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RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS

July 25, 2011

RULE 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.]

RULE 5.02: SERVICE — HOW MADE.

Whenever under these rules service is required or permitted to be made on 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 shall be made pursuant to the methods set forth in (1) or (2).

(1) 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.

(2) (a) Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney’s email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender’s name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: “If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document.” The certificate shall be sent to all counsel of record.

(b) An attorney who sends a document to another attorney electronically and who is notified that it was not received must promptly furnish a copy of the document to the attorney who did not receive it.

(c) A document transmitted electronically shall be treated as a document that was mailed for purposes of computation of time under Rule 6.

(d) For good cause shown, an attorney may obtain a court order prohibiting service of documents on that attorney by electronic mail and requiring that all documents be served under subsection (1). [As amended by order entered December 14, 2009, effective July 1, 2010.]

RULE 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.

RULE 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 ofTennesseeto 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 theTennesseecourts 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.

Advisory Commission Comments [2010]. 5.02: The Commission is aware that many attorneys serve documents on one another electronically but, because the current rule does not provide electronic service is sufficient service, also send a paper copy of the document. This rule change is designed to allow attorneys to accomplish service of pleadings and other papers electronically without the need to send a physical copy.

The requirement that the sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule is intended to reduce the possibility that the recipient might overlook the service of a document. Words in the subject line to the effect of “TRCP Rule 5 Service of Document in Smith v. Jones” are sufficient.

Adobe PDF was chosen as the format because it is required for federal court filings and virtually all attorneys have ready access to it. Of course, the parties may stipulate to the use of a different format.

The mailing or hand delivery of a certificate was included out of concern, well-founded or not, that an email transmitting a document could be lost in cyberspace. The certificate requirement puts the receiving attorney on notice that a document has been sent and, if the document was not received, will allow that attorney to initiate a process for promptly obtaining a copy of it.

The rule provides a mechanism for a court to order, for good cause shown, that electronic service of pleadings and papers not be permitted in a particular case.

RULE 5A. FACSIMILE FILING OF PAPERS

RULE 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.

RULE 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.

RULE 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.

RULE 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.]


RULE 5B. ELECTRONIC FILING, SIGNING, OR VERIFICATION

RULE 5B: ELECTRONIC FILING, SIGNING, OR VERIFICATION

Any court governed by these rules may, by local rule, allow papers to be filed, signed, or verified by electronic means that comply with technological standards promulgated by the Supreme Court. Pleadings and other papers filed electronically under such local rules shall be considered the same as written papers. [Amended by order filed December 14, 2009, effective July 1, 2010.]

Advisory Commission Comments [2010]. The courts in certain counties have expressed a desire to implement an electronic filing system. This rule permits trial courts, by local rule, to adopt such systems.

Electronic filing systems have also been implemented in all of the federal district courts (with the sole exception of the United States District Court for the Northern Mariana Islands) and in a number of states. Electronic filing offers numerous advantages over traditional “paper filing,” including vastly increased public access to court documents and reduction of the time and expense incurred by litigants and court personnel in filing, storing, and retrieving documents.

The Commission envisions that, in the not too distant future, all ofTennessee’s courts will adopt electronic case filing systems. In order to achieve statewide uniformity, the systems utilized throughout the state must comply with technological standards promulgated by the Supreme Court. Without such uniformity, the desired ease of access to data and cost efficiencies could not be achieved.

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