Tennessee Rules of Civil Procedure - § 4.01. Summons; Issuance; By Whom Served

§ 4.01. Summons; Issuance; By Whom Served

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 indorsed 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.

§ 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.

§ 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 thirty (30) days after its issuance, it shall be returned with the reasons for the failure to serve stated thereon. The plaintiff may obtain new summonses from time to time, as provided in Rule 3, after any prior summons has been returned unserved, or in the event that such prior summons has not been returned within thirty (30) days after its 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.

§ 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. 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.

§ 4.05. Service Upon Defendant Outside This 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) 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 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.

§ 4.06. Reserved.

§ 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.

§ 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.

§ 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, 1996; by order effective July 1, 1997; and by order effective July 1, 1998.

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.

Rule 4B. Service Upon Secretary of State as Agent for Service of Appeals

(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 issue hereunder 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.

Rule 45 Subpoena. § 45.01. For Attendance of Witnesses – Form – Issuance.

Every subpoena shall be issued by the clerk, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at the time and place and for the party therein specified. The clerk shall issue a subpoena or a subpoena for the production of documentary evidence, signed but otherwise in blank, to a party requesting it, who shall fill it in before service.

[As amended by order entered January 26, 1999, effective July 1, 1999; amended effective July 1, 2000.]

§ 45.02. For Production of Documentary Evidence.

A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

§ 45.03. Service.

A subpoena may be served by any person authorized to serve process, or the witness may acknowledge service in writing on the subpoena. Service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed.

§ 45.04. Subpoena for Taking Depositions – Place of Deposition.

(1) A subpoena for taking depositions may be issued by the clerk of the court in which the action is pending. If the subpoena commands the person to whom it is directed to produce designated books, papers, documents, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26.02, the subpoena will be subject to the provisions of Rules 30.02, 37.02 and 45.02.

(2) A resident of the state may be required to give a deposition only in the county wherein the person resides or is employed or transacts his or her business in person, or at such other convenient place as is fixed by an order of the court.

[As amended by order entered January 26, 1999, effective July 1, 1999.]

§ 45.05. Subpoena for a Hearing or Trial – Personal Attendance.

(1) At the request of any party, subpoenas for attendance at a hearing or trial shall be issued by the clerk of the court in which the action is pending, and such a subpoena may be served at any place within the state.

(2) Upon the affidavit of a party or the party’s attorney that the testimony of a witness is important, and that the just and proper effect of the testimony cannot in a reasonable degree be obtained without an oral examination in court, the court may, in its discretion, order the personal attendance of the witness, although such witness may otherwise be exempt from personal attendance.

[As amended by order entered January 23, 1986, effective August 1, 1986; and amended by order filed February 1, 1995, effective July 1, 1995.]

§ 45.06. Contempt.

Disobedience or a refusal to be sworn or to answer as a witness may be punished as a contempt of the court in which the action is pending.

§ 45.07. Requirement of Trial, Hearing or Deposition.

Every subpoena issued and served under any part of this Rule 45 for testimony, books, papers, documents, or tangible things must command the witness to appear at a trial, hearing, or deposition unless otherwise provided by statute or by agreement of all parties.
[As enacted by order entered January 29, 1987, effective August 1, 1987.]

TENNESSEE CODE ANNOTATED

20-2-103. Date of process shown – Penalty for violation.

(a) The clerk, general sessions judge or attorney issuing any process shall mark thereon the day on which the process is issued; and the sheriff or other officer into whose hands the process shall come to be executed, shall, in like manner, mark thereon the day on which the sheriff or other officer received it.

(b) The penalty for neglect of this requirement shall be a forfeiture of one hundred twenty-five dollars ($125), to be recovered in any court having cognizance thereof, by any persons who shall sue for the penalty, with costs.

[Code 1858, § 2819 (deriv. Acts 1794, ch. 1, § 9); Shan., § 4524; Code 1932, § 8651; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-206.]

20-2-104. Issuance of process on Sunday.

(a) Civil process may be issued on Sundays on the application of any party, supported by oath or affirmation, that the defendant is removing or about to remove the defendant’s person or property beyond the jurisdiction of the court applied to.

(b) The clerk or general sessions judge shall endorse on the back of such process that it was obtained on the oath of the plaintiff, the plaintiff’s agent or attorney, as directed in subsection (a).

(c) It is the duty of the proper officers to execute all such process on Sundays, subject to the same penalties and regulations as in other cases.

[Code 1858, §§ 2824-2826 (deriv. Acts 1821, ch. 1, §§ 1-3); Shan., §§ 4529-4531; Code 1932, §§ 8656-8658; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-207.]

20-2-105. Service of process on Sunday on parties leaving jurisdiction. – Sheriffs or constables having process in their hands in civil actions pending in magistrate’s court or courts of record, if it appears to their satisfaction that parties to be sued are leaving the county or state, have the right to execute the process on Sunday.

[Acts 1885, ch. 53, § 1; Shan., § 4532; Code 1932, § 8659; T.C.A. (orig. ed.), § 20-208.]

20-2-106. Process on Sunday generally prohibited. – With the exceptions contained in §§ 20-2-104 and 20-2-105, civil process shall not be executed on Sunday.

[Code 1858, § 2827 (deriv. Acts 1777 (Nov.), ch. 8, § 6); Acts 1885, ch. 53, § 1; Shan., § 4533; Code 1932, § 8660; T.C.A. (orig. ed.), § 20-209.]

20-2-107. Process to other counties. – Process in local actions may run to any county.

[Code 1858, § 2820; Shan., § 4525; Code 1932, § 8652; T.C.A. (orig. ed.), § 20-210.]

20-2-108. Counterpart summons.

(a) Where there are two (2) or more defendants in any suit in courts of law or equity or before judges of the courts of general sessions, the plaintiff may cause counterpart summons or subpoena to be issued to any county where any of the defendants is most likely to be found, the fact that the counterpart process is issued in the same suit being noted on each process which, when returned, shall be docketed as if only one (1) process had issued.

(b) If the defendants are not served, the same proceedings shall be had as in cases of other similar process not executed.

(c) Such counterpart, when issued from a judge of the court of general sessions, shall be returned within thirty (30) days.

[Code 1858, §§ 2821, 2822 (deriv. Acts 1820, ch. 25, § 3); Shan., §§ 4526, 4527; Code 1932, §§ 8653, 8654; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-211.]

Resources

Rules of Civil Procedure for the state of Tennessee.