Day on Torts - New Post: Dismissal Rejected When Defendant Cannot Prove Intentional Delay in Service of Process

Where plaintiff did not serve defendants until 89 days after summonses were issued, but defendants failed to present evidence that the delay was intentional, the Court of Appeals reversed dismissal of the case.

In Eskridge v. NHC Healthcare Farragut, LLC, No. E2019-01671-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2020), plaintiff filed an HCLA claim against defendants on January 31, 2018. Summonses were issued the following day, and plaintiff’s attorney opted to serve the summonses by private process rather than through the sheriff’s department. On May 1, 2018, eighty-nine days after the summonses were issued, plaintiff’s attorney personally served them on defendants through their registered agent. Defendants filed an answer in June 2018, which included the affirmative defense that they had not been properly served. Plaintiff did not file the returns of summonses with the trial court until January 4, 2019.

Plaintiff filed a “Motion to Dismiss or Strike Insufficiency of Service of Process or Insufficiency of Process Defense,” arguing that service was proper because it was completed within 90 days, or that in the alternative, defendants had waived the service of process argument. Defendants filed a motion to dismiss based on the assertion that service was “not ‘contemporaneously with’ or ‘soon after’ the summonses were issued,” and that “nothing but the intentional decision not to serve the summonses and Complaint explains the delay in service of the Complaint.”

The trial court denied plaintiff’s motion, but it granted defendants’ motion to dismiss. On appeal, dismissal was reversed.

First, the Court of Appeals affirmed the holding that defendants had not waived their argument that service of process was not proper. “Tennessee Rule of Civil Procedure 8.03 provides that a party shall plead an affirmative defense by setting forth affirmative facts that are being relied upon in short and plain terms.” Defendants’ answer asserted that they were not served properly, and while defendants did not necessarily cite any facts in the answer, the Court noted that plaintiff did not file the returns of the summonses until seven months after defendants’ answer was filed. The Court stated that “defendants cannot be expected to include specific facts, such as service was completed on the first attempt, supporting their affirmative defense of insufficient service of process in their answer when those facts were not known to them.” (internal citation omitted). Because defendants filed a motion to dismiss just two weeks after the returns were filed and the motion set forth “additional facts supporting their affirmative defense,” the Court agreed with the trial court that defendants had not waived their argument that they were not properly served.

The Court next analyzed whether the trial court erred by dismissing the case, ultimately deciding that it did and reversing dismissal. Tennessee Rule of Civil Procedure 4.01(3) states that “[i]f a plaintiff…intentionally causes delay of prompt issuance or prompt service of a summons, the filing of the complaint…will not toll any applicable statutes of limitations or repose.” The 2016 advisory commission comment for this rule explains that it “means that the plaintiff or plaintiff’s counsel cannot intentionally delay the issuance or service of process for tactical purposes.”

In granting the motion to dismiss, the trial court listened to defendants’ arguments and took note of the fact that the registered agent’s office was very close to the courthouse where the summonses were issued as well as the fact that service by first class mail would have “take[n] significantly less time than 89 days.”  The Court of Appeals pointed out, though, that defendants “presented no other evidence that Plaintiff had intentionally delayed service of process,” and that “in order for the trial court to find that Plaintiff had intentionally delayed service of process, the trial court had to and did make certain inferences in favor of Defendants.” While the trial court noted in its order that plaintiff had not filed an affidavit in support of its position that service was proper, the Court of Appeals ruled that “Defendants filed the motion to dismiss and that the burden was on Defendants to prove that Plaintiff’s delay in completing service of process was intentional.” (internal citation omitted).

The Court of Appeals explained:

Defendants in the present case did not present an affidavit or other evidence sufficient to establish that Plaintiff or her attorneys had intentionally delayed service of process except for the returns of the original summonses that had been personally served on the eighty-ninth day following their issuance. The face of the summonses does not provide any evidence that the eighty-nine-day delay in service was intentional. …Plaintiff was not obligated to file an affidavit or present other proof that the eighty-nine-day delay was not intentional when Defendants had not shown an intentional delay in the first place to support its motion to dismiss. We have been shown nothing that makes the trial court’s inferences in favor of Defendants any more reasonable inferences that would have been in favor of the Plaintiff. Forcing Plaintiff to present evidence that a delay was not intentional without first requiring Defendants to present some actual proof and not just the trial court’s inferences and resulting conclusions in favor of the movants that it was intentional is essentially placing the burden for Defendants’ motion to dismiss on Plaintiff to establish a lack of intent, which is contrary to prior case law.

Accordingly, the dismissal of the case was reversed.

Notably, the Court stated that because it was reversing dismissal, it was not considering plaintiff’s argument that service within ninety days was “per se prompt service.”

This opinion is notable for two reasons. First, it reinforces the rule that for a defendant to argue improper service based on delay under Rule 4.01(3), the defendant must present some evidence that the delay was intentional. Second, it reinforces the long-standing rule that when a defendant files a motion to dismiss, the burden of proof is on the defendant.