I am involved in a little matter, with a big company. And I can’t believe the lengths that counsel on the other goes to, to make nonsense out of small matters, and basically do anything he can to delay. And delay. And delay.
When I graduated law school 18 years ago this spring, I quickly learned that the legal profession is a big mess. I am sure that not much has changed in the past 18 years, except now maybe more people know this fact than before. Of course, America has a lot of immigrants, new people and those who didn’t come of age until after 1993, so maybe enough people are still in the dark.
I will share this with you. It’s funny.
Under Federal Rules of Civil Procedure, you can ask the defendant to waive service of process. Let me back up a bit: Ordinarily, you are required to get good service on someone you are bringing to court. They have to be aware that someone is asking them to go before a judge and answer about some matter. It’s part of due process.
To make things easier, the federal court system allows there to be a waiver of service. This means, that the opposing party, if he or she (or big corporation, etc.), agrees to waive service of process, they can have extra time to answer the complaint, and they won’t be assessed any fees for having made the person suing go out and do regular service.
It’s really very convenient, because there is a lawsuit anyway. If the person accepts service, they get more time to prepare a defense.
The one caveat (caution), though, is that if you sit on the waiver of service request, the party suing you can turn around and do regular service anyway. If you don’t sign and return the waiver before they go for regular service, you lose the ability to waive, and you lose the extra time. It’s not a stalling tactic.
Now what one attorney in New York seems to have concluded is that it was meant as a stalling tactic. He has sat on my waiver of service request for 18 days now. Where a co-defendant has also sat on it for 18 days, he is arguing that it wouldn’t be fair if I moved for summary judgement, because the other party still should have time to decide if they want to waive service before I turn around and just serve them anyway.
(Summary judgment, by the way, is a thing where you go before the judge and say that the plaintiff and defendant do not have a disagreement about material facts, and the case can be decided by the judge simply as a matter of law. “Material facts” are those that are important to the case. People can make up a dispute about any old facts; we’re talking about material facts.)
So the attorney for Defendant A, who insists he does not represent Defendant B, is telling the judge that Defendant B deserves more time to decide on whether or not to waive service. Even though the waiver is a convenience and I am not obligated to wait 60 days and then serve. It’s that they have up to 60 days in the event I don’t serve.
It’s all very clear in the notes to Federal Rule of Civil Procedure Rule 12 (1993 amendment).
Service is timely waived if the waiver is returned within the time specified in the request (30 days after the request was mailed, or 60 days if mailed out of the country) and before being formally served with process. Sometimes a plaintiff may attempt to serve a defendant with process while also sending the defendant a request for waiver of service; if the defendant executes the waiver of service within the time specified and before being served with process, it should have the longer time to respond afforded by waiving service.
But I guess not everybody knows this.
Is this the same firm that was behind the jerking around of the EEOC for almost two years? I don’t know. You tell me.