Oct 13, 2020 | Featured, News

Edd Peyton

Certified Mail Modifications and What Happens When…
By Edd Peyton

The U.S. Postal Service’s modification to its certified mail signature requirements will affect some types of service until the Postal Service reverts to pre-COVID procedures.

What happens when a plaintiff alleges that an individual defendant was served by certified mail and seeks a default judgment? It depends. Rule 4(e) of the Federal Rules of Procedure requires that an individual be served by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e).

To follow CDC guidance on social distancing to reduce opportunities for possible transmission of COVID-19, the Postal Service will not obtain the customer’s signature for certified mail upon delivery. The carrier will maintain a safe, appropriate distance, and request the customer’s first initial and last name. The carrier will then sign the green card or e-reader. According to the Postal Service, “It should be understood that our carriers are not signing for customers, but instead indicating that they have identified the customer to whom the item is being delivered.”

I have heard stories of certified mail signed by postal carriers being left inside of door frames, left in drop boxes, or delivered to individuals other than those identified on the return cards. Although a plaintiff can confirm that the mail reached the desired address, a plaintiff can’t be reasonably certain that the mail was delivered to the proper person or in a drop box waiting for an employee’s return to work.

Whether service by mail is permitted depends on your state’s procedural rules. In Tennessee where I practice, service by mail of a summons and complaint is authorized by Rule 4.04 of the Tennessee Rules of Civil Procedure. The return receipt shall be addressed to an individual.

Service by mail shall not be the basis for the entry of a judgment by default unless the record contains either (a) a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.04 or statute; or (b) a return receipt stating that the addressee or the addressee’s agent refused to accept delivery, which is deemed to be personal acceptance by the defendant pursuant to Rule 4.04(11).

A defendant has a legitimate argument that service is not perfected when the return is not signed by the individual defendant. Whether this argument will be effective will likely hinge on the language used by the carrier. A return of service I recently reviewed contained a plaintiff’s affidavit stating proof of service by Certified mail via USPS. The exhibits contained a green card signed “CP COVID 19 RR18” and dated, along with a USPS tracking transcript.

The agent and addressee boxes were not checked and no name was printed as “Received by (Printed Name)” on the card. The tracking transcript listed the date and time of delivery and stated the document was “Delivered, Left with Individual”. These facts prove only that the certified mail reached its destination. There is no proof that a specific defendant received or was notified of this suit. A defendant who timely learns of the suit could move to dismiss for ineffective service of process.

As mentioned above, Tennessee’s Rule 4.04 has another useful caveat. Should a Court determine that service by mail is effective, service by mail shall not be the basis for the entry of a default judgment unless the return receipt shows personal acceptance by the defendant or other designated by Rule 4.04 or statute; or if the return receipt showing that the addressee or the addressee’s agent refused to accept delivery. The defendant’s signature is required to grant a default judgment based on service by mail. The plaintiff cannot rely on the postal carrier’s signature because the carrier does not sign for the customer.

A word of caution to anyone who is concerned about contracting COVID by touching certified packages—a postal carrier is unlikely to explain why a package is refused. A plaintiff can request a default upon a defendant’s refusal of a package that happens to contain a summons and a complaint. A defendant is better off developing a cleanliness protocol for certified mail while COVID persists.
State courts are empowered to modify court procedures and have done so in response to the COVID pandemic. Tennessee’s modifications did not change the requirements for service by mail in response to COVID.

Please review your state’s procedural rules to determine whether different “signs” are required in response to COVID 19.

Edd Peyton focuses on Alternative Dispute Resolution, Employment Law, Insurance Defense Litigation, Products Liability, Professional Liability, and Property and Casualty in the Memphis office.