RULE 4. PROCESS

RULE 4.01: SUMMONS; ISSUANCE; BY WHOM SERVED; SANCTION FOR DELAY.

(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 endorsed 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.]

RULE 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.

RULE 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.

RULE 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.]

RULE 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.

RULE 4.06: RESERVED.

 

RULE 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.

RULE 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.

RULE 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 theUnited States may be made according to Rule 4.05(3). For service outside theUnited 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

RULE 4A: SERVICE UPON DEFENDANT IN A FOREIGN COUNTRY.

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. SeePennebaker 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).

RULE 4B: SERVICE UPON SECRETARY OF STATE AS AGENT FOR SERVICE OF PROCESS.

(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.]