept delivery, which is deemed to be personal acceptance by the defendant pursuant to Rule 4.04(11) or 4.05(5). It should be noted that Rules 4.04(11) and 4.05(5) were amended in 2016 by deleting a former sentence in each rule which stated, in summary, that the United States Postal Service's notation on a return receipt that a properly addressed registered or certified letter was "unclaimed," or other similar notation, was sufficient evidence of the defendant's refusal to accept delivery. Thus, the Postal Service's notation that a registered or certified letter is "unclaimed" is no longer sufficient, by itself, to prove that service was "refused."

Advisory Commission Comments [2019].

4.04(10) and 4.05. Rules 4.04(10) and 4.05 are amended to clarify the circumstances under which the plaintiff may obtain a default judgment when the defendant was served by mail. Under amended Rule 4.04(10) and new Rule 4.05(6), service by mail can be the basis for entry of a default judgment if the record contains either: a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.04(10), Rule 4.05(5), or statute; or a return receipt stating that the addressee or the addressee's agent refused to accept delivery, which is deemed to be personal acceptance by the defendant pursuant to Rule 4.04(11) or 4.05(5). Additionally, when the defendant against which a plaintiff seeks a default judgment after service by mail is a domestic corporation, a foreign corporation authorized to conduct business in this state, or any entity required to register with the Tennessee Secretary of State and appoint a registered agent, the motion for default must be accompanied by evidence from the Tennessee Secretary of State showing that the name of the corporation and the name and address of the registered agent for service of process was correct on the certified mail. Normally, the "Filing Information" record for the entity should be sufficient "evidence" under Tenn. R. Evid. 803(8), as that public record shows the correct entity name and the name and address of the registered agent for service of process upon the records of the Tennessee Secretary of State. Statutory provisions must be consulted to determine the proper agent for any entity registered with the Tennessee Secretary of State: for example, when a domestic corporation or foreign corporation fails to have a registered agent for service of process or the agent cannot be found "with reasonable diligence," then the Tennessee Secretary of State is the agent for service of process for that corporation. Tenn. Code Ann., § 48-15- 104(b). As another example, when a foreign corporation is conducting business in this state without a certificate of authority, service of process is governed by statutory provisions such as Tenn. Code Ann. §§ 20-2-214, 215 and Tenn. Code Ann. § 48-15-104. For certain regulated industries, service of process may be governed by other statutes: for example, the commissioner of the Department of Commerce and Insurance is the statutory agent for service of process for domestic and foreign insurers authorized to operate in the state of Tennessee. Tenn. Code Ann. §§ 56-2-103 and 56-2-504. Nothing in this amendment alters the validity of service upon statutory agents under existing law, but service by mail that is refused cannot be the basis for a default judgment unless the party moving for default demonstrates to the trial court that service was made using the correct entity name and a correct agent for service of process.

It should be noted that Rules 4.04(11) and 4.05(5) were amended in 2016 by deleting a former sentence in each rule which stated, in summary, that the United States Postal Service's notation on a return receipt that a properly addressed registered or certified letter was "unclaimed," or other similar notation, was sufficient evidence of the defendant's refusal to accept delivery. Thus, the Postal Service's notation that a registered or certified letter is "unclaimed" is no longer sufficient, by itself, to prove that service was "refused."