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.”