Chapter 17: Dispositive Motions

I.   Overview

§17.1   MCR 2.116 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). Even when the court rules do not require compliance with strict deadlines, an attorney must carefully consider the timing strategy of a motion for summary disposition and must allow time for compliance with special requirements for filing and service. Note that such motions must be filed and served at least 21 days before the time set for the hearing. MCR 2.116(G)(1)(a)(i).

A motion may be brought under MCR 2.116(C)(1) to challenge the court’s personal (in personam) jurisdiction (that is, to question 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). All factual disputes for the purpose of deciding a motion challenging the court’s jurisdiction are resolved 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 may be brought under MCR 2.116(C)(2) or (3) where it appears that the process issued in the action is insufficient or under MCR 2.116(C)(3) where it appears the service of process is insufficient (both grounds may be raised in the same motion). However, it appears that 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 should be brought under MCR 2.116(C)(4) where it appears that the court does not have the power to hear and determine a particular class of causes of action. The subject-matter jurisdiction of trial courts is defined and circumscribed by the state constitution, and, in general, the circuit court has general jurisdiction to hear civil claims. The legislature has provided that certain specialized courts or tribunals have exclusive jurisdiction over particular areas of law (such as worker’s compensation actions), and certain claims are preempted by federal statutes, thus depriving the state courts of subject-matter jurisdiction.

Where it appears that the party asserting the claim does not have legal capacity to sue, a motion should be brought under MCR 2.116(C)(5). 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 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 motion under MCR 2.116(C)(7) may be brought 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, Michigan Court Rules Practice §2116.5, p 390 (5th ed 2004) (“the list contained in MCR 2.111(F)(3) … 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”). Included under MCR 2.116(C)(7) are 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 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)(2); see also Pinebrook Warren, LLC v City of Warren, Nos 355989 et al, slip op at *30, ___ Mich App ___, ___ NW2d ___ (Aug 25, 2022) (“[A] motion under MCR 2.116(C)(8) cannot be opposed or supported with affidavits, depositions, admissions, or other documentary evidence.”). 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, where the defendant owes no duty to the plaintiff as a matter of law, or where a plaintiff has alleged a claim under 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 specifically to 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, No 350885, ___ Mich App ___, ___ NW2d ___ (Feb 10, 2022), leave to appeal denied, 509 Mich 1055, 975 NW2d 458 (June 28, 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).

It should be noted that 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, note that if a party bringing a motion for summary disposition mislabels the motion by incorrectly stating the subrule of MCR 2.116 that the party relies on, the defect is not fatal as long as summary disposition is appropriate under another subrule. Ellsworth v Highland Lakes Dev Assocs, 198 Mich App 55, 57–58, 498 NW2d 5 (1993); see also Gavrilides Mgmt Co, LLC v Michigan Ins Co, 340 Mich App 306, 314, NW2d 919 (Feb 1, 2022), leave to appeal denied, No 164166, ___ Mich ___, 981 NW2d 725 (Dec 7, 2022) (citation omitted) (“Where summary disposition is granted under the wrong rule, Michigan appellate courts, according to longstanding practice, will review the order under the correct rule.”); Detroit News, Inc v Policemen & Firemen Ret Sys, 252 Mich App 59, 66, 651 NW2d 127 (2002) (citation omitted) (“If summary disposition is granted under one subpart of the court rule when it was actually appropriate under another, the defect is not fatal and does not preclude appellate review as long as the record permits review under the correct subpart.”).

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, an advocate must have a 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.

• 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, an advocate’s 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. If the motion is filed after that cutoff date, it is within the trial court’s discretion to consider it. MCR 2.116(D)(4).

Summary disposition grounds that must be raised initially to avoid waiver

1. 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.”).
2. 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 Board of Trs v City of Pontiac, 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).

Note that some commentators 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, 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 paper that is not a defined pleading or a motion will not trigger a waiver under MCR 2.116(D). The term pleading is a strictly defined term, see MCR 2.110(A), and includes only

• a complaint;
• a cross-claim;
• a counterclaim;
• a third-party complaint;
• an answer to a complaint, cross-claim, counterclaim, or third-party complaint; and
• a reply to an answer.

Thus, it appears that the phrase responsive pleading, which is 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, 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, where the 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 typically arises when, for tactical reasons, an advocate responding to a complaint, cross-claim, third-party complaint, or counterclaim 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:

1. 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.
2. 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.

• Although MCR 2.116(E) (consolidation; successive motions) does not require that all grounds for summary disposition be brought in one motion, if an advocate decides initially to move for summary disposition on fewer than all of the grounds available, counsel is advised that any grounds potentially subject to waiver either be included 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, 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 that does not move to amend the pleading may nevertheless, in some circumstances, be found not to have waived the defense. In Meridian Mut Ins Co v Mason-Dixon Lines, Inc, 242 Mich App 645, 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. Note that the court’s decision appears to be inconsistent with MCR 2.116(D)(2).