Waiver or Joinder?
January 28, 2020 § 8 Comments
Funny what one can pick up just by reading the rules.
A lawyer filed a complaint on October 4. The complaint had been signed on September 30. The defendant signed a waiver on October 2. The lawyer tried to convince me that the waiver was good because it was signed after the date that the complaint was signed. Well, let’s look at the rule. MRCP 4(e) says:
“Any party defendant … may, without filing any pleading … waive the service of process or enter his or her appearance … with the same effect as if he or she had been served with process … However, such written waiver or entry of appearance must be executed after the day on which the action was commenced … .”
An action is commenced by filing a complaint, per R3(a). So that took care of that.
But in looking at R4, I was surprised to read that an entry of appearance is treated the same as a waiver. Somehow, I never noticed that.
Isn’t a joinder an entry of appearance? I think it is, by another name. In this district we have customarily treated a joinder as a creature different from a waiver. Lawyers have used joinders to avoid the requirement of having to have a waiver that is signed after the complaint is filed. That may not be the way the rule has been interpreted in your district, and, if so, good for you.
I haven’t found any case law on the issue. Is anyone aware of any?