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Rule 4.05 – Service Upon Defendant Outside This State

May 14, 2021 | Civil Procedure, Tennessee

(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 a 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.
(6) Service by mail shall not be the basis for the entry of a judgment by default unless the record contains either: (a) a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.05 or statute; or (b) a return receipt stating that the addressee or the addressee’s agent refused to accept delivery, which is deemed to be personal acceptance by the defendant pursuant to Rule 4.05(5). If the defendant is a domestic corporation, a foreign corporation authorized to conduct business in this state, or any entity required to register with the Tennessee Secretary of State and appoint a registered agent, a refusal to accept delivery shall be the basis for a default judgment only where the motion for default is accompanied by evidence from the Tennessee Secretary of State showing that moving party made the certified mail service with the correct entity name and the correct name and address for the registered agent authorized by law to receive service of process.

Tenn. R. Civ. P. 4.05

Amended by order filed December 29, 2015, effective date July 1, 2016; amended by order filed January 8, 2019, effective October 1, 2019.

Advisory Commission Comment [2016].

4.05(5): Subdivision (5) is amended in two ways. First, the last sentence of subdivision (5) (“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”) is deleted, for the reason stated in the preceding Comment to Rule 4.04(11). Second, the following is added as the new last sentence of subdivision (5): “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.” That text is derived from Rule 4.04(10) – which applies to service by mail on defendants within the State – and adding it to subdivision (5) imposes the same requirement on service by mail on defendants outside this State.

NOTE: For the Advisory Commission Comments, please refer to Rule 4.09.

Advisory Commission Comment [2019]

4.04(10) and 4.05. Rules 4.04(10) and 4.05 are amended to clarify the circumstances under which the plaintiff may obtain a default judgment when the defendant was served by mail. Under amended Rule 4.04(10) and new Rule 4.05(6), service by mail can be the basis for entry of a default judgment if the record contains either: a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.04(10), Rule 4.05(5), or statute; or a return receipt stating that the addressee or the addressee’s agent refused to accept delivery, which is deemed to be personal acceptance by the defendant pursuant to Rule 4.04(11) or 4.05(5). Additionally, when the defendant against which a plaintiff seeks a default judgment after service by mail is a domestic corporation, a foreign corporation authorized to conduct business in this state, or any entity required to register with the Tennessee Secretary of State and appoint a registered agent, the motion for default must be accompanied by evidence from the Tennessee Secretary of State showing that the name of the corporation and the name and address of the registered agent for service of process was correct on the certified mail. Normally, the “Filing Information” record for the entity should be sufficient “evidence” under Tenn. R. Evid. 803(8), as that public record shows the correct entity name and the name and address of the registered agent for service of process upon the records of the Tennessee Secretary of State. Statutory provisions must be consulted to determine the proper agent for any entity registered with the Tennessee Secretary of State: for example, when a domestic corporation or foreign corporation fails to have a registered agent for service of process or the agent cannot be found “with reasonable diligence,” then the Tennessee Secretary of State is the agent for service of process for that corporation. Tenn. Code Ann. ,$48-15-104(b). As another example, when a foreign corporation is conducting business in this state without a certificate of authority, service of process is governed by statutory provisions such as Tenn. Code Ann. q20-2-214, -215 and Tenn. Code Ann. § 48-15-104. For certain regulated industries, service of process may be governed by other statutes: for example, the commissioner of the Department of Commerce and Insurance is the statutory agent for service of process for domestic and foreign insurers authorized to operate in the state of Tennessee. Tenn. Code Ann. §§ 56-2-103 and 56-2-504. Nothing in this amendment alters the validity of service upon statutory agents under existing law, but service by mail that is refused cannot be the basis for a default judgment unless the party moving for default demonstrates to the trial court that service was made using the correct entity name and a correct agent for service of process.

It should be noted that Rules 4.04(11) and 4.05(5) were amended in 2016 by deleting a former sentence in each rule which stated, in summary, that the United States Postal Service’s notation on a return receipt that a properly addressed registered or certified letter was “unclaimed,” or other similar notation, was sufficient evidence of the defendant’s refusal to accept delivery. Thus, the Postal Service’s notation that a registered or certified letter is “unclaimed” is no longer sufficient, by itself, to prove that service was “refused.”