Can a lawyer authorized by company to waive process say he cannot accept process?

[Paul84]

What is the name of your state (only U.S. law)? New York, but it is a federal case (U.S. District Court)

Is it possible for a lawyer, who has represented a corporation in other cases and who says he is authorized by that company to waive service of process, later claim that he is not authorized to receive process for that corporate client after a process server has duly handed a summons and complaint to him?

Also, if the professional server makes an error on the proof of service by putting the name of the lawyer's law firm rather than the corporate defendant's name, can the filing of an amended complaint by that server fix the issue?

 

[Mass_Shyster]

Is it possible for a lawyer, who has represented a corporation in other cases and who says he is authorized by that company to waive service of process, later claim that he is not authorized to receive process for that corporate client after a process server has duly handed a summons and complaint to him?

Absolutely. A notice of appearance is only valid for one case. The defendant's lawyer from another case is under no obligation to run errands for the plaintiff.

Serve the defendant.

 

[Paul84]

However, in this instance, I called and left a message with the corporate defendant asking who was authorized to receive process and if that person might waive process.

Soon after, I heard from this lawyer saying he would waive process, but a few days later, after checking the times to reply of waived versus received process, I decided to have process served instead. No one else ever contacted me from the company in reply to my question so I assumed it must be the same lawyer authorized to do both - waive or receive process.

 

[Mass_Shyster]

Check the Secretary of State website for the registered agent for the defendant. That is the proper person to sue.

http://www.dos.ny.gov/corps/bus_entity_search.html

No one else ever contacted me from the company in reply to my question

Seriously, you expect them to call you back to tell them how to sue them?

 

[Zigner]

Check the Secretary of State website for the registered agent for the defendant. That is the proper person to sue.

Did you misspeak? The registered agent would be the person to serve, the corporation would be the entity to sue.

 

[Paul84]

serving process via NY State Dep't of State

A fair point, Steve, but why then would they have their lawyer who handles these cases make an appearance to say he would waive process - seems to be intentionally misleading.

After receiving process from the server, the lawyer downloaded and sent to me his signed waiver form on behalf of the company. However, since I didn't follow exactly the FRCP 4 specifications re waiver of process (e.g. mailing him a copy with prepaid envelop), he might later claim the waiver to be invalid.

Thanks for the website. I looked up and found the relevant "registered agent". The listing above its name and address says "DOS Process (Address to which DOS will mail process if accepted on behalf of the entity)" So if I decide to have the copies of complaint and summons re-served, I need to have a process server hand deliver them to the Dept of State (DOS) in Albany, which then will mail them to the registered agent listed on its site? Any idea how much extra payment the DOS requires in addition to the process server's fees for handling this? Or could I just have a process server go directly to the registered agent in Manhattan, as listed by the DOS?

 

[Mass_Shyster]

Did you misspeak?

Certainly seems that way, doesn't it?

 

[Paul84]

ludicrous argument

What is the name of your state (only U.S. law)? New York, but it is a federal case (U.S. District Court)

Is it possible for a lawyer, who has represented a corporation in other cases and who says he is authorized by that company to waive service of process, later claim that he is not authorized to receive process for that corporate client after a process server has duly handed a summons and complaint to him?

Also, if the professional server makes an error on the proof of service by putting the name of the lawyer's law firm rather than the corporate defendant's name, can the filing of an amended complaint by that server fix the issue?

The more I think about it, the more this seems a ludicrous argument, contrary to common sense. In the SAME case, a lawyer makes an appearance to say via email that he represents the company and can waive process. Then, when process is served on the lawyer for this case, he claims he cannot accept it on behalf of the company, whom he has made an appearance for. The difference between waiver and service is one form - a waiver-of-service form. Otherwise, in both instances, the lawyer receives the summons and complaint: only difference is that in the waiver instance, the summons and complaint come directly from plaintiff's side; whereas, in the non-waiver, service instance the same exact documents come hand delivered by a non-party, ie a process server. Where's the logic in a counsel having authorization to do one but not the other FOR THE SAME CASE?

 

[tranquility]

What is truly ludicrous is that you are getting all agitated over your error. Serve properly. Problem solved. Wait until things really get going, you'll find that you can't trust what the other side says at all. If they say there is ice in the freezer, open the door.

 

[Paul84]

Tranquility,
How is it my error? When a lawyer has appeared to represent a client in a case, you're supposed to serve documents on the lawyer, not the defendant. That's my understanding.

 

[You Are Guilty]

Tranquility,
How is it my error? When a lawyer has appeared to represent a client in a case, you're supposed to serve documents on the lawyer, not the defendant. That's my understanding.

But you are serving (at least, attempting to) a new complaint, no?

Incidentally, I just responded to your other post, but you should probably keep all your questions together here, especially since I see there is a lot more going on than it appears.

 

[tranquility]

Tranquility,
How is it my error? When a lawyer has appeared to represent a client in a case, you're supposed to serve documents on the lawyer, not the defendant. That's my understanding.

Not for the complaint. After that, you can get by with fax (if agreed) or have someone mail it.

 

[Paul84]

From what I recall reading with regard to service after appearance by a lawyer for a party, there was no distinction made for a complaint versus other documents. Can you refer me to a relevant rule or ruling - e.g. in FRCP on this?

 

[tranquility]

From what I recall reading with regard to service after appearance by a lawyer for a party, there was no distinction made for a complaint versus other documents. Can you refer me to a relevant rule or ruling - e.g. in FRCP on this?

Um, rule 4? What are you talking about?

Rule edit:

Paragraph (3). This enumerates the officers and agents of a corporation or of a partnership or other unincorporated association upon whom service of process may be made, and permits service of process only upon the officers, managing or general agents, or agents authorized by appointment or by law, of the corporation, partnership or unincorporated association against which the action is brought. See Christian v. International Ass'n of Machinists, 7 F.(2d) 481 (D.C.Ky., 1925) and Singleton v. Order of Railway Conductors of America, 9 F.Supp. 417 (D.C.Ill., 1935). Compare Operative Plasterers’ and Cement Finishers’ International Ass'n of the United States and Canada v. Case, 93 F.(2d) 56 (App.D.C., 1937).

 

[Paul84]

Where specifically in FRCP 4 so I can look directly at the exact language.