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Rule 49 – Service and Filing of Pleadings and Other Papers

May 14, 2021 | Criminal Procedure, Tennessee

(a) When Required. A party shall serve on every other party:

(1) written motions, other than those heard ex parte;
(2) written notices;
(3) each order required to be served by the terms of the order;
(4) designations of record on appeal; and
(5) similar papers.
(b) Service; How Made.

(1)Upon Attorney. When the law, these rules, or a court order requires or permits service to be made on a party represented by an attorney, the service shall be made on the attorney unless service on the party in person is required by law or is ordered by the court.
(2)Method of Service. Service of a copy of a document on an attorney or party shall be made by one of the following methods:

(A) Delivery in Person. Delivery in person.
(B) Mail to Last Known Address. Mail to the recipient’s last known address. Service by mail is complete upon mailing.
(C) Leaving Copy with Court Clerk. If no address is known, service is accomplished by leaving the copy with the clerk of the court.
(3)Definition of Delivery. Delivery of a copy within this rule means:

(A) placing it in the hands of the attorney or the party;
(B) leaving it at that person’s office with a clerk or other person in charge thereof or, if there is no one in charge, leaving it in a conspicuous place therein; or
(C) 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 residing there.
(c) Filing Served Papers with Court. Papers required to be served shall be filed with the court as follows:

(1)With Court Clerk. 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. When papers are filed with the judge, he or she shall note on the papers the filing date and promptly transmit them to the clerk’s office.
(2)Duties of Clerk. The clerk shall endorse on every pleading and on all other papers filed with the clerk in a proceeding the date and hour of the filing.
(3)Recycled Paper. The use of recycled paper with the highest feasible percentage of postconsumer waste content is recommended for all papers filed with the court.
(d) Service by Pro Se Inmate.

(1)When Deemed Filed. If a paper required or permitted to be filed pursuant to the rules of criminal procedure is prepared by or on behalf of a pro se litigant incarcerated in a correctional facility and is not received by the court clerk until after the deadline for filing, the filing is timely if the paper was delivered to the appropriate individual at the correctional facility within the time set for filing. This provision also applies to service of papers by such litigants pursuant to the rules of criminal procedure.
(2)Definition of Correctional Facility. “Correctional facility” includes a prison, jail, county workhouse, or similar institution in which a pro se litigant is incarcerated.
(3)Burden of Proving Timely Filing. When timeliness of filing or service is an issue, the burden is on the pro se litigant to establish compliance with this provision.

Tenn. R. Crim. P. 49

As amended by order filed December 21, 2010, effective July 1, 2011.

Advisory Commission Comment.

This rule represents the commission’s judgment on how best to accomplish service and filing, given the practicalities of practice and the necessity for meaningful compliance.

It is the public policy of the State of Tennessee to 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) et seq.) and in the Solid Waste Management Act of 1991 ((title 68, ch. 211, part 8) et seq.). Rule 49(c)(3) supports the Court’s policy of recommending and encouraging that all papers filed in the Tennessee courts be submitted on recycled paper.

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. The pro se prisoner-filing provision in Rule 49(d) covers all papers required or permitted to be filed pursuant to the rules of criminal procedure. Should timeliness of filing become an issue, Rule 49(d)(3) places the burden on the incarcerated person to establish compliance with the deadline. The provision relative to filing with the appropriate correctional personnel is consistent with the United States Supreme Court’s ruling in Houston v. Lack, 487 U.S. 266 (1988).