Default Judgments and Service by Mail

Tennessee allows service of process by certified mail. This method may seem attractive, at first blush, due to its convenience and low cost. As a practical matter, however, a prescient defendant may well refuse to accept the mail in an attempt to thwart service, delaying the litigation. Also, a plaintiff who truly wishes to engage a defendant in a dispute may send a certified mail service only to get it returned as “undeliverable.” In such cases, will the plaintiff have anything to show for her attempts at service? As all good attorneys are trained to respond, it depends.

The Tennessee Rules of Civil Procedure (“TRCP”) contain special provisions for Tennessee residents and out-of-state residents. TRCP 4.04(10) covers Tennessee residents. It grants that service by “registered return receipt or certified return receipt mail” is valid service so long as plaintiff can provide a “return receipt showing personal acceptance by the defendant” or another person allowed by the rules. Such service will support a default judgment if the defendant does not then respond. However, without the return receipt, a default is not proper.

The rule for an out of state defendant is very different. Service by mail is, again, allowable. However, there is no requirement that the defendant actually sign the receipt. Under TRCP 4.05(5), the letter can be returned “unclaimed” or refused delivery and the service is still valid. The return must be filed in the clerk’s file and if so, it can be proper service for purposes of default.

In Hines v Tilimon, (Tenn. Ct. App. 2001), an out-of-state father was on the losing end of a default judgment granting custody of his children to the mother. Service of process upon the father was based on TRCP 4.05(5). On appeal, the father challenged the constitutionality of the service which argument was rejected on procedural grounds. (The father would have had to notify the attorney general while in the trial court so that the attorney general could defend the constitutionality of the Rule). Nonetheless, the Appeals Court found that the Rule not “so obviously unconstitutional on its face" as to warrant consideration of the constitutional issue. Thus, the father lost custody of his children based on not responding to his mail. It could have been different had he only been a Tennessee resident.