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?

Waiver of Process

June 6, 2018 § Leave a comment

MRCP 4(e) provides that a competent party defendant may waive process, meaning they don’t have to be served with a summons to enter an appearance. BUT there are some wrinkles of which you must be aware:

The waiver must be in writing, dated, and sworn or acknowledged, or the signature proven by two witnesses before a person authorized to administer oaths.

Comment: I have seen unsworn waivers, and undated ones. These are  ineffective. Make sure your forms conform to the rule. A verbal statement, even on the record, may not be enough to be an appearance; it certainly is not enough to constitute a waiver because it is not in writing. Counsel opposite’s statement that her client will waive process, and even the party’s own statement that he will, will not satisfy the rule.

A guardian or conservator may waive process on herself and the ward. Any trustee, executor, or administrator may likewise waive process in his fiduciary capacity.

Comment: Neither an unmarried minor nor a mentally incompetent person may waive process, but their guardian or conservator may. It used to be the rule that convicted felons could not execute a waiver, but that was deleted from the rule.

This is crucial: the waiver must be executed after the day on which the action was commenced and it must be filed among the papers of the case and noted on the general docket.

Comment: I still see waivers every now and then dated on or before the date the initial pleading was filed. That’s void, no matter what kind of case. Even when it’s going to be uncontested and agreed to by everyone, it’s no good. And make sure you file your waiver and have it docketed; it’s a worthless piece of paper until you do.

A few points:

  • Some people use joinders instead of waivers, because they think that the requirements for joinders are not so picky as for waivers. They may be right to some extent, and most judges accept joinders as an appearance. But remember that a joinder is in effect nothing more than an entry of appearance in the case, and R4(e) specifically says that, ” … entry of appearance must be executed after the day on which the action was commenced …” and must be filed just like a waiver, so there’s that.
  • It is not required that process actually be issued before a party may waive service. The waiver has the same effect as if the party were actually served with process.
  • Once a party has waived process, he need file no pleadings, and he is not required to appear.
  • Just because a party waives process does not mean that she may not file an answer. It happens in ID divorces all the time that a party waives process and then later files an objection to the divorce or some other contested pleading.

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