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July 25, 2011

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.

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