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JOHN D. LEE II, and for all
Comes defendant John Lee, pro se and in forma pauperis, in a special appearance, pursuant to Rule 12.02 of the Tennessee Rules of Civil Procedure, and moves this Court to dismiss the complaint against it for lack of jurisdiction over the defendant on grounds that the complaint and summons were never served upon the defendant, as more fully appears from the affidavit filed herewith as Exhibit A. As grounds for this motion, defendant John Lee would show the Court that: 1. A civil action has not commenced against the defendant, pursuant to Rule 4.01 of the Tennessee Rules of Civil Procedure, which states: (1) Upon the filing of the complaint the clerk of the court wherein the complaint is filed shall forthwith issue the required summons and cause it, with the necessary copies of the complaint and summons, to be delivered for service to any person authorized to serve process. This person shall serve the summons, and his return endorsed thereon shall be proof of the time and manner of service. 2. Rule 4.02 of the Tennessee Rules of Civil Procedure states: (1) The summons shall be directed to the defendant, shall state the time within which these rules require him to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint. 3. Rule 4.03 of the Tennessee Rules of Civil Procedure states: (1) The person serving the summons shall promptly and within the time during which the person served must respond, make proof thereof to the court and shall identify the person served and shall describe the manner of service. 4. Rule 4.04 of the Tennessee Rules of Civil Procedure states: Service shall be made as follows: (1) Upon an individual other than an unmarried infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally, or if he evades or attempts to evade service, by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service. (12) Service by mail of a summons and complaint upon a defendant may be made by the plaintiff, his attorney or by any person authorized by statute. After the complaint is filed, the clerk shall, upon request,, furnish the original summons, a certified copy thereof and a copy of the filed complaint to the plaintiff, his attorney or other authorized person for service by mail. Such person shall send, postage prepaid, a certified copy of the summons and a copy of the complaint by registered return receipt mail to the defendant…. Service by mail shall not be the basis for judgment by default unless the record contains a return receipt showing personal acceptance by the defendant. 5. Rule 1 of the Tennessee Rules of Civil Procedure states: The Rules are not applicable to general sessions courts in the exercise of jurisdiction conferred by general statutes. 6. Rule 1 Annotations states: While these Rules are applicable after a case is appealed from general sessions court to circuit court, they do not require the filing of additional pleas other than that which have been filed before appeal unless the trial court so orders, pursuant to local court rule or other authority. Vinson v. Mills, Tenn. 530 S. W. 2d 761 (1975). The meaning of a general appearance is not defined by the Tennessee Rules of Civil Procedure; all appearances are deemed to be general absent something to indicate the contrary. Dixie Savings Stores, Inc. v.Turner, Tenn. App., 767 S. W. 2d 408 (1988). 7. Rule 3 of Tennessee Rules of Civil Procedure states: If process remains unissued for 30 days or if process is not served or returned within 30 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of the statute of limitations. 8. Plaintiff did not comply with these Rules requiring personal service
or by registered mail, therefore this court lacks jurisdiction over the
defendant.
All allegations of the Complaint not admitted or denied above are hereby denied. This document is not a waiver of necessity of service of process. As further support of this motion, the affidavit of John Lee is attached hereto. Respectfully submitted, ____________________ John D. Lee II, pro se and in forma pauperis
EXHIBIT A
STATE OF TENNESSEE COUNTY OF KNOX Comes the affiant, after being duly sworn, and does depose and
say the following: I, John Davis Lee II, am over 18 years of age and make
this affidavit in support of the Motion for Extension of Time in the above
listed case based upon my own personal knowledge.
Further affiant sayeth not. __________________________
STATE OF TENNESSEE COUNTY OF KNOX Sworn to and subscribed before me on this ________ day of May, 2001. ___________________________
My commission expires: -----------____________________
The undersigned hereby certifies that a true and exact copy of this pleading has been served upon counsel for all parties at interest in this case by delivering a true and exact copy of said pleading to the offices of said counsel, or by placing a true and exact copy of said pleading in the United States Mail, addressed to said counsel at his office, with sufficient postage thereon to carry it to its destination. City of Knoxville Municipal Corporation
Richard Graham
This ______ day of May, 2001. _________________________
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