Rule 4.01(3) of the Tennessee Rules of Civil Procedure provides a serious penalty for one who intentionally delays the prompt issuance of or service of a summons. Here is the rule:
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, the filing of the complaint (or third-party complaint) will not toll any applicable statutes of limitation or repose.
You read that correctly: if you intentionally cause a delay in prompt issuance or service of a summons you lose the benefit of date of filing of the complaint. Lose the filing date – and odds are your action will be dismissed as not being filed within the applicable statute of limitations if you filed the complaint shortly before the expiration of the statute of limitations.
A recent case shows how the problem (and horrible consequences) can arise. In Bridges v. Roth, No. W2020-01508-COA-R3-CV, 2021 WL 5142177 (Tenn. Ct. App. Oct. 27, 2021) the plaintiff did not have a summons issued until almost six months after filing the complaint and did not have the complaint served for over one year after the complaint was originally filed. The excuse: counsel was negotiating with defendant’s insurance carrier. More specifically, counsel said, “the delay was not intentional” but explained that “[o]ur conversations with [Mr. Roth’s] insurance carrier indicated that we would be able to resolve the matter, and we relied on that … statement from them, and we were actively trying to resolve the matter.” Id. at *2.
The Court said this:
filing of Ms. Bridges’s complaint was not effective because counsel for Ms. Bridges intentionally caused the delay of prompt issuance of a summons in hopes of settling the bodily injury claim with Mr. Roth’s insurance carrier. Despite the savings exceptions set out in Tenn. R. Civ. P. 3, the intentional withholding of service of process makes the filing of the complaint on May 31, 2019, ineffective. Consequently, all of Ms. Bridges’s claims are time-barred. As we stated in Jones v. Vasu, ‘the result may be harsh, but the directive in Rule 4.01(3) is clear.’
Id, at *3 (citations omitted).
The Court of Appeals also rejected plaintiff’s effort to assert that the insurer and defendant were estopped from asserting a limitations of action defense.
Here are some other cases where the plaintiff lost the benefit of the filing date and had his or her case dismissed for failure to comply with the statute of limitations:
Fuller v. Allianz Life Ins. Co. of N. Am., No. E2018-02267-COA-R3-CV, 2020 WL 830067 (Tenn. Ct. App. Feb. 19, 2020) (issue resolved on summary judgment, with plaintiff submitting no evidence rebutting allegations of intentional delay).
Jones v. Vasu, 326 S.W.3d 577, 581 (Tenn. Ct. App. 2010) (dismissal ordered; Jones’ attorney intentionally delayed service of process in order to obtain an expert opinion to support the medical malpractice claim).
Jones v. Cox, 316 S.W.3d 616, 621 (Tenn. Ct. App. 2008) (plaintiff delayed service of the summons and complaint in this legal malpractice case pending an appeal of an adverse judgment in the underlying action).
Here are cases where the plaintiff avoided a dismissal despite the defendant arguing that service of process was intentionally delayed:
Eskridge v. NHC Healthcare Farragut, LLC, No. E2019-01671-COA-R3-CV, 2020 WL 4530671 (Tenn. Ct. App. Oct. 6, 2020) (discussing the burden of proof on this issue and holding that service of the summons was not unreasonably delayed).
Crabtree v. Lund, No. E2009-01561-COA-R3-CV, 2010 WL 4272738 (Tenn. Ct. App. Oct. 28, 2010) (“The instant case does not involve the intentional conduct contemplated by Tenn. R. Civ. P. 4.01(3). The defendant does not identify any advantage, perceived or otherwise, that the plaintiffs gained as a result of process not being promptly service. By the same token, there is nothing about the plaintiffs’ alleged cause of action that might prompt them or their counsel to want to delay service of process; quite to the contrary, if the allegations of the complaint are true, they appear to have a good case. Furthermore, there are no external factors appearing in the record that arguably might suggest that it was in the plaintiffs’ best interest to “slow walk” their case.”)
How do you avoid this problem? Have the Clerk of Court issue the summons at the same time you file the complaint. (Tenn. R. Civ. P. 4.01 requires the Clerk to issue the summons “forthwith.”) If there is some legitimate reason the summons cannot be issued on that day, have it issued promptly thereafter.
Second, undertake reasonably prompt efforts to have the summons and complaint served. Remember, you don’t have to actually obtain service of the summons and complaint to obtain the benefit of the original filing date, but you must make an effort to obtain service. (Tenn. R. Civ. P. 3 addresses the how often and when a summons must be re-issued to keep the action alive.)
Some plaintiff’s lawyers are concerned about serving a complaint on a person when the lawyer is in active negotiations to settle the case, fearing that the insurance company will hire a lawyer and negotiations will break down. This can often be avoided with communication with the claims representative, followed up with a letter or email that reads something like this:
Dear ______ :
As we discussed, we filed today the attached complaint in the above-referenced matter. Efforts will begin promptly to serve the complaint on your insured.
This action is taken to meet the deadline for filing imposed by the statute of limitations, and does not indicate that we are not willing to continue settlement discussions.
This will confirm that your insured is not presently required to answer or otherwise plead to the complaint while settlement negotiations are underway. This will also confirm that if I believe that further negotiations are unlikely to be successful, I will let you so advise you by [writing] [email] and your insured will have thirty days after the date of that [email][letter] to answer or otherwise plead to the complaint.
Please let me know if this [email][letter] does not reflect our conversation. I look forward to continuing to work with you to resolve this matter.
The foregoing assumes, of course, that you are willing to consider settlement negotiations after a complaint has been filed.
One last word of warning. You don’t want those negotiations to drag on too long without getting confirmation that the defendant has been properly served and will not raise an inadequacy of process or service defense. Thus, calendar for a timely follow-up with the claims representative (or a lawyer who has made an appearance for the defendant) to address the status of the service of process issue.