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Rule 5.02 – Service – How Made

May 14, 2021 | Civil Procedure, Tennessee

Service shall be made pursuant to one of the methods set forth in (1), (2), or (3). Whenever under these rules service is required or permitted to be made on a party represented by an attorney, the service shall be made on the attorney unless service on the party is ordered by the court. If an attorney has filed a notice of limited scope representation or a notice of limited appearance for an otherwise self-represented person, pursuant to Rule 11.01(b), service shall be made on the self-represented person and on the attorney until such time as a notice of completion of limited scope representation has been filed. After notice of completion of limited scope representation has been filed, service on the attorney previously providing limited scope representation shall no longer be necessary.

(1) Service on the attorney or on a party may be made by delivering to the attorney a copy of the document to be served, or by mailing it to such person’s last known address, or if no address is known, by leaving the copy with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at such person’s office with a clerk or other person in charge thereof; or, if there is none in charge, leaving it in a conspicuous place therein; or, 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 then residing therein. Service by mail is complete upon mailing. Documents which may be filed by facsimile transmission pursuant to Rule 5A may be served by facsimile transmission.
(2)

(a) Service on any attorney may also be made by emailing the attorney the document in Adobe PDF to the attorney’s email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender’s name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: “If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document.” The certificate shall be sent to all counsel of record.
(b) A sender who emails a document and is notified that it was not received must promptly furnish a copy of the document to the attorney who did not receive it.
(c) A document transmitted by email shall be treated as a document that was mailed for purposes of computation of time under Rule 6.
(d) For good cause shown, an attorney may obtain a court order prohibiting service of documents on that attorney by electronic mail and requiring that all documents be served under subsection (1) or (3).
(3)

(a) Service required by these rules also may be made on any registered user of a court’s Efiling system by filing any document that may be E-served with that court’s E-filing system. Eservice shall constitute effective service under these rules and no other service on such registered users is required, unless otherwise ordered by the court.
(b) Any attorney or any self-represented party who is not a registered user of an E-filing system, or known by the E-filer not to have been E-served, must be served by a means authorized in subsection (1) or (2) of this rule.
(c) Unless ordered otherwise by the court, a court or court clerk may, through such court’s Efiling system, transmit to registered users all notices, orders, opinions, or judgments filed by the court or court clerk, which transmission shall constitute proper service and shall satisfy the notice requirements of Tenn. R. Civ. P. 58 or any other applicable rules of procedure.
(d) Any court has the discretion, for good cause shown, to order that a means of service authorized in these rules other than E-service be required in a particular case.
(e) A document that is E-served shall be treated as a document that was mailed for purposes of computation of time under Rule 6.
(f) For purposes of E-service under Rule 5, the definitions in Rule 5B shall apply.

Tenn. R. Civ. P. 5.02

As amended by order entered January 31, 1984, effective August 20, 1984; by order entered December 10, 2003, effective July 1, 2004; and by order entered December 14, 2009, effective July 1, 2010; amended by order filed January 16, 2020, effective July 1, 2020.

Advisory Commission Comments [2010].

The Commission is aware that many attorneys serve documents on one another electronically but, because the current rule does not provide electronic service is sufficient service, also send a paper copy of the document. This rule change is designed to allow attorneys to accomplish service of pleadings and other papers electronically without the need to send a physical copy.

The requirement that the sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule is intended to reduce the possibility that the recipient might overlook the service of a document. Words in the subject line to the effect of “TRCP Rule 5 Service of Document in Smith v. Jones” are sufficient.

Adobe PDF was chosen as the format because it is required for federal court filings and virtually all attorneys have ready access to it. Of course, the parties may stipulate to the use of a different format.

The mailing or hand delivery of a certificate was included out of concern, well-founded or not, that an email transmitting a document could be lost in cyberspace. The certificate requirement puts the receiving attorney on notice that a document has been sent and, if the document was not received, will allow that attorney to initiate a process for promptly obtaining a copy of it.

The rule provides a mechanism for a court to order, for good cause shown, that electronic service of pleadings and papers not be permitted in a particular case.

Advisory Commission Comments [2012].

The first paragraph of Rule 5.02 is amended to address service of pleadings and other papers in cases in which an attorney has filed a notice of limited scope representation or a notice of limited appearance for an otherwise self-represented person, pursuant to Rule 11.01(b).

Advisory Commission Comment [2020]

Rule 5.02(3) has been added to provide for electronic service through a court’s E-Filing system, provided that such a system has been authorized bysuch court pursuant to Rule 5B of these rules. The amended rule authorizes E-service through a court’s electronic transmission facilities as to any registered user of such facilities. An attorney or party who chooses to become a registered user of a court’s E-filing system shall be required to accept service through the court’s electronic facilities unless otherwise ordered by the court in that particular case. As a result of this amendment, service may be effectuated under these rules by any of three means: the conventional means of service authorized in Rule 5.02(1), by electronic transmission or email as authorized in Rule 5.02(2), or by E-service pursuant to Rule 5.02(3) in those courts that have adopted an E-filing system that complies with Rule 5B and the technological standards promulgated by the Tennessee Supreme Court.