Chapter 3: Pleadings and Process
The Michigan Court Rules recognize the following civil pleadings:
• Complaint;
• Cross-claim;
• Counterclaim;
• Third-party complaint;
•Answer to a complaint, cross-claim, counterclaim, or third-party complaint; and
•Reply to an answer. MCR 2.110(A).
Responsive pleadings are required in response to a complaint, counterclaim, cross-claim, third-party complaint, or an answer demanding a reply. MCR 2.110(B).
Affirmative defenses are not pleadings for purposes of MCR 2.110(A), and therefore, do not require a response. McCracken v Detroit, 291 Mich App 522, 523 (2011).
MCR 2.111(A)-(B) governs the format of pleadings, in general, while MCR 2.111(C) governs the content of responsive pleadings.1 Pleadings are also subject to the requirements of MCR 1.109(D)(3) (addressing document verification requirements) and MCR 1.109(E) (addressing document signature requirements). See MCR 2.111(A). At least one attorney of record, or a party if not represented by an attorney, must sign any pleading. MCR 1.109(E)(2). “If a document is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party.” MCR 1.109(E)(3). “An electronic signature is acceptable in accordance with [MCR 1.109(E)(4)].” MCR 1.109(E)(4). “The following form is acceptable: /s/ John L. Smith.” MCR 1.109(E)(4)(a).
A pleading or other document filed by an unrepresented individual who is incarcerated in prison or jail “must be deemed timely filed if it was deposited in the institution’s outgoing mail on or before the filing deadline. Proof of timely filing may include a receipt of mailing, a sworn statement setting forth the date of deposit and that postage has been prepaid, or other evidence (such as a postmark or date stamp) showing that the document was timely deposited and that postage was prepaid.”
Committee Tip:
Courts may receive pleadings filed by an in pro per party (often submitted in letter format). Filings should be reviewed by court staff to determine whether the “pleading” was properly served or is ex parte communication. See Section 1.3(A) for more information on ex parte communication. Additionally, the court may dismiss a matter, MCR 2.504(B), or enter a default, MCR 2.603, if the filing fails to comply with MCR 2.111(C). See Section 4.10(E) regarding involuntary dismissal as a sanction and Section 4.11 regarding defaults. However, courts should recall that dismissal is a drastic action. To facilitate justice, all available options should be considered to devise a sanction that is just and proper (i.e., granting a period in which the party may file an amended pleading in an attempt to cure any defects).
B.Electronic Filing2
“Electronic filing [(e-filing)] and electronic service of documents is governed by [MCR 1.109(G)] and the policies and standards of the State Court Administrative Office [(SCAO)].” MCR 1.109(D)(7). Courts must implement e-filing and electronic service capabilities in accordance with MCR 1.109, and comply with standards established by SCAO. MCR 1.109(G)(2). “Confidential and nonpublic information or documents and sealed documents that are electronically filed or electronically served must be filed or served in compliance with these standards to ensure secure transmission of the information.” Id.
Courts must:
•accept e-filings and allow electronic service of documents;
•comply with the e-filing guidelines and plans approved by SCAO; and
•maintain electronic documents in accordance with the standards established by SCAO. MCR 1.109(G)(3)(a)(i)-(iii).
“[C]ourts that seek permission to mandate that all litigants e-File [must] first submit an e-Filing Access Plan for approval by the State Court Administrative Office.” Administrative Order No. 2019-2, 504 Mich xviii (2019). “Each plan must conform to the model promulgated by the State Court Administrator and ensure access to at least one computer workstation per county.” Id. “The State Court Administrative Office may revoke approval of an e-Filing Access Plan due to litigant grievances.” Id.
Courts must accommodate the filing and serving of materials that cannot be done so electronically. MCR 1.109(G)(3)(c). “The clerk of the court shall convert to electronic format certain documents filed on paper in accordance with the electronic filing implementation plans established by [SCAO].” MCR 1.109(G)(3)(d). “A court may electronically send any notice, order, opinion, or other document issued by the court in that case by means of the electronic-filing system.” MCR 1.109(G)(3)(e). MCR 1.109(G)(3)(e) does not “eliminate any responsibility of a party, under these rules, to serve documents that have been issued by the court.” Id. Attorneys must electronically file documents for required case types in courts that have implemented electronic filing, unless the attorney is exempt from e-filing under MCR 1.109(G)(3)(h) because of a disability. MCR 1.109(G)(3)(f). “All other filers are required to electronically file documents only in courts that have been granted approval to mandate electronic filing by [SCAO.]” Id. See Section 3.1(B)(1)(c) for information on exemptions from e-filing mandates.
“There is only one official court record, regardless whether original or suitable-duplicate and regardless of the medium.” MCR 8.119(D)(4). “Documents electronically filed with the court or generated electronically by the court are original records and are the official court record. A paper printout of any electronically filed or generated document is a copy and is a nonrecord for purposes of records retention and disposal.” Id.
a.General Provisions
Authorized users must electronically provide specified case information,3 including e-mail addresses for achieving e-service.4 MCR 1.109(G)(5)(a)(i). The authorized user is responsible for ensuring that a filing has been received by the e-filing system, and must immediately notify the clerk of the court if it is discovered that the version of the document available for viewing through the e-filing system does not depict the document as submitted (and must resubmit the document if necessary). MCR 1.109(G)(5)(a)(ii). The authorized user may file a motion with the court pursuant to MCR 1.109(G)(7) if a controversy arises between the clerk of the court and the authorized user.5 MCR 1.109(G)(5)(a)(ii).
If the court rejects a submitted document pursuant to MCR 8.119(C), the clerk must notify the authorized user of the rejection and the reason for the rejection. MCR 1.109(G)(5)(a)(iii). The rejection must be recorded in an e-filing transaction (from the court to the authorized user), but the rejected document does not become part of the official court record. Id.
b.Timing
“A document submitted electronically is deemed filed with the court when the transmission to the electronic-filing system is completed and the required filing fees have been paid or waived.”6 MCR 1.109(G)(5)(b). “If a document is submitted with a request to waive the filing fees, no fees will be charged at the time of filing and the document is deemed filed on the date the document was submitted to the court.” Id. “A transmission is completed when the transaction is recorded as prescribed in [MCR 1.109(G)(5)(c)].” MCR 1.109(G)(5)(b). The filing date is the date the document was submitted, regardless of the date the clerk of the court accepts the filing. Id. A document submitted at or before 11:59 p.m. of a business day is deemed filed on that business day. Id. “Any document submitted on a Saturday, Sunday, legal holiday, or other day on which the court is closed pursuant to court order is deemed filed on the next business day.” Id.
c.Exemptions from Mandatory E-Filing
“Where electronic filing is mandated, a party may file paper documents with that court and be served with paper documents according to [MCR 1.109(G)(6)(a)(ii)] if the party can demonstrate good cause for an exemption.” MCR 1.109(G)(3)(g). “For purposes of [MCR 1.109], a court shall consider the following factors in determining whether the party has demonstrated good cause:
(i) Whether the person has a lack of reliable access to an electronic device that includes access to the Internet;
(ii) Whether the person must travel an unreasonable distance to access a public computer or has limited access to transportation and is unable to access the e-Filing system from home;
(iii) Whether the person has the technical ability to use and understand email and electronic filing software;
(iv) Whether access from a home computer system or the ability to gain access at a public computer terminal present a safety issue for the person;
(v) Any other relevant factor raised by a person.” MCR 1.109(G)(3)(g).
“Upon request, the following persons are exempt from electronic filing without the need to demonstrate good cause:
(i) a person who has a disability as defined under the Americans with Disabilities Act that prevents or limits the person’s ability to use the electronic filing system;
(ii) a person who has limited English proficiency that prevents or limits the person’s ability to use the electronic filing system; and
(iii) a party who is confined by governmental authority, including but not limited to an individual who is incarcerated in a jail or prison facility, detained in a juvenile facility, or committed to a medical or mental health facility.” MCR 1.109(G)(3)(h).
An exemption request must be filed (in paper) on a SCAO approved form, verified under MCR 1.109(D)(3), and no fee may be charged for the request. MCR 1.109(G)(3)(i)(i). “The request . . . must specify the reasons that prevent the individual from filing electronically” and may be supported with documents. Id. “If the individual filed paper documents at the same time as the request for exemption under [MCR 1.109(G)(3)(i)], the clerk shall process the documents for filing. If the documents meet the filing requirements of [MCR 1.109(D)], they will be considered filed on the day they were submitted.” MCR 1.109(G)(3)(j).
A request for exemption from e-filing under MCR 1.109(G)(3)(h) must “be approved by the clerk of the court on a form approved by [SCAO].” MCR 1.109(G)(3)(i)(ii). If the clerk is unable to grant an exemption, the clerk must immediately submit the request for judicial review. Id. A judge is required to review requests made under MCR 1.109(G)(3)(g) and MCR 1.109(G)(3)(h)(i), and any requests not granted by the clerk. MCR 1.109(G)(3)(i)(ii). A court must “issue an order granting or denying the request within two business days of the date the request was filed.” Id. The clerk “must hand deliver or promptly mail the clerk approval granted or order entered under [MCR 1.109(G)(3)(i) to the individual. MCR 1.109(G)(3)(k). The request, any supporting documentation, and the clerk approval or order must be placed in the case file. Id. “If there is no case file, the documents must be maintained in a group file.” Id. “If the request was made under [MCR 1.109(G)(3)(h)(i)], both the Request for Exemption from Use of MiFILE and the Request for Reasonable Accomodations [sic], along with any supporting documentation and the clerk approval or order shall be maintained confidentially.” MCR 1.109(G)(3)(k).
“An exemption granted under [MCR 1.109] is valid only for the court in which it was filed and for the life of the case unless the individual exempted from filing electronically registers with the electronic-filing system.” MCR 1.109(G)(3)(l). An individual who waives exemption (by registering with the electronic-filing system) “becomes subject to the rules of electronic filing and the requirements of the electronic-filing system. An individual who waives an exemption . . . may file another request for exemption.” Id.
2.Electronic-Service Process7
Service of process of case initiating documents must be made in accordance with the rules and laws applicable to the particular case type. MCR 1.109(G)(6)(a)(i).
Generally, service of process of all other documents e-filed must be performed through the e-filing system. MCR 1.109(G)(6)(a)(ii). However, service must be made by any other method required by Michigan Court Rules if a party has been exempted from electronic filing or has not registered with the e-filing system. Id. “Delivery of documents through the electronic-filing system in conformity with [the Michigan Court Rules] is valid and effective personal service and is proof of service under Michigan Court Rules.” MCR 1.109(G)(6)(a)(iii). “Except for service of process of initiating documents and as otherwise directed by the court or court rule, service may be performed simultaneously with filing.” MCR 1.109(G)(6)(a)(iv). “When a court rule permits service by mail, service may be accomplished electronically under [MCR 1.109(G)(6)].” MCR 1.109(G)(6)(a)(v).
Parties and attorneys are required to file with the court and serve on other parties or attorneys a written notice of a change in contact information, which includes name, physical address, mailing address, phone number, and email address (when required). MCR 1.109(D)(11)(a). The written notice of changed contact information must be served in accordance with MCR 2.107(C) or MCR 1.109(G)(6)(a). MCR 1.109(D)(11)(a). The clerk of the court must update the case caption with the modified contact information; however, the case title shall not be modified as a result of a change of name. MCR 1.109(D)(11)(b). The court and parties to the case must send or serve subsequent documents to the new mailing address as required by MCR 2.107(C) or the new email address as required by MCR 1.109(G)(6)(a). MCR 1.109(D)(11)(c).
“A document served electronically through the electronic-filing system in conformity with all applicable requirements of this rule is considered served when the transmission to the recipient’s e-mail address is completed. A transmission is completed when the transaction is recorded as prescribed in [MCR 1.109(G)(6)(c)].” MCR 1.109(G)(6)(b).
“In the event the electronic-filing system fails to transmit a document submitted for filing, the authorized user may file a motion requesting that the court enter an order permitting the document to be deemed filed on the date it was first attempted to be sent electronically.” MCR 1.109(G)(7)(a). “The authorized user must prove to the court’s satisfaction that:
(i) the filing was attempted at the time asserted by the authorized user;
(ii) the electronic-filing system failed to transmit the electronic document; and
(iii) the transmission failure was not caused, in whole or in part, by any action or inaction of the authorized user. A transmission failure caused by a problem with the filer’s telephone line, ISP, hardware, or software shall be attributed to the filer.” MCR 1.109(G)(7)(a)(i)-(iii).
“Electronic service by the electronic-filing system is complete upon transmission as defined in [MCR 1.109(G)(6)(b)] unless the person or entity making service learns that the attempted service did not reach the intended recipient.” MCR 1.109(G)(7)(d). “If the transmission is undeliverable, the person or entity responsible for serving the document must immediately serve by regular mail under MCR 2.107(C)(3) or by delivery under MCR 2.107(C)(1) or [MCR 2.107(C)(2)] the document and a copy of the notice indicating that the transmission was undeliverable”; “[t]he person or entity must also include a copy of the notice when filing proof of service with the court under [MCR 1.109(G)].” MCR 1.109(G)(7)(d)(i). “A recipient who is served with a notice under [MCR 1.109(G)(7)(d)(i)] should ensure the electronic filing system reflects their current email address.” MCR 1.109(G)(7)(d)(ii).
If the e-filing system fails to transmit a document selected for service and that document is deemed necessary to ensure due process rights are protected, the State Court Administrator must “provide notice to the affected persons in either of the following ways:
(i) file, as a nonparty, a notice of defective service in each affected case and, as deemed appropriate, serve the notice, or
(ii) send notice of a system-wide transmission failure to each affected system user.” MCR 1.109(G)(7)(e).
“If notice is provided under [MCR 1.109(G)(7)(e)], the clerk of the court where the affected case is filed must enter the event in the case history in accordance with MCR 8.119(D)(1)(a).” MCR 1.109(G)(7)(f). A fee must “not be assessed on a motion filed claiming that rights in the case were adversely affected by transmission failure of a document selected for service.” MCR 1.109(G)(7)(g).
“Beginning March 1, 2016, if a fee for commencing a civil action is authorized or required by law, in addition to that fee, the clerk shall also collect an electronic filing system fee, subject to [MCL 600.19938], as follows:
(a) For civil actions filed in the supreme court, court of appeals, circuit court, probate court, and court of claims, $25.00.
(b) Except as proved in subdivisions (c) and (d), for civil actions filed in the district court, including actions filed for summary proceedings, $10.00.
(c) For civil actions filed in district court if a claim for money damages is joined with a claim for relief other than money damages, $20.00.
(d) For civil actions filed in the small claims division of district court, $5.00.” MCL 600.1986(1).9
“Except for an automated payment service fee collected under [MCL 600.1986(5)], and except as provided in [MCL 600.1987(2)10], the electronic filing system fee authorized under [Chapter 19A of the Revised Judicature Act of 1961, MCL 600.101 et seq.] is the only fee that may be charged to or collected in a civil action specifically for electronic filing.” MCL 600.1987(1).
A person is not required to file a document electronically, and courts or their funding units “shall not require or permit a person to file a document electronically except as directed by the supreme court.” MCL 600.1992.
a.Collection of Electronic Filing System Fee
“Subject to [MCL 600.199111], the clerk shall collect the electronic filing system fee listed under [MCL 600.1986(1)] from the party at the time the civil action is commenced, whether or not the document commencing the civil action was filed electronically.” MCL 600.1986(2).12
“An electronic filing system fee collected shall be remitted by the clerk to the state treasurer for deposit into the judicial electronic filing fund created under [MCL 600.176] and shall be used to establish an electronic filing system and supporting technology as provided in [Chapter 19A of the Revised Judicature Act of 1961, MCL 600.101 et seq.].” MCL 600.1989.
“If the court waives payment of a fee for commencing a civil action because the court determines that the party is indigent or unable to pay the fee, the court shall also waive payment of the electronic filing system fee.” MCL 600.1986(3).
“If a document is submitted with a request to waive the filing fees, no fees will be charged at the time of filing and the document is deemed filed on the date the document was submitted to the court.” MCR 1.109(G)(5)(b).
“A party that is a governmental entity is not required to pay an electronic filing system fee.” MCL 600.1986(4).
“The clerk may accept automated payment of any fee being paid to the court. If the bank or other electronic commerce business charges the court or court funding unit a merchant transaction fee, the clerk may charge the person paying the fee an additional automated payment service fee as authorized by [SCAO]. The amount of the automated payment service fee shall not exceed the actual merchant transaction fee to be charged to the court or court funding unit for accepting an automated payment by a bank or other electronic commerce business, or 3% of the automated payment, whichever is less.” MCL 600.1986(5).
Filing an appearance entitles a party or attorney to be served with all documents as provided by MCR 2.107(A). MCR 2.117(A)(2); see also MCR 2.117(B)(1). MCR 2.117 addresses appearances by parties and by attorneys representing parties. An appearance by an attorney for a party is deemed an appearance by the party. MCR 2.117(B)(1). An appearance by a law firm is deemed an appearance of the individual attorney and every member of the law firm. MCR 2.117(B)(4); Plunkett & Cooney, PC v Capitol Bancorp, Ltd, 212 Mich App 325, 329 (1995).
1.Limited Appearance13
An attorney may appear on behalf of a party “for limited purposes during the course of an action, including, but not limited to, depositions, hearings, discovery, and motion practice, if the following conditions are satisfied:
(i) The attorney files and serves a notice of limited appearance with the court before or during the relevant action or proceeding, and all parties of record are served with the limited entry of appearance; and
(ii) The notice of limited appearance identifies the limitation of the scope by date, time period, and/or subject matter.” MCR 2.117(B)(2)(c). See also MRPC 1.2(b).
“An attorney who has filed a notice of limited appearance must restrict activities in accordance with the notice or any amended limited appearance. Should an attorney’s representation exceed the scope of the limited appearance, opposing counsel (by motion), or the court (by order to show cause), may set a hearing to establish the actual scope of representation.” MCR 2.117(B)(2)(d).
2.Duration of Appearance14
Generally, an attorney’s appearance continues until a final judgment or final order is entered and the time for an appeal of right has passed. MCR 2.117(C)(1). However, in some circumstances, the attorney may withdraw from the action or be substituted earlier in the case. See MCR 2.117(C)(2); MCR 2.117(C)(4). Regarding withdrawal, generally, “an attorney who has entered an appearance may withdraw from the action or be substituted for only on order of the court.” MCR 2.117(C)(2).
However, an attorney who filed a notice of limited appearance may withdraw by filing a notice of withdrawal from the limited appearance with the court and serving it on all parties of record. MCR 2.117(C)(4). If the party has signed the withdrawal, it is effective immediately upon filing and service. Id. If the party has not signed the withdrawal, it is effective 14 days after filing and service, unless the self-represented party “files and serves a written objection to the withdrawal on the grounds that the attorney did not complete the agreed upon services. Id.
After a limited appearance ends or an order is entered removing an attorney from the case, that attorney must no longer be served case-related documents. MCR 2.117(E).
3.Nonappearance of Attorney Assisting in Document Preparation
“An attorney who assists in the preparation of pleadings or other documents without signing them, as authorized in MRPC 1.2(b), has not filed an appearance and shall not be deemed to have done so.” MCR 2.117(D). See also MRPC 1.2(b)(2) (indicating that the party must designate as “self-represented”). Note that any document prepared by an attorney who has not signed it must include the statement: “‘This document was drafted or partially drafted with the assistance of a lawyer licensed to practice in the State of Michigan, pursuant to Michigan Rule of Professional Conduct 1.2(b).’” MRPC 1.2(b)(1). MCR 2.117(D) “shall not be construed to prevent the court from investigating issues concerning the preparation of such a document.” Id. Although the attorney may rely on the client’s representation of facts when preparing the document, there are limitations as outlined in MRPC 1.2(b)(2).
An appearance, for purposes of the default rules, may be based upon written and oral communications with opposing counsel. Ragnone v Wirsing, 141 Mich App 263, 265-266 (1985).
5.Appearance by Out-of-State Attorney
MCR 8.126 addresses the temporary appearance of attorneys from other jurisdictions. The out-of-state attorney must be eligible to practice in at least one jurisdiction and cannot be disbarred or suspended in any jurisdiction. MCR 8.126(A).
Except where an attorney is representing an Indian tribe intervening in a child custody proceeding, each out-of-state attorney is limited to appearing in five cases in a 365-day period. MCR 8.126(A); MCR 8.126(B)(1). The out-of-state attorney “may be permitted to appear and practice in a specific case in a court, before an administrative tribunal or agency, or in a specific arbitration proceeding in this state when associated with and on motion of an active member of the State Bar of Michigan who appears of record in the case.” MCR 8.126(A). MCR 8.126(A)(1)(a)(i)-(iv) contain the requirements for the motion and affidavit that must be filed. Both documents, along with a fee, must be submitted to the State Bar of Michigan, and “the State Bar of Michigan must notify the court, administrative tribunal or agency, or arbitrator and both attorneys whether the out-of-state attorney has been granted permission to appear temporarily in Michigan within the past 365 days, and, if so, the number of such appearances.” MCR 8.126(A)(1)(b). If the out-of-state attorney has been granted such permission fewer than five times in the past 365 days, the court, tribunal or agency, or arbitrator has discretion whether to grant the request. MCR 8.126(A)(1)(c). If permission to appear is granted, “the Michigan attorney shall submit an electronic copy of the order or writing to the State Bar of Michigan within seven days.” Id.
“An applicant is not required to associate with local counsel, limited to the number of appearances to practice, or required to pay the fee to the State Bar of Michigan, if the applicant establishes to the satisfaction of the court in which the attorney seeks to appear that:
(1) the applicant appears for the limited purpose of participating in a child custody proceeding as defined by MCL 712B.3(b) in a Michigan court pursuant to the Michigan Indian Family Preservation Act, MCL 712B.1 et seq.; and
(2) the applicant represents an Indian tribe as defined by MCL 712B.3; and
(3) the applicant presents an affidavit from the Indian child’s tribe asserting the tribe’s intent to intervene and participate in the state court proceeding, and averring the child’s membership or eligibility for membership under tribal law; and
(4) the applicant presents an affidavit that verifies:
(a) the jurisdictions in which the attorney is or has been licensed or has sought licensure;
(b) the jurisdiction where the attorney is presently eligible to practice;
(c) that the attorney is not disbarred, or suspended in any jurisdiction, is not the subject of any pending disciplinary action, and that the attorney is licensed and is in good standing in all jurisdictions where licensed; and
(d) that he or she is familiar with the Michigan Rules of Professional Conduct, Michigan Court Rules, and the Michigan Rules of Evidence.
(5) If the court in which the attorney seeks to appear is satisfied that the out of state attorney has met the requirements in this subrule, the court shall enter an order authorizing the out of state attorney’s temporary admission.” MCR 8.126(B).
“A civil action is commenced by filing a complaint with a court.” MCR 2.101(B). It must set forth specific factual allegations stating a claim upon which relief can be granted and contain a demand for judgment. MCR 2.111(B). Statutes, court rules, and caselaw contain requirements for particular types of claims. See MCR 2.112.
“Before filing a civil action, including an action for superintending control or another extraordinary writ, the party filing the action shall pay a fee of $150.00.”15 MCL 600.2529(1)(a).
The statute of limitations is tolled “[a]t the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.” MCL 600.5856(a). See also Gladych v New Family Homes, Inc, 468 Mich 594, 595, 598-605 (2003).
“[U]nder [Administrative Order No. 2020-3] and MCR 1.108(1), any day falling during the [COVID-19] state of emergency does not count toward determining the last day of a statutory limitations period.” Carter v DTN Mgt Co, ___ Mich App ___, ___ (2023). “[T]he Supreme Court did not exclude only deadlines that fell during the state of emergency. Rather, it more broadly excluded any day within the state of emergency ‘for purposes of determining the deadline applicable to the commencement of all civil and probate case types under MCR 1.108(1).’” Carter, ___ Mich App at ___, quoting Administrative Order No. 2020-18.
A responsive pleading to a complaint is required. MCR 2.110(A)(5) and MCR 2.110(B)(1). An answer is the typical responsive pleading.
A responsive pleading must respond to each allegation on which the adverse party relies. MCR 2.111(C). “[A] responsive pleading must:
(1) state an explicit admission or denial;
(2) plead no contest; or
(3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial.” MCR 2.111(C).
“Allegations in a pleading that requires a responsive pleading, other than allegations of the amount of damage or the nature of the relief demanded, are admitted if not denied in the responsive pleading.” MCR 2.111(E)(1). “Allegations in a pleading that does not require a responsive pleading are taken as denied.” MCR 2.111(E)(2). “A pleading of no contest, provided for in [MCR 2.111(C)(2)], permits the action to proceed without proof of the claim or part of the claim to which the pleading is directed.” MCR 2.111(E)(3). “Pleading no contest has the effect of an admission only for purposes of the pending action.” Id.
2.Affirmative Defense16
“An affirmative defense is a defense that does not controvert the plaintiff’s establishing a prima facie case, but that otherwise denies relief to the plaintiff.” Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 312 (1993). In other words, an affirmative defense accepts the plaintiff’s allegations, but would deny relief for a reason not disclosed in the pleadings. Id. at 312. The list of affirmative defenses in MCR 2.111(F)(3) is not exclusive. Citizens Ins Co of America v Juno Lighting, Inc, 247 Mich App 236, 241 (2001), citing Campbell v St John Hosp, 434 Mich 608, 616 (1990). The party asserting an affirmative defense has the burden of presenting evidence to support it. Palenkas v Beaumont Hosp, 432 Mich 527, 548, 550 (1989). Once evidence supporting the affirmative defense has been introduced, the burden shifts to the plaintiff to provide clear and decisive evidence negating the defense. Law Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC, 326 Mich App 684, 707 (2019), rev’d in part on other grounds 507 Mich 272 (2021)17 (trial court improperly placed the burden of proof on the plaintiff to prove defendant’s affirmative defense).
“An affirmative defense must be stated in a party’s responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, or the defense is waived.” Citizens Ins Co Of America v Juno Lighting, Inc, 247 Mich App 236, 241 (2001), citing MCR 2.111(F)(3) and Chmielewski v Xermac, Inc, 216 Mich App 707, 712 (1996), aff’d 457 Mich 593 (1998); see also MCR 2.111(F)(2)(a). “[A]n affirmative defense is [not] adequately preserved by raising it in a response to a motion for leave to amend the complaint” because a defendant’s “response to [a] motion to amend [is] not a responsive pleading.” Dell v Citizens Ins Co of America, 312 Mich App 734, 757 (2015), citing MCR 2.110(A) (holding that the defendant failed to adequately preserve its affirmative defense where the defense was raised in response to the plaintiff’s motion for leave to amend the complaint). See Section 3.7(E) for additional discussion.
“[D]espite the language in MCR 2.111(F)(3) that affirmative defenses should be part of the responsive pleadings, affirmative defenses do not amount to a pleading by themselves nor do affirmative defenses demanding a reply count as a pleading requiring a response.” McCracken v Detroit, 291 Mich App 522, 528 (2011). “Although affirmative defenses are not ‘pleadings,’ the court rules unambiguously permit them to be amended in the same manner as pleadings.” Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 213 (2013) (citation omitted), overruled in part on other grounds 498 Mich 68, 74 (2015).18 “[A] defendant may move to amend their affirmative defenses to add any that become apparent at any time, and any such motion should be granted as a matter of course so long as doing so would not prejudice the plaintiff.” Tyra, 302 Mich App at 213, citing MCR 2.118(A)(2).
If a defense is based on a written instrument, a copy of the instrument must be attached to the pleading and labeled according to standards established by the State Court Administrative Office, subject to exceptions listed in the court rule. MCR 2.113(C)(1). Additionally, affirmative defenses must be listed under a separate heading and must include the facts constituting such defense. MCR 2.111(F)(3). “The purpose of this requirement is to provide the opposing party with sufficient notice of the alleged affirmative defenses to permit that party to take a responsive position, and a stated affirmative defense that does so will not be deemed insufficient.” Tyra, 302 Mich App at 213-214. “[A] statement of an affirmative defense must contain facts setting forth why and how the party asserting it believes the affirmative defense is applicable.” Id. at 214.
3.Time for Filing and Serving Responsive Pleadings19
If personally served with complaint in Michigan. The defendant must serve and file an answer or take other action, as permitted, within 21 days of being served with notice. MCR 2.108(A)(1).
If served with complaint outside Michigan or manner of service required was by registered mail. The defendant must serve and file an answer or take other action, as permitted, within 28 days of being served with notice. MCR 2.108(A)(2).
If served with complaint via substituted service (posting or publication). The court must allow the defendant a reasonable time to answer or take other action as permitted. The time prescribed must not be less than 28 days after publication or posting is complete. MCR 2.108(A)(3).
If served with a pleading stating a cross-claim or counterclaim against the party. The served party must serve and file a reply within 21 days after service of the pleading to which the reply is directed. MCR 2.108(A)(4).
If served with a pleading to which a reply is required or permitted. The served party may serve and file a reply within 21 days of being served with the pleading to which the reply is directed. MCR 2.108(A)(5).
If the action alleges medical malpractice and is filed on or after October 1, 1986. Unless the defendant responded pursuant to MCR 2.108(A)(1) or MCR 2.108(A)(2), he or she “must serve and file an answer within 21 days after being served with the notice of filing the security for costs or the affidavit in lieu of such security as required by MCL 600.2912d.” MCR 2.108(A)(6).
A motion raising a defense or an objection to a pleading must be filed and served within 21 days of service or the time for filing a responsive pleading. MCR 2.108(B).
F.Counterclaims and Cross-Claims
1.Designation of Cross-Claim or Counterclaim
A cross-claim or counterclaim may be combined with an answer if it is clearly designated as such. MCR 2.110(C). If it is not clearly designated in the answer, no responsive pleading is required to the cross-claim or counterclaim. MCR 2.110(C)(1). When there is no designation, the court has discretion to declare the pleading as “properly designated and require the party to amend the pleading, direct the opposing party to file a responsive pleading, or enter another appropriate order.” MCR 2.110(C)(2). If a cross-claim or counterclaim is designated as a defense or vice versa, the court may declare the designation proper and enter an appropriate order. MCR 2.110(C)(3).
2.Counterclaim Against Opposing Party
“A counterclaim may, but need not, diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.” MCR 2.203(C).
3.Counterclaim Excepted From Operation of Periods of Limitations
Pursuant to MCL 600.5823, to the extent of the amount established as the plaintiff’s claim, the periods of limitations prescribed in [MCL 600.5801 et. seq.] do not bar a counterclaim, unless it was barred at the time the plaintiff’s claim accrued. See, generally, Wallace v Patterson, 405 Mich 825 (1979); Warner v Sullivan, 249 Mich 469 (1930).
4.Cross-Claim Against Co-Party
A party may file a cross-claim against a co-party. MCR 2.203(D). “A pleading may state as a cross-claim a claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or that relates to property that is the subject matter of the original action. The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.” Id.
5.Time for Filing Counterclaim or Cross-Claim
Generally, a counterclaim arising out of the same transaction or occurrence as the principal claim must be joined in one action. MCR 2.203(A). However, if leave to amend to state a counterclaim or cross-claim is denied, and the ruling court does not expressly preclude a separate action, the party is not bound by the compulsory joinder rule and is free to raise the claim in another action. MCR 2.203(E). In other words, a counterclaim or cross-claim may be litigated in a separate action to the extent allowed by the rules of collateral estoppel and res judicata,20 and as long as the court did not specifically preclude a separate action when it denied a party’s request for leave to amend. Salem Indus, Inc v Mooney Process Equip Co, 175 Mich App 213, 216 (1988).
G.Service of Pleadings and Other Documents
“Unless otherwise stated in this rule, every party who has filed a pleading, an appearance, or a motion must be served with a copy of every document later filed in the action.” MCR 2.107(A)(1). Except as provided in MCR 2.603, this requirement ends “after a default is entered against a party,” unless the party “file[s] an appearance or a written demand for service of documents.” MCR 2.107(A)(2).
Service must generally be made on the attorney for a represented party; however, the party must be served the original summons and complaint, the notice or order in contempt proceedings for disobeying a court order, all documents after entry of final judgment or final order and after the time for an appeal of right has passed,21 and in instances where the court orders service on the party. MCR 2.107(B)(1).
Except under MCR 1.109(G)(6)(a), all documents served to a party or a party’s attorney must be served via delivery or first-class mail. MCR 2.107(C).22 “Except as provided by MCR 1.109(G)(6)(a)(ii), the parties may agree to alternative electronic service among themselves by filing a stipulation in that case,” which may include email, text message, or an email or text message alert to log into a secure website to view notices and court papers. MCR 2.107(C)(4)(a). “Some or all of the parties may also agree to alternative electronic service of notices and court documents in a particular case by a court or a friend of the court by filing an agreement with the court or friend of the court respectively.” Id. “This rule does not require the court or the friend of the court to create functionality it does not have nor accommodate more than one standard for alternative electronic service.” MCR 2.107(C)(4)(k).
“Except as otherwise provided in MCR 2.104, [MCR] 2.105, or [MCR] 2.106, proof of service of documents required or permitted to be served must be by written acknowledgment of service, or a written statement by the individual who served the documents verified under MCR 1.109(D[)](3). The proof of service may be included at the end of the document as filed. Proof of service must be filed promptly and at least at or before a hearing to which the document relates.” MCR 2.107(D).
“Except for documents filed pursuant to a protective order issued under MCR 2.302(C), a party seeking to file a document under seal must comply with [MCR 1.109(D)(8)].” MCR 1.109(G)(5)(d). Under MCR 1.109(D)(8), “[p]ublic documents may not be filed under seal except when the court has previously entered an order in the case under MCR 2.302(C). However, a document may be made nonpublic temporarily before an order is entered as follows:
(a) A filer may request that a public document be made nonpublic temporarily when filing a motion to seal a document under MCR 8.119(I). As part of the filing, the filer shall provide a proposed order granting the motion to seal and shall identify each document that is to be sealed under the order. The filer shall bear the burden of establishing good cause for sealing the document.
(b) Pending the court’s order, the filer shall serve on all the parties:
(i) copies of the motion to seal and the request to make each document nonpublic temporarily,
(ii) each document to be sealed, and
(iii) the proposed order.
(c) The clerk of the court shall ensure that the documents identified in the motion are made nonpublic pending entry of the order.
(d) Before entering an order sealing a document under this rule, the court shall comply with MCR 8.119(I). On entry of the order on the motion, the clerk shall seal only those documents stated in the court’s order and shall remove the nonpublic status of any of the documents that were not stated in the order.”23 MCR 1.109(D)(8).
I.Extending Time for Serving and Filing Pleading
MCR 2.108(E) states:
“A court may, with notice to the other parties who have appeared, extend the time for serving and filing a pleading or motion or the doing of another act, if the request is made before the expiration of the period originally prescribed. After the expiration of the original period, the court may, on motion, permit a party to act if the failure to act was the result of excusable neglect. However, if a rule governing a particular act limits the authority to extend the time, those limitations must be observed. MCR 2.603(D) applies if a default has been entered.”
A motion to stay proceedings does not extend the time for filing an answer as does a motion made under MCR 2.108(E) because “nothing in the motion notifies the trial court of the defendant’s desire to extend the time, as a motion under MCR 2.108(E) does.” Huntington Nat’l Bank v Ristich, 292 Mich App 376, 382 (2011). The only way a party may request an extension of time for filing an answer is by filing a motion under MCR 2.108(E). Huntington Nat’l Bank, 292 Mich App at 382-383.
“Whether a particular ground for dismissal is an affirmative defense under MCR 2.111(F) is a question of law that is reviewed de novo[.]” Citizens Ins Co of America v Juno Lighting, Inc, 247 Mich App 236, 241 (2001).