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Service of Process After Hall v. Haynes
Practice Tips for Counsel and Advice for Management
For most practitioners, interest in service of process issues pales in comparison to more hot topics, such as tort or health care reform. However, the Tennessee Supreme Court recently highlighted some important issues surrounding service of process under Rule 4 of the Tennessee Rules of Civil Procedure dismissing a medical malpractice case because the plaintiffs did not serve the defendants properly.
This article will begin with an in-depth discussion of Hall v. Haynes and then delve into various practice tips that will hopefully allow practitioners to avoid similar outcomes. Lastly, this article will discuss how organizations can take steps to ensure that their employees understand the importance of accepting documents from process servers and mail carriers.
Discussion of Hall v. Haynes
On Aug. 5, 2005, Billy R. Hall and Billie Gail Hall (the Halls) filed a medical malpractice claim against Douglas B. Haynes M.D., Mr. Hall’s primary care physician, and Dr. Haynes’ practice group, MedSouth Healthcare PC (MedSouth), alleging that the physician was negligent in failing to diagnose Mr. Hall’s colon cancer. On the same day, the Circuit Court Clerk issued two summonses: one directed to the physician and the second to the registered agent for his practice group. Four days later the constable responsible for serving process went to the practice group, which is also the physician’s place of employment, to serve the summonses and complaints. He delivered the documents addressed to the physician to Brenda Enochs, a customer service representative of the practice group, and then handed the practice group’s set to Michelle Pruitt, a second customer service representative. Both employees worked at the front reception desk of the practice group.
Enochs’ job responsibilities included assisting patients and signing for medical record subpoenas, among other duties. Moreover, she would not have signed for the documents had the constable explained that he was serving a lawsuit. After discovering that the documents were a complaint and summons, Enochs gave the documents to her supervisor. Pruitt had similar duties and likewise had she known that the constable was serving a lawsuit she would not have accepted but would have called someone else because she “’would not have known [what to do] about a lawsuit.’” Neither employee knew the consequence of signing for service nor what she was actually signing for.
Subsequently, on Aug. 25, 2005, the Halls filed an amended complaint. Their attorney attempted to serve new summonses and the amended complaint on the defendants via certified mail, return receipt requested. The process documents were addressed to the physician at the practice group and the practice group’s registered agent. Debbie Funderburk, an accounts payable clerk, received the documents and signed the return receipt for both defendants. Funderburk did not acknowledge on either receipt that she was accepting as the agent or the addressee. According to Dr. Haynes, Enochs, and Funderburk, neither Enochs nor Funderburk were employees of Dr. Haynes or authorized to accept service on his behalf. Likewise, numerous witnesses testified that neither Pruitt nor Funderburk was authorized to accept service of process on behalf of the practice group. None of the employees had any managerial duties and instead were primarily assigned clerical duties. The practice group’s office administrator was aware that front line personnel had accepted prior lawsuits. The officer administrator also could not identify the employees working at the front desk.
Even though the defendants were not served personally or through their agent, there was no doubt that Dr. Haynes and MedSouth were aware of the filing. The defendants answered timely and asserted as an affirmative defense the following:
Defendants plead the defense of improper service and insufficiency of process. They were not served as required by [Tennessee Rule of Civil Procedure] 4. The Summons, Complaint, and First Amended Complaint were not delivered personally to Dr. Haynes or the authorized agent for service of process for MedSouth Healthcare PC. Consequently, service is not effective.
Plaintiffs did not seek new service after the defendants raised this affirmative defense.
Even though the defendants could have filed a motion to dismiss immediately, they chose instead to proceed with discovery and wait. Approximately 18 months later, the defendants filed a motion for summary judgment, arguing that the lawsuit should be dismissed because the Halls had failed to perfect service of process timely on the defendants in accordance with Rule 4.04(1) and (4). The trial court denied the defendants’ summary judgment motion after concluding that the two customer service representatives “’were authorized to receive service of process on the defendants[’] behalf.’” With respect to the service of the amended complaint via certified mail, the trial court found that “Ms. Funderburk or anyone who might be handy at the time were authorized to sign for and receive defendants’ certified mail.” In denying the personal service portion of the summary judgment motion, the trial court, relying on Garland v. Seaboard Coastlines Railroad Company, characterized the defendants’ arguments as “narrow and technical definitions” that were “inconsistent with the apparent purpose of [Tennessee Rule of Civil Procedure] 4.04, to insure that process is served in a manner reasonably calculated to give a party defendant adequate notice of the pending judicial proceedings[.]” As for the issue regarding service by certified mail, the trial court relied upon the reasoning in Boles v. Tennessee Farmers Mutual Insurance Company, where the Tennessee Court of Appeals held that a secretary who was authorized to accept certified mail was permitted to accept service of process mailed to a defendant.
The defendants sought and were granted interlocutory appeal. The Court of Appeals reversed the trial court’s denial and overturned Boles in part. In particular, the intermediate appellate court concluded that the customer service representatives and the accounts payable clerk lacked express and implied authority to accept service on behalf of the defendants and that Boles was erroneous “to the extent that [it] may be read as holding that the ability to sign for certified mail, in and of itself, equates to authority to receive service of process.” Following the intermediate appellate court’s reversal, the Halls petitioned the Tennessee Supreme Court for review, which affirmed with instructions to enter summary judgment in favor of the defendants.
The court provides a thorough yet succinct road map for how practitioners should approach service of process issues. First, the court addressed how the Halls had failed to comply with Rule 4.04(1) when attempting to serve Dr. Haynes. Rule 4.04(1) governs service of process on individuals and requires, in pertinent part, that leading process be served on the individual personally or by “delivering it to an agent authorized by appointment or law to receive service on behalf of the individual served.” The court reiterated that personal service upon an individual defendant is the preferred method of service of process. After recognizing that the constable did not serve Haynes personally but rather served Enochs, the court stated that “whether this constituted service of process upon Dr. Haynes hinges upon whether Enochs was ‘an agent authorized by appointment or by law to receive service on behalf of’ Dr. Haynes.”
The court began by noting that “[i]n the workplace context, service is not effective when another whom the individual defendant has not appointed as an agent for service of process nonetheless accepts process on the defendant’s behalf.” The court then delved into the question of whether Enochs had actual authority or implied authority from Haynes to serve as his agent for service of process. As evidenced by the affidavit provided by Haynes and the testimony from Enochs, Haynes had clearly not actually appointed Enochs as his agent for service of process. Consequently, the issue turned on whether the actions of Haynes gave Enochs implied authority to accept service. The Halls argued that the procedures in place at the front desk, i.e., allowing Enochs to receive legal papers and then placing those papers in the addressee’s mailbox satisfied the requirements of Rule 4.04(1). In addition, they averred that the fact that Haynes had actually received notice of the lawsuit under these procedures was proof that service was proper.
After referring to cases from federal and state jurisdictions, the court rejected the Halls’ arguments and found that Enochs lacked implied authority to accept the summons and complaint on Haynes’ behalf. The court reasoned that “[a]lthough Enochs signed for subpoenas for medical records requests as part of her job duties, the law is clear that acting as an agent for some other purpose does not automatically make her Dr. Haynes’s agent for accepting service of process.” “Furthermore, the mere fact that Enochs accepted service of this lawsuit does not, in and of itself, bind Dr. Haynes to the court’s jurisdiction.” The fact that Enochs did not know the true importance of these documents combined with her admission that she was merely complying with the constable’s request appear to have guided the court’s reasoning. Consequently, the court had little difficulty affirming the judgment of Court of Appeals and holding that the constable’s service of process on Enochs did not satisfy the strict requirements of Rule 4.04(1).
Next, the court addressed whether the constable’s service of the summons and complaint on the practice group via Pruitt was proper. Rule 4.04(4) prescribes the method for serving corporations in Tennessee. The court focused on whether Pruitt was an “agent authorized by appointment or law to receive service on behalf of” the corporate defendant, MedSouth.42 Specifically, the court looked to whether MedSouth’s registered agent had appointed Pruitt as a subagent as recognized by the Court of Appeals in Rubio v. Precision Aerodynamics, Inc. In Rubio, the intermediate appellate court held that the secretary of a corporate defendant’s registered agent had been appointed to accept service of process as a subagent. There, the secretary had represented to the process server that she was authorized to accept service of process, that she had accepted many times in the past, and that she would deliver the service papers to the registered agent. In addition to relying on Rubio, the court looked to the standard laid down in Garland that service of process on an “organizational defendant may be made upon a representative so integrated with the organization that [s]he will know what to do with the papers.” The court continued “[g]enerally, service is sufficient when made upon an individual who stands in such a position as to render it fair, reasonable, and just to imply the authority on h[er] part to receive service.”
The Halls argued that Pruitt was impliedly authorized to accept process because her job duties included handling “important papers.” The court, however, disagreed and noted that Pruitt did not know what she was signing for, was not the authorized registered agent, acted in a primarily secretarial, rather than a managerial role, and, unlike the secretary in Rubio, did not represent to the process server that she had accepted service before or would ensure it reached the registered agent. Based on all of these factors, the court concluded that Pruitt’s “job responsibilities make clear that she did not ‘st[an]d in such a position as to render it fair, reasonable, and just to imply the authority on h[er] part to receive service of process on MedSouth’s behalf.” Nor did the court find any support in the record that MedSouth’s registered agent had impliedly authorized Pruitt to serve as the subagent for service of process purposes. Ultimately, the court held that the Halls failed to serve MedSouth properly and affirmed the judgment of the Court of Appeals.
The court was also faced with a challenge to the Halls’ attempted service of process of the summonses and amended complaints via Rule 4.04(10) on Dr. Haynes and MedSouth. Even though personal service is the preferred method, Rule 4.04(10) provides that service may be effectuated by mail if certain conditions are met. In examining this issue, the court stated that “when the person to be served is an individual, the rule seems to require that the return receipt be signed by the defendant and no one else.” Here, the Halls mailed the amended documents to Dr. Haynes at the practice group’s address and it was signed for by Funderburk. The dispositive question, therefore, was whether Funderburk was an agent authorized to accept service for Dr. Haynes. The record established that Dr. Haynes never explicitly authorized her to accept service via mail on his behalf and Funderburk did not check the “Agent” box on the return receipt when she accepted the amended documents. Moreover, Funderburk was one of four employees who routinely signed for certified mail. The Halls countered that Funderburk was allowed to accept certified mail for Dr. Haynes and MedSouth and that under Boles this was sufficient to establish her as Dr. Haynes’s agent for process of service purposes.
The court rejected the Halls’ contention and reasoned that the authority to accept certified mail “does not ipso facto establish that Funderburk was an agent authorized by appointment to receive service of process for Dr. Haynes[.]” When examining Boles, the court agreed with the Court of Appeals statement that “Rule 4.04(10) is intended to provide plaintiffs with an alternative means of effectuating service, … [it] is not intended to expand the class of persons who are authorized to accept service of process under Rule 4.01(1) and 4.04(4).” In the end, the court concluded that the mere fact that a person has the authority to sign for certified mail does not, without more, mean that he or she becomes an agent by appointment to receive service of process on behalf of an individual defendant. As a result, the Halls did not serve Dr. Haynes in accordance with Rule 4.04(10) and the dismissal against the physician was affirmed.
The court next tackled whether the Halls effectively served MedSouth with the amended pleadings. The reasons supporting the dismissal of Dr. Haynes also led to a dismissal in favor of MedSouth. The court agreed with the reasoning of the intermediate appellate court and found “[r]ather than fulfilling managerial duties or otherwise holding a position of authority, Funderburk was a payroll clerk who happened to be one of several people in the administrative office whom the mail carrier might ask to sign for certified mail.” And, as with Pruitt, there was no evidence that MedSouth’s registered agent had appointed Funderburk as a subagent. As a result, the court ultimately held that “a corporate agent with the authority to sign for and receive the corporation’s certified mail does not, without more, qualify as an agent authorized by appointment to receive service of process on behalf of a corporate defendant.”
Even though the court held that the Halls had waived this issue on appeal, it addressed, in dicta, their argument that the defendants had waived the insufficiency of process defense by participating in the litigation between the filing of the answer and the motion for summary judgment.[63, 64] The court expressly stated that the defendants’ affirmative defense was sufficient to satisfy the requirements of Rule 8.03 and that they did not waive the defense by participating in discovery. After considering the responsibilities of the practice group’s employees, the manner in which the constable and mail service delivered the pleadings, and the controlling law, the court affirmed the dismissal of the Halls’ lawsuit against Dr. Haynes and MedSouth, stating: “Because we hold that plaintiff never effectively served defendants with process and that defendants have not waived this defense, the one-year statute of limitations for malpractice actions has run.”
Practice Tips for Counsel on Both Sides of the Aisle
The unanimous Hall opinion did more to clarify the rules of serving leading process than create new law. The court delineated who can receive service of process and under what circumstances a process server may deliver the pleadings to persons other than the individual or registered agent in a workplace setting. The court did not, however, specify which factors courts should consider when a person — who is not the defendant, registered agent, subagent, or someone acting with express authority — can accept service of process properly under Rule 4. The following factors did play a role though in the analysis: (1) the employees did not possess actual authority to accept service; (2) they did not lead the constable or mail carrier to believe that they were authorized to accept service; (3) they did not know the contents of the documents they accepted; (4) they did not possess any managerial duties; (5) there was nothing to set these employees apart from their co-workers, which would empower them to accept service; and (6) the registered agent could not identify the customer service representatives working at the front desk. Because the court did not limit the analysis to any particular set of facts, the possibility remains that other factors may be important. Regardless, however, of what factors the courts may consider, the one clear aspect of this case is that merely being authorized to accept certified mail or other legal documents, e.g., subpoenas for records, is no longer sufficient to render a person an agent for service of process purposes.
Both appellate courts reiterated that service of process is a vital task that must be performed with strict adherence to the Rules. It cannot be taken lightly, especially when it is clearly raised as an affirmative defense. Aside from the affirmative defense, there were other indications that should have warned the Halls something was amiss with their service. For example, when the Halls sued Dr. Haynes individually they should have ascertained whether Enochs was his agent for service of process when the return bore her signature. Similarly, the fact that Funderburk did not identify herself as the agent on the return receipt should have indicated that Dr. Haynes and MedSouth may not have been served properly.
Since the consequences can be severe, practitioners should establish safeguards against improper service. For example, the summons and endorsements on the mailed envelopes should expressly state that the enclosed documents should only be served on the person named. This step will not completely overcome the reality that plaintiff’s counsel often cannot control how the process server performs his duties, but it may bring service issues to counsel’s attention sooner. If the defense is raised, plaintiff’s counsel can file a motion to strike, forcing the other side to show its hand. Another formal course to take is to raise the issue in discovery through interrogatories or depositions. If counsel selects this route, however, he or she should be mindful of the applicable statute of limitation and not let time run out. Thoroughly exploring the issue will allow for plaintiff’s counsel to adequately evaluate the defense. A less formal avenue is to merely contact opposing counsel and ask for the basis for the defense. If plaintiff’s counsel believes the defense valid, he or she can always ask opposing counsel to accept on behalf of the client or arrange for service. The Halls did explore this issue in discovery; however, the evidence produced benefited the defendants more than the Halls and gave the appellate courts the support to reverse the trial court. After Hall, if there is any doubt that service may be improper, prudence suggests seeking new service of process. For defense counsel, the key is to raise the defense with enough specificity to satisfy Rule 8.03. Considering the language cited by the court, it does not have to be overly specific.
Effect on Organizations
Organizations need to be aware of the ramifications of allowing employees — especially frontline employees — to accept leading process. There are two schools of thought on how best to counsel organizations. On the one hand, counsel representing organizations can encourage clients to establish written protocols for how employees should respond when presented with documents from a process server. At a minimum, the employee should be aware of the significance of these documents and whether he or she is authorized to accept them. If the employee is not the registered agent, then he or she should contact a manager or the registered agent, if known. Further, if the registered agent is not available and the employee knows he or she is not authorized to accept service, then the process server should be asked to come back later or arrange a time for service to be perfected. Under no circumstances should the employee blindly accept the documents without first asking about their significance. An employee who is not armed with this knowledge may treat the documents as routine and as a result it may be several days or weeks before they reach the appropriate person and counsel. Similarly, if the organization wishes to empower an employee to serve as subagent, then it should provide a written document to that person expressly authorizing him or her to do so and under what circumstances he or she may act. Having these protocols in place will go a long way in protecting organizations’ interests and potentially laying the groundwork for a potent defense.
With respect to service of process by mail under Rule 4.04(10), organizations would also be well-served by establishing policies on who may accept certified mail. If a knowledgeable employee signs for the pleadings and recognizes them for what they are, then he or she can quickly notify management and it can raise the issue with counsel to ascertain whether the defense of insufficiency of service of process can be alleged. Another avenue is to restrict employees from signing for certified mail unless he or she is the addressee. While it may annoy the postal carrier, it will ensure that service is perfected on the proper person and does not become lost in the netherworld of interoffice mail.
On the other hand, one of the factors the court relied upon was the fact that none of the employees knew the importance of these documents or their contents. This would suggest that ignorance of the law may be the best route to follow. If there are protocols in place and the employee fails to follow them, the organization may be held accountable for not training the employee properly or ensuring compliance with the protocols. Under this approach, the organization may be better off simply doing nothing. Organizations should weigh the risks and benefits of these two very different approaches, and, regardless of which route management selects, it is an important discussion that should be had in the wake of Hall.
In the end, the court’s opinion in Hall v. Haynes addresses an important and often overlooked area of practice. The pitfalls for failing to investigate the insufficiency of process defense can have catastrophic effects on plaintiffs’ cases, and the court clearly paved the way for trial courts to dismiss them under the right circumstances. While service of process may not be exciting to most practitioners or clients, the Hall case demonstrates that it is not something to be taken lightly.
- Hall v. Haynes, 319 S.W.3d 564, 567 fn. 1 (Tenn. 2010).
- Id. at 567.
- Id. at 567-68.
- Id. at 569.
- Id. at 570.
- Hall v. Haynes, No. W2007-02611-COA-R9-CV, 2009 WL 782761, at *2 (Tenn. Ct. App. Mar. 26, 2009) aff’d by Hall v. Haynes, 319 S.W.3d 564 (Tenn. 2010).
- Hall, 2009 WL 782761, at *2.
- Id. at *2 quoting Garland v. Seaboard Coastline R.R. Co., 658 S.W.2d 528, 530 (Tenn. 1983).
- Boles v. Tenn. Farmers Mut. Ins. Co., No. M1999-00727-COA-R3-CV, 2000 WL 1030837 (Tenn. Ct. App. Jul. 27, 2000).
- Hall, 2009 WL 782761, at *13-15.
- Hall, 319 S.W.3d at 570 quoting Hall, 2009 WL 782761, at *13.
- Hall, 319 S.W.3d at 585.
- Tennessee Rule of Civil Procedure 4.04(1):
Upon an individual other than an unmarried infant or incompetent, 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 , 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.
- Hall, 319 S.W.3d at 572 citing Robert Banks & June Entman, Tennessee Civil Procedure § 2-3(d), at 2-26 (2d ed. 2004) (hereinafter “Banks & Entman”).
- Hall, 319 S.W.3d at 572 quoting Rule 4.04(1).
- Hall, 319 S.W.3d at 572.
- Id. at 573.
- Hall, 2009 WL 782761, at *3.
- Hall, 319 S.W.3d at 573 citing Arthur v. Litton Loan Servicing LP, 249 F. Supp. 2d 924, 929 (E.D. Tenn. 2002).
- Hall, 319 S.W.3d at 573 citing Arthur, 249 F. Supp. 2d at 929 and Richards v. N.Y. State Dep’t of Corr. Servs., 572 F. Supp. 1168, 1173 (S.D.N.Y. 1983).
- Hall, 319 S.W.3d at 573.
- Tennessee Rule of Civil Procedure 4.04(4) provides:
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. Ms. Pruitt was not the registered agent of the practice group and the Halls did not allege that Ms. Pruitt was its “officer or managing agent” or “chief agent.”
- 232 S.W.3d 738, 744 (Tenn. Ct. App. 2006).
- Id. at 743-44.
- Id. at 575-76.
- Id. at 576 quoting Garland, 658 S.W.2d at 531.
- Tennessee Rule of Civil Procedure 4.04(10) states:
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 [a subparagraph of Rule 4], the return receipt mail shall be addressed to an individual specified in the applicable subparagraph.
Additional requirements for service via mail are also found in Tennessee Rule of Civil Procedure 4.04, providing:
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.
- Hall, 319 S.W.3d at 577 quoting Banks & Entman, § 2-3(v), at 2-37.
- Id. at 578.
- Id. at 579.
- Id. citing Hall, 2009 WL 782761, at *13-14.
- Id. at 582.
- Id. at 583-84.
- Id. at 584.
- The Halls raised the issue of waiver by the Defendants for the first time on their appeal before the Supreme Court.
- Hall, 319 S.W.3d at 584 citing Toler v. City of Cookeville, 952 S.W.2d 831, 835 (Tenn. Ct. App. 1997) (holding that our Rules “directly contradict” the argument that defendant waives defense of insufficiency of process by “merely filing an answer”) and State ex rel. Barger v. City of Huntsville, 63 S.W.3d 397, 399 (Tenn. Ct. App. 2001) (after properly raising sufficiency of process by Rule 12.02 motion, “any other participation in the lawsuit by the defendant does not constitute a waiver.”).
- Hall, 319 S.W.3d at 585 citing Tenn. Code Ann. § 29-26-116 (Tenn. 2000).
- It is also significant to remember that the defendant can participate in all manner of discovery without waiving the defense, if raised properly in the answer. As Hall proves, even if he or she has fully participated in discovery, a knowledgeable defendant can wait until the applicable statute of limitations has run and then seek summary judgment so long as he or she has pled insufficiency of service of process as an affirmative defense. Under Hall, the trial court should grant the motion and dismiss the defendant. As mentioned before, the plaintiff’s best course of action when such a defense is raised is to seek out the basis for it early and proactively.
J. SCOTT GRISWOLD is an associate with Paine, Tarwater, and Bickers LLP in Knoxville. He received his law degree from the University of Tennessee College of Law in 2007. During law school, he served as chair of the Moot Court Board and as a member of the Trademark Moot Court Team. He was elected to the Order of the Barristers and received awards for academic excellence in Advanced Property and Trial Practice. After graduation he served as a law clerk to Chief Justice William M. Barker of the Tennessee Supreme Court, and joined the firm in September 2008. He received the 2010 Harris Gilbert Pro Bono Volunteer of the Year Award from the Tennessee Bar Association. The author would like to thank Joshua Walker and Ryan Connor for their comments and suggestions on this article.