Keeping Your Lawsuit Alive

As Shakespeare eloquently reminds us, our deaths are inevitable. But negligently letting a lawsuit die from failure to timely serve a defendant is evitable.

Let us begin with Tennessee Rule of Civil Procedure 3, controlling in Circuit and Chancery Courts. You have 90 days from issuance of the summons to serve the defendant. By the way, do not intentionally cause delay of prompt service. If you do, filing of the complaint is ineffective and statutes of limitation and repose continue running. Read Rule 4.01(3).

Sometimes the defendant cannot be located and served within three months. Back up and try again. But make certain that you obey the mandate in the third sentence of Rule 3. You must obtain issuance of a new summons "within one year from issuance of the previous process." If you do not, the action has not been commenced and, again, statutes of limitation and repose continue running.

For the plaintiff client's sake, don't wait a full year. Be diligent (Ethics Rule 1.3) and get another summons issued immediately upon return of the unserved process.

Now let us move to the Courts of General Sessions. Tenn. Code. Ann.  §16-15-902(b) allows 60 days (not 90 days) to serve a civil warrant. If returned unserved, Tenn. Code. Ann.  §16-15-710 requires that you obtain another warrant within "nine months" (not one year) from the date the previous warrant was "returned" (not issued). Consequently, practice in the inferior court differs in three respects from that followed in the superior courts.

Civil procedure is always important and sometimes tricky. If we keep the foregoing paragraphs in mind, perhaps we will not be fools on "the way to dusty death" (Macbeth V, v).