United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER TO SHOW CAUSE
ALISTAIR E. NEWBERN UNITED STATES MAGISTRATE JUDGE.
record in this action suggests that pro se Plaintiff Dee
Trisko has not yet served Defendants Progressive Specialty
Insurance Agency, Inc. (Progressive), United Financial
Insurance Agency, Inc. (United Financial), and CT
Corporations Systems (CT Corporation) in accordance with
Federal Rule of Civil Procedure 4. (Doc. Nos. 2, 6.) On March
22, 2018, at Trisko's request, the Court issued a summons
to CT Corporation. (Doc. No. 2.) It does not appear that
Trisko requested a summons to Progressive or United
Financial, and the Court has not issued any summonses
addressed to them. (Id.) On April 3, 2018, Trisko
filed a U.S. Mail return receipt for a piece of mail
addressed to CT Corporation in Knoxville, Tennessee. (Doc.
No. 6.) An otherwise-unidentified person named Samantha
Sutton signed the receipt on March 26, 2018. (Id.)
Trisko also filed a blank proof-of-service affidavit.
Rule of Civil Procedure 4(c) requires that “[a] summons
must be served with a copy of the complaint . . . within the
time allowed by Rule 4(m)” by a “person who is at
least 18 years old and not a party” to the action.
Fed.R.Civ.P. 4(c)(1)-(2). “The plaintiff is responsible
for having the summons and complaint served . . . and must
furnish the necessary copies to the person who makes
service.” Fed.R.Civ.P. 4(c)(1). Rule 4(1) requires
that, “[u]nless service is waived, ” and
“[e]xcept for service by a United States marshal or
deputy marshal, proof must be by the server's
affidavit.” Fed.R.Civ.P. 4(1). Rule 4(m) provides that
a plaintiff has “90 days after the complaint is
filed” to effect service on all defendants.
Fed.R.Civ.P. 4(m). If a defendant is not served within that
timeframe, “the court-on motion or on its own after
notice to the plaintiff- must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time.” Fed.R.Civ.P. 4(m). The
Court must extend the time for service upon a showing of good
cause, and the Court may exercise its discretion to permit
late service even where a plaintiff has not shown good cause.
Id.; Fed.R.Civ.P. 4(m) advisory committee's note
to 1993 amendment; see also Henderson v. United
States, 517 U.S. 654, 662 (1996); DeVane v.
Hannah, No. 3:11-cv-00389, 2011 WL 5916433, at *2 (M.D.
Tenn. Nov. 28, 2011).
than a year has passed since Trisko filed this action, and
there is no indication that she has served either Progressive
or United Financial. Trisko also has not filed the required
server's affidavit to prove service on CT Corporation.
While “[f]ailure to prove service does not affect the
validity of service[, ]” it is not clear that Trisko
has actually served CT Corporation in compliance with
applicable rules. Fed.R.Civ.P. 4(1)(3).
4(h) provides two acceptable methods for serving corporate
defendants like CT Corporation. First, Rule 4(h) provides
that service on a domestic or foreign corporation in a United
States judicial district may be accomplished
by delivering a copy of the summons and of the complaint to
an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and-if the agent is one authorized by statute and the
statute so requires-by also mailing a copy of each to the
defendant . . . .
Fed. R. Civ. P. 4(h)(1)(B). Courts interpreting this rule
have held that “delivery means personal delivery, not
service by mail.” Cunningham v. Select Student Loan
Help, LLC, No. 3:15-cv-00554, 2016 WL 7368595, at *3
(M.D. Tenn. Dec. 20, 2016), report and recommendation
adopted by 2017 WL 10399393 (M.D. Tenn. May 25, 2017).
Here, there is no indication that Trisko caused a copy of the
summons and complaint to be personally delivered to an
authorized individual. Rule 4(h)(1)(B) is therefore not
satisfied. The second method of service under Rule 4(h)
allows for service of a corporation “in the manner
prescribed by Rule 4(e)(1) for serving an individual . . .
.” Fed.R.Civ.P. 4(h)(1)(A). That method of service
involves “following state law for serving a summons . .
. in the state where the district court is located or where
service is made . . . .” Fed.R.Civ.P. 4(e)(1).
Accordingly, in this action, Trisko may serve CT Corporation
in accordance with Tennessee law.
Tennessee Rules of Civil Procedure allow for service of a
corporation by mail in certain circumstances, but it is not
clear that those circumstances are satisfied here.
See Tenn. R. Civ. P. 4.04(10) (authorizing service
by mail under certain circumstances). For example, Tennessee
Rule of Civil Procedure 4.03(2) requires any party attempting
service by mail to file with the clerk “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 . . .
.” Tenn. R. Civ. P. 4.03(2). Trisko has not filed an
affidavit regarding service. Moreover, Tennessee Rule 4.03(2)
provides that service by mail is only complete “[i]f
the return receipt is signed by the defendant, or by a person
designated by Rule 4.04 or by statute . . . .”
Id.; see also Hall v. Haynes, 319 S.W.3d
564, 577 (Tenn. 2010) (discussing “Rule 4.03's
explicit restriction of who may sign the return
receipt”). There is no indication that Samantha Sutton
is designated to receive service of process for CT
Corporation under either Tennessee Rule 4.04 or by statute.
Trisko therefore has not shown that she served CT Corporation
in compliance with Tennessee law.
Trisko is ORDERED TO SHOW CAUSE by August 21, 2019, why her
claims against Progressive, United Financial, and CT
Corporation should not be dismissed for failure to effect
service under Rule 4(m). Trisko is warned that failure to
respond to this Order will likely ...