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?
I may be wrong but it is my understanding that by executing a joinder a person (party) is joining in the prayer for relief the same as if he/she had signed the original petition or complaint. An entry of appearance is an attorney putting the opposing party on notice that his/her client is represented and further notice can be made on the attorney. A waiver of process is an opposing party submitting to the jurisdiction of the court.
I hope not to hijack a very interesting thread, but this comes to mind when reading the initial post and responses. When does an attorney become attorney “of record” in a case? Obviously, when an entry of appearance is filed or response or other pleading is filed, but what about an attorney who was able to quickly settle the case, never had to file anything, but signed an agreed order to a settlement on behalf of the defense/respondent? If proceedings somehow go forward after that, is the attorney who signed such the attorney “of record?”
Sorry to run a rabbit trail, but I’ve not been able to find a clear answer…just like whether an initiative petition is the same as a complaint that necessitates service or waiver (or entry of appearance.)
While not related to the joinder issue, the COA has held that Rule4(e) does not apply to a waiver of service that is filed in conjunction with a voluntary surrender of parental right a TPR action. The Court held: “¶ 18. The rules of civil procedure clearly defer to Mississippi’s statutory provisions for matters concerning termination of parental rights and adoption. Therefore, we find that Simmons’s reliance on Rule 4(e) is misplaced. Section 93–15–103(2) governs this issue. The surrender and release form specified that signing the document would result in a waiver of service of process and further notice of any court proceedings regarding Justin. Thus, the language used by DHS in the surrender and release form conformed with the requirements of section 93–15–103(2).” Simmons v. Harrison County DHS, 228 So.3d 347, 351–52 (Miss.App. 2017).
Ed Patten’s comment reflects what Judge George Wm. Haynes explained when he taught Chancery Practice at Jaxn School of Law years ago. Haynes was an extremely intelligent and scholarly human being and a great chancellor. How can you enter an appearance or waive process in a case that isn’t yet in existence? It’s not that hard to have the person sign onto the initial pleading.
It seems to me that there are broad issues at stake. Initially the issue is the manner of conferring jurisdiction, which may happen without the filing of responsive pleadings. Pleadings define the parameters of the case. Rhetorically, Is the person subjected to the jurisdiction of the Court or has he joined in the prayer of the Complaint?? Does an appearance without a joinder waive personal privileges and defenses such as Statute of Limitations), which may/may not require special pleading per MRCP 8(c)?? How about implied waivers under MRCP 12(h) and compulsory counterclaims under MRCP 13? Form 1(E) illustrates the option of waiver, appearance, or joinder. Informal contacts may constitute an appearance, Holmes v Holmes, 628 So.2d 1361, 1364 and American States v. Rogillio, 10 So.3d 463, 467. Also, see Griffith’s on Chancery Practice, Sections 29-31, 249-255, and 587.
4(e) says entry of appearance shall be signed by the defendant, so a Joinder by a lawyer alone appears to be a different creature.
So if an Entry of Appearance is treated as a waiver, then when an attorney files an Entry of Appearance, has he waived service on his client? If so, would we then be free from filing the documents necessary when an attorney agrees to accept service. Routinely, an attorney will agree and then never sign the acknowledgement of service.
I personally think “entry of appearance” refers to the act of an attorney becoming “of record” in a case while a joinder applies to a party joining the actual pleading for relief and aligning with the plaintiff and is different from a waiver. The waiver is by someone who wants to submit to jurisdiction and may or may not participate in the proceedings. The day after commencement is a protection for that individual that different pleadings are not filed from what he/she thought they were waiving process to.