I.
Overview
§17.1
MCR 2.116, the Michigan Court Rule covering summary disposition, provides the means for a party to test, in whole or in part, any perceived deficiencies in substantive legal claims and defenses. The timing of the filing of a motion for summary disposition may be critical: except for motions asserting lack of subject-matter jurisdiction or governmental immunity, all grounds for summary disposition may be waived if they are not asserted in a timely fashion. This can even include motions under MCR 2.116(C)(8) (failure to state a claim), (9) (failure to state a defense), and (10) (no genuine issue of material fact), which are subject to the time periods contained in a duly entered scheduling order. Moreover, some grounds must be raised in the party’s first responsive pleading or first motion to avoid waiver: MCR 2.116(C)(1) (lack of jurisdiction over person or property), (2) (insufficient process), and (3) (insufficient service). MCR 2.116(D)(1). Even when the court rules do not require compliance with strict deadlines, carefully consider the timing strategy of a motion for summary disposition and allow time for compliance with special requirements for filing and service. Such motions must generally be filed and served at least 21 days before the time set for the hearing. MCR 2.116(G)(1)(a)(i). But see also MCR 2.116(B)(2), which states that although a motion “may be filed at any time consistent with subrule (D) and subrule (G)(1), … the hearing on a motion brought by a party asserting a claim shall not take place until at least 28 days after the opposing party was served with the pleading stating the claim.”
A motion brought under MCR 2.116(C)(1) challenges the court’s personal (in personam) jurisdiction (that is, questions whether a nonresident defendant has sufficient “minimum contacts” with the state to enable the court to render a binding personal judgment against that party) or the court’s jurisdiction over the real or personal property (in rem jurisdiction). The court must resolve all factual disputes for the purpose of deciding a motion challenging the court’s jurisdiction in favor of the nonmoving party (the plaintiff). If there is a disputed issue of fact, the motion must be denied; however, the court may hold an immediate trial on that issue and render judgment on the facts as determined by the court, or it may defer a decision until trial on the case as a whole (a procedure applicable to the other grounds for summary disposition as well).
Motions brought under MCR 2.116(C)(2) or (3) are proper when it appears that the process issued in the action is insufficient, while motions brought under MCR 2.116(C)(3) are proper when service of process is insufficient (both grounds may be raised in the same motion). However, summary disposition should be granted only when the defect in process or service of process is so substantial that it actually affects the court’s authority to exercise personal jurisdiction.
A motion brought under MCR 2.116(C)(4) argues that the court does not have the authority to adjudicate the types of causes of action at issue. The Michigan Constitution defines and circumscribes subject-matter jurisdiction of trial courts. In general, the circuit court has general jurisdiction to hear civil claims. The legislature has granted certain specialized courts or tribunals exclusive jurisdiction over particular areas of law (such as worker’s compensation actions). Federal statutes preempt certain claims, thus depriving the state courts of subject-matter jurisdiction.
When it appears that the party asserting the claim does not have legal capacity to sue, MCR 2.116(C)(5) provides the proper grounds for summary disposition. Examples include cases of legal disability such as infancy or mental incompetency.
MCR 2.116(C)(6) provides for summary disposition when another action has been initiated between the same parties involving the same claim. Not all parties and all issues in the two lawsuits need to be identical for summary disposition to be appropriate, as long as the two suits are based on the same cause or substantially the same cause.
A party may bring a motion under MCR 2.116(C)(7) based on certain specified affirmative defenses (note that not all affirmative defenses are included in this subpart, and motions based on affirmative defenses not referenced in the rule must be based on another subpart). See also 1 Ronald S. Longhofer & Daniel D. Quick, Michigan Court Rules Practice §2116.5 (8th ed 2022) (“[T[he list contained in MCR 2.111(F)(3) is illustrative only, and that rule encompasses any defenses of a similar nature (i.e., avoidance defenses), while MCR 2.116(C)(7) is limited to the matters specifically stated therein.”). MCR 2.116(C)(7) includes motions based on the ground that the claim is barred because of “release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.”
Motions brought under MCR 2.116(C)(8) and (9) are unusual in that the motions are decided on the pleadings alone—no other evidence may be considered. MCR 2.116(G)(5) (“Only the pleadings may be considered when the motion is based on subrule (C)(8) or (9).”); MCR 2.116(G)(2) (“Except as to a motion based on subrule (C)(8) or (9), affidavits, depositions, admissions, or other documentary evidence may be submitted by a party to support or oppose the grounds asserted in the motion.”); see also Township of Williamstown v Hudson, 311 Mich App 276, 287, 874 NW2d 419 (2015) (“Motions for summary disposition under either MCR 2.116(C)(8) or (C)(9) test the legal support for a claim—either on the pleadings alone under (C)(8), … or on the sufficiency of a party’s defense under (C)(9) ….”). When deciding a motion under MCR 2.116(C)(8), the court must accept as true all factual allegations in the complaint. Illustratively, such a motion should be granted in circumstances under which a complaint fails to state a claim, despite the court taking all factual allegations as true, if the defendant owes no duty to the plaintiff as a matter of law or if a plaintiff has alleged a claim under the common law when the claim is preempted by another remedy created by statute. When deciding a motion under MCR 2.116(C)(9), the court must grant the motion only if the defenses raised are so clearly untenable that no factual development could possibly deny the plaintiff’s right to recovery.
The most common basis for a motion for summary disposition is MCR 2.116(C)(10): there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. A party seeking summary disposition under this subpart is required to specifically identify those issues about which the party believes there are no disputed material facts and must submit affidavits, depositions, admissions, or other documentary evidence in support of the motion. When faced with a properly supported motion under MCR 2.116(C)(10), an opposing party may not rest on mere allegations or denials in its pleadings but must by affidavit or other documentary evidence set forth specific facts showing that there is a genuine issue for trial. Granting the nonmoving party the benefit of any reasonable doubt about material facts, the court must then determine whether a factual dispute exists to warrant a trial—but may not make factual findings or weigh credibility. Although there are no specific deadlines set forth in the rule for such motions, they are generally considered to be premature if discovery concerning a disputed issue is incomplete. See City of Southfield v Shefa, LLC, 340 Mich App 391, 416, 986 NW2d 607, leave to appeal denied, 509 Mich 1055, 975 NW2d 458 (2022).
If the grounds asserted for summary disposition are based on MCR 2.116(C)(8), (9), or (10), the court “shall give” the parties an opportunity to amend their pleadings to correct the defect as provided by MCR 2.118 unless the evidence indicates that an amendment would not be justified. MCR 2.116(I)(5).
MCR 2.116 is not a rule of sanction. Therefore, it is incorrect as a matter of law for a trial court to grant summary disposition as a sanction for some form of misconduct. Brenner v Kolk, 226 Mich App 149, 155, 573 NW2d 65 (1997) (error to dismiss for failure to preserve evidence).
Finally, if a party bringing a motion for summary disposition mislabels the motion by incorrectly stating the subrule of MCR 2.116 on which the party relies, the defect is not fatal as long as summary disposition is appropriate under another subrule. See, e.g., Gavrilides Mgmt Co, LLC v Michigan Ins Co, 340 Mich App 306, 314, 985 NW2d 919, leave to appeal denied, 510 Mich 1086, 981 NW2d 725 (2022); Detroit News, Inc v Policemen & Firemen Ret Sys, 252 Mich App 59, 66, 651 NW2d 127 (2002); Ellsworth v Highland Lakes Dev Assocs, 198 Mich App 55, 57–58, 498 NW2d 5 (1993).
II.
When Summary Disposition Is Available
A. Time to Raise
§17.2
Because MCR 2.116 covers so many different forms of challenges to claims and defenses, you must have sound knowledge of the requirements of MCR 2.116(D) concerning when and how a particular ground
for summary disposition must be raised for it to be preserved.
Practice Tip
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Caution: All of the grounds for summary disposition under MCR 2.116 except lack of subject-matter jurisdiction and governmental immunity may be waived if they are not asserted in a timely fashion. Although motions may usually be brought at any time under MCR 2.116(C)(8) (failure to state a claim), (9) (failure to state a defense), and (10) (no genuine issue of material fact), they may be subject to the trial court’s scheduling order that establishes a specific time within which to bring such motions.
Consequently, your first task is to determine how many possible grounds for summary disposition can be asserted consistent with the obligations of MCR 1.109(E)(5) (attorney’s certification that the paper filed and signed is offered in good faith) and when and how these must be asserted to be properly preserved.
Although the summary disposition rule provides clear direction about when a challenge to a claim or defense must be made, a distinction must be made between the acts necessary to preserve a particular ground for summary disposition (that is, how to avoid waiving it) and the acts necessary to make an actual challenge.
For preservation purposes, MCR 2.116(D) establishes certain time lines within which the various grounds for summary disposition must be raised. Moreover, the rule imposes different sanctions for an untimely filing. Failure to adhere to these requirements can result in the permanent waiver of some grounds for summary disposition.
Summary disposition grounds that may be raised at any time, even after a scheduling order deadline
A motion brought under MCR 2.116(A) (judgment on stipulated facts) may be filed at any time. A motion brought under MCR 2.116(C)(4) (lack of subject-matter jurisdiction) or based on governmental immunity may be filed at any time, even after the cutoff date for filing dispositive motions established in a
scheduling order. MCR 2.116(D)(3).
Summary disposition grounds that may be deemed waived if brought in violation of the scheduling order
Motions brought under MCR 2.116(C)(8) (failure
to state a claim), (9) (failure to state a defense), and (10) (no genuine issue of material fact) may be filed at
any time, unless a cutoff date for filing dispositive motions is established in a
scheduling order. MCR 2.116(D)(4). If the motion is filed after that cutoff date, it is within the trial court’s discretion to consider it. Id.
Summary disposition grounds that must be raised initially to avoid waiver
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Untimely assertion results in a permanent waiver.
MCR 2.116(D)(1). Motions brought under MCR 2.116(C)(1) (lack of jurisdiction over person or property), (2) (insufficient process), and (3) (insufficient service
of process) must be raised in the party’s responsive pleading or first motion (whichever is filed first) or the challenge is permanently waived. In essence, this means that the first paper filed, whether it is a motion or a responsive pleading, must contain all objections to the court’s personal or in rem jurisdiction and to the process issued in the action or the service of process. See, e.g., Teran v Rittley, 313 Mich App 197, 208, 882 NW2d 181 (2015) (“Defendant waived any challenge to the court’s personal jurisdiction over him when he failed to raise it in his first responsive pleading.”).
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Untimely assertion results in a waiver that may be cured.
MCR 2.116(D)(2). Motions brought under MCR 2.116(C)(5) (lack of capacity to sue), (6) (another action pending between the parties), and (7) (claim barred due to release, immunity, prior payment, res judicata, etc.) must be brought in the party’s responsive pleading unless stated in the first
motion brought before the first responsive pleading or the challenge is waived. Note that although MCR 2.116(C)(7) includes “immunity granted by law,” governmental immunity may be raised at any time. MCR 2.116(D)(3).
Thus, unlike those summary disposition grounds covered by MCR 2.116(D)(1), a party is free to raise some of the grounds covered under MCR 2.116(D)(2) in a first-filed motion and some in the responsive pleading, as
long as all grounds covered by MCR 2.116(D)(2) are raised no later than the first responsive pleading. Moreover, the grounds covered by MCR 2.116(D)(2) are not permanently waived but may be revived if an amended pleading
is filed in accordance with MCR 2.118. In Pontiac Police & Fire Retiree Prefunded Grp Health & Ins Tr Bd of Trs v City of Pontiac No 2, 309 Mich App 611, 620, 873 NW2d 783 (2015), the court of appeals held that MCR 2.116(D)(4) also gives the trial court discretion to allow an otherwise untimely motion asserting grounds listed in MCR 2.116(C)(5), (6), and (7):MCR 2.116(D)(2) provides that a motion for summary disposition based on the “grounds listed in subrule (C)(5), (6), and (7) must be raised in a party’s responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party’s first responsive pleading.” But the trial court has the discretion to allow such a motion even if it was not timely. “It is within the trial court’s discretion to allow a motion filed under this subsection to be considered if the motion is filed after such period.” MCR 2.116(D)(4).
However, this appears to be a misreading of MCR 2.116(D)(4), which on its face applies only to motions asserting “[t]he grounds listed in subrule (C)(8), (9), and (10).” Those grounds may be raised at any time “unless a period in which to file dispositive motions is established under a scheduling order entered pursuant to MCR 2.401.” The discretion referenced by the court of appeals in City of Pontiac relates only to the trial court’s ability to permit the filing of motions for summary disposition under MCR 2.116(C)(5), (6), and (7) after a scheduling order cutoff. It does not permit a trial court to allow a party to assert grounds listed in subrule MCR 2.116(C)(8), (9), and (10) that were not timely raised in accordance with MCR 2.116(D)(2).
Some have suggested that the grounds listed in MCR 2.116(C)(1), (2), and (3) may be raised following the filing of the first responsive pleading or motion—despite the clear language in MCR 2.116(D)(1)—if the responsive pleading is amended under MCR 2.118. This analysis appears to be incorrect and is most likely based on MCR 2.116(D) as it existed before its 1992 amendment. In 1992, MCR 2.116(D)(2) was amended to include a specific reference to amendment of pleadings under MCR 2.118 (see
staff note to MCR 2.116). MCR 2.116(D)(1) was not so amended. The distinction urged here appears to be supported by the supreme court’s analysis in Leite v Dow Chem Co, 439 Mich 920, 478 NW2d 892 (1992). In Hansen Family Tr v FGH Indus, LLC, 279 Mich App 468, 477 n7, 760 NW2d 526 (2008), the court of appeals, relying on MCR 2.111(F)(3), stated in dicta that the defense of lack of personal jurisdiction may be raised even after the first responsive pleadings or motion if the responsive pleading is later amended. This would appear to be contrary to the plain language of MCR 2.116(D)(1).
The filing of a document that is not a pleading or a motion will not trigger a waiver under MCR 2.116(D). The term pleading is defined term under MCR 2.110(A) as- a complaint;
- a cross-claim;
- a counterclaim;
- a third-party complaint;
- an answer to a complaint, cross-claim, counterclaim, or third-party complaint; or
- a reply to an answer.
Thus, a responsive pleading, although undefined in MCR 2.116(D), includes only an answer to a complaint, cross-claim, counterclaim, or third-party complaint, or a reply to an answer. In Rainsberger v McFadden, 174 Mich App 660, 667, 436 NW2d 412 (1989), a paternity case, the court held that a defendant does not waive the defense of lack of personal jurisdiction by submitting a form requesting the appointment of an attorney because such a form is neither a responsive pleading nor a motion. In Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 293, 731 NW2d 29 (2007), the court overruled Penny v ABA Pharm Co (On Remand), 203 Mich App 178, 511 NW2d 896 (1993), holding that making a general appearance did not waive an objection to service of process because defendant raised the issue of sufficiency of service of process in his first motion for summary disposition.
B. Avoiding Inadvertent Waivers
§17.3
Although a summary disposition challenge can be preserved by including it in the first responsive pleading, a motion is required to make the court act on the challenge. The problem of inadvertent waiver arises when, for tactical reasons, an attorney responding to a pleading chooses to file as the first response a motion that raises some, but not all, of the summary disposition grounds available.
To illustrate how waiver can occur under MCR 2.116, consider the following two examples:- After investigation of the complaint, defense counsel determines that (1) the client has had insufficient minimum contacts with Michigan to support in personam jurisdiction and (2) the dispute between the parties is the subject of a full and complete
settlement and release of claims agreement. Defense counsel’s two legal conclusions support summary disposition under both MCR 2.116(C)(1) and (7). If the defendant chooses not to answer but unsuccessfully moves first to dismiss the lawsuit only on the ground that the claim
is barred by a release, the defendant’s personal jurisdiction challenge is permanently waived.
- Considering again the first example, assume that defense counsel was unaware of the settlement and release because the client did not recognize its legal significance and never mentioned it. If an unsuccessful motion to dismiss for lack of personal jurisdiction is brought and counsel fails to raise the release as an affirmative defense in the answer, under MCR 2.116(D)(2) the
release affirmative defense is waived unless the court permits an amendment of the defendant’s answer under MCR 2.118.
Practice Tip
- Although MCR 2.116(E) (consolidation; successive motions) does not require that all grounds for summary disposition be brought in one motion, if you initially to move for summary disposition on fewer than all the grounds available, you should include any grounds potentially subject to waiver in the motion or in a first responsive pleading that is simultaneously filed with the motion. See JD Candler Roofing Co v Dickson, 149 Mich App 593, 598, 386 NW2d 605 (1986) (defense of same cause of action pending not waived by filing answer and motion for summary disposition under MCR 2.116(C)(6) on same date).
A party that fails to raise an affirmative defense in its responsive pleading and does not move to amend the pleading may nevertheless, in some circumstances, not waive the defense. In Meridian Mut Ins Co v Mason-Dixon Lines, Inc, 242 Mich App 645, 648, 620 NW2d 310 (2000), the court of appeals concluded that defendant’s
failure to assert the affirmative defense of release in its pleadings did not prevent defendant from later raising the issue in a motion for summary disposition. Defendant’s motion was made shortly after it discovered the release, and plaintiffs did not allege that defendant’s delayed assertion of this defense unfairly surprised or prejudiced them. The court’s decision appears to be inconsistent with MCR 2.116(D)(2).
Form 17.01
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Motion for Summary Disposition, Brief in Support, and Brief in Opposition
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Form 17.02
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Motion for Partial Summary Disposition, Brief in Support, Affidavit in Support, and Brief in Opposition
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