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MICHIGAN CIVIL PROCEDURE PROFESSOR PHIL PUCILLO

MICHIGAN STATE UNIVERSITY COLLEGE OF LAW

SUBJECT MATTER JURISDICTION

A. In General

• Refers to a court’s ________________________________ to adjudicate a claim of the general class and subject to which the proceeding at issue belongs

• Michigan courts have ________________________ subject matter jurisdiction, while federal courts have ________________________ subject matter jurisdiction.

• A Michigan court will have subject matter jurisdiction to determine a particular kind of case unless that authority is ________________________________ to the federal courts (such as in bankruptcy and patent cases).

Example 1: Peyton brought suit against Davis Corp. for patent infringement in a Michigan court. Would the court have subject-matter jurisdiction?

________, because federal law (28 U.S.C. § 1338) provides that the jurisdiction of the federal courts over such suits is exclusive of state courts.

• If a Michigan court lacks subject matter jurisdiction, it can ________________________________________________ to another court in Michigan that would have subject matter jurisdiction.

B. Challenging Subject Matter Jurisdiction in a Subsequent Proceeding

• A judgment entered by a Michigan court is generally subject to ________________________________________________ when there was a “want of jurisdiction” over the subject matter.

o Differs from the rule in federal court, where a judgment cannot be collaterally attacked for lack of subject matter jurisdiction.

• “Want of jurisdiction”—Michigan court has no power to adjudicate at all

o If there is only a “mistake in the exercise of undoubted jurisdiction” (i.e., the court had subject-matter jurisdiction over the case but erred in the exercise of that jurisdiction), the judgment is not void and it may not be collaterally attacked.

o If there is a “want of jurisdiction,” the court must ________________________ the case if it cannot be properly transferred; otherwise, any judgment rendered would be ________________ and subject to collateral attack.

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C. The Structure of the Michigan Court System

1. Divisions of the Court

o The Michigan Constitution vests the judicial power in one court of justice, which is divided into:

A supreme court; A court of appeals; A circuit court (a trial court of ________________________ jurisdiction); A probate court; and Other courts of limited jurisdiction as established by the Michigan legislature.

2. Michigan Supreme Court

o Highest court in Michigan and court of last resort o Exercises jurisdiction over appeals of ________________ and appeals by leave of court

(primarily from decisions of the ________________________________________________) o Determines questions of law brought before it by ________________________________ from

Michigan courts, as well as federal courts, tribal courts, and appellate courts of other states. o A party seeking to obtain leave to appeal from the Michigan Supreme Court must demonstrate

one of the following:

The issue involves a substantial question as to the validity of a ________________________________________________;

The issue has significant ________________________________ and the case is brought by or against the state, a state agency, or a state officer in his or her official capacity;

The issue involves a legal principle of major significance to the state's jurisprudence; In an appeal before a decision by the Court of Appeals, (1) a delay in final adjudication is

likely to cause ________________________________________________________, or (2) the appeal is from a ruling that a provision of the Michigan Constitution or an action of the legislative or executive branch (including a statute or regulation) is ________________________;

In an appeal from a Court of Appeals decision, the decision is ________________________________________ and will cause ________________________________________________, or the decision conflicts with a Michigan Supreme Court decision or another Court of Appeals decision; or

In an appeal from the Attorney ________________________________ Board, the decision is clearly erroneous and will cause material injustice.

3. Court of Appeals

o Divided into ________________ geographical districts o Exercises jurisdiction over appeals of right and appeals by leave from decisions of the state trial

courts o An appeal from a final judgment of the Michigan Circuit Court or the Court of Claims is usually

an appeal of ________________.

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o Exercises original jurisdiction to issue prerogative and remedial writs or orders as provided by the rules of the Michigan Supreme Court (e.g., writs of mandamus)

4. Circuit Court

o Trial court of ________________________jurisdiction o Exercises original jurisdiction over any civil action in which the amount in controversy exceeds

________________________. o Exercises jurisdiction over appeals from various decisions of the district courts, probate courts,

municipal courts, and administrative agencies.

5. District Court

o Exercises exclusive original jurisdiction over any civil action in which the amount in controversy does not exceed ________________________

Example 2: Phil and Donald were involved in an automobile collision in Michigan. Phil later brought suit against Donald for negligence in Michigan Circuit Court, alleging only $20,000 in damages for injury to property. Would the Circuit Court have subject-matter jurisdiction over the action?

________, because the amount in controversy does not exceed $25,000.

Example 3: Suppose that Phil brought suit in Michigan District Court, and alleging physical injuries in an amount greater than $25,000. Would the District Court have subject-matter jurisdiction over the action?

________, because the amount in controversy exceeds $25,000.

o The "small claims" division of the district court has jurisdiction over cases in which the amount claimed does not exceed $6,000.

Editor's Note 1: The maximum amount for the Michigan small claims division is $6,000 until January 1, 2021.

6. Court of Claims

o Exercises exclusive original jurisdiction over claims and demands made against ________________________ when at least ________________ is at issue.

Discretionary authority over claims against the state when less than $1,000 is at issue is vested in the State Administrative Board.

o Appeals from decisions of the Court of Claims lie with the Court of Appeals in the same manner as appeals from the Circuit Court.

o A claimant may not file a claim with the Court of Claims if there is an adequate remedy in the ________________________________________________.

Example 4: Paula suffered an ankle fracture after she stepped awkwardly into a pothole in a carpool lot operated by the Michigan Department of Transportation (MDOT). She later brought suit against the MDOT for negligence in Michigan


Circuit Court, alleging that she suffered damages in an amount greater than $25,000. Would the Circuit Court have subject-matter jurisdiction over the action?

________, because the MDOT is a state agency and the amount sought exceeds $1,000, making the jurisdiction of the Court of Claims exclusive.

7. Family Division

o Division of the ________________________ Court o Exercises ________________________ jurisdiction over divorce cases, adoption cases, cases

involving juveniles, and cases involving paternity and child support. o Exercises ancillary jurisdiction over cases involving treatment of persons with mental illnesses

or developmental disabilities, and cases involving ________________________________ and conservators.

PERSONAL JURISDICTION

A. In General—personal jurisdiction (in personam jurisdiction) is the authority to adjudicate a claim against a particular party.

B. Consent

1. Express Consent

o A party may consent to the exercise of personal jurisdiction by a Michigan court through a ________________________________________________ that the party will be subject to suit in Michigan court, provided that Michigan is a reasonably convenient place for trial.

o Must not be obtained by misrepresentation, duress, abuse of economic power, or other ________________________________________ means.

2. Implicit Consent

A party may also consent to the exercise of personal jurisdiction by a Michigan court through: o Appointment of ________________________________ in Michigan to receive service of

process on behalf of that party; or o The operation of a motor vehicle in Michigan.

The Secretary of State may be served with process on behalf of a party in any action that arises from an accident involving that party's operation of a motor vehicle on a public highway within the state.

C. The Michigan Long-Arm Statute

1. In General

o Michigan's long-arm statute is more restrictive than the long-arm statutes of many states. o Even if the Michigan long-arm statute is satisfied, also remember to discuss whether the

court’s exercise of personal jurisdiction comports with the ________________________________________________ of the Fourteenth Amendment.


o The Michigan long-arm statute permits a Michigan court to exercise either ________________________ or ________________________ personal jurisdiction over the defendant, depending upon the defendant's activities.

2. General Jurisdiction under the Michigan Long-Arm Statute

A Michigan court may exercise personal jurisdiction over a defendant regardless of whether the cause of action arises out of or is related to the defendant's activities in Michigan if:

o The defendant ________________________ to the court's personal jurisdiction; o The defendant is a Michigan ________________________________ when served with process; o The defendant is present in Michigan when served with process; or o The defendant is a partnership, corporation, or association that is either (a) incorporated or

formed under Michigan law; or (b) that carries on a "________________________ and ________________________ part of its general business" in Michigan.

Example 5: Peter brought suit against David (a Michigan domiciliary who was then residing in Oregon) in Michigan Circuit Court for breach of contract, alleging more than $25,000 in damages. David was properly served with process at his Oregon residence. Would the Circuit Court have general jurisdiction over David under the statute?

________. Even though the contract at issue had no connection to Michigan (and thus there would be no basis for specific jurisdiction over David under the statute), David is a Michigan domiciliary.

Example 6: While driving her Chevy Cruz (which is manufactured in Ohio) on a Kentucky freeway, Penelope suffered injuries after she lost control of the vehicle and it swerved off the road. She later brought suit against General Motors (GM) for product liability in Michigan Circuit Court. Would the Circuit Court have general jurisdiction over GM under the statute?

________. Even though neither the specific vehicle nor the specific incident was connected to Michigan (and thus there would be no basis for specific jurisdiction over GM under the statute), GM carries on a "continuous and systematic part of its general business" in Michigan.

Reminder: In both of these examples, you must then analyze whether the court's exercise of jurisdiction over the defendant would comport with constitutional due process.

3. Specific Jurisdiction under the Michigan Long-Arm Statute

If a defendant's situation falls within one of the categories below, a Michigan court may exercise personal jurisdiction over that defendant only if the cause of action arises out of or is related to the defendant's activities:


o The defendant possesses, ________________, or ________________ any real or tangible personal property situated in Michigan;

o The defendant contracted to ________________________ persons, property, or a risk located in Michigan at the time of contracting;

o The defendant contracted for services to be rendered or materials to be furnished in Michigan by the defendant;

o The defendant transacts ________________________ in Michigan; o The defendant maintains a Michigan domicile while in a marital or family relationship that is

the basis of a claim for divorce, alimony, separate maintenance, property division, child custody, or child support;

o The defendant engages in an act or causes an act to be done in Michigan, or the consequences of which occur in Michigan, that results in an action for ________________; or

o The defendant serves as a director, manager, trustee, or other officer of a corporation that is incorporated under Michigan law or has its principal ________________________________________________ in Michigan.

Example 7: Daphne (a Wisconsin domiciliary and resident) was operating a motorboat on Torch Lake when it was involved in a collision with a motorboat operated by Pat. Pat later brought suit against Daphne for negligence in Michigan Circuit Court, and Daphne was served with process at her Wisconsin residence. Would the Circuit Court have specific jurisdiction over Daphne under the Michigan long-arm statute?

________. Even though there would be no basis for general jurisdiction over Daphne, she committed an act in Michigan that resulted in a tort suit against her.

D. Objecting to Personal Jurisdiction

• In Michigan, as in federal court, a defendant does not waive an objection to a Michigan court's personal jurisdiction merely by entering an appearance in a proceeding.

• The objection will be waived if the defendant fails to raise it in a first motion or a responsive pleading, whichever is filed first.

VENUE

A. In General

• In Michigan, proper venue in a civil action is the appropriate county.

Exam Tip 1: If the fact pattern makes reference to a specific Michigan county (e.g., Wayne County), venue is likely to be at issue.

• Venue is proper in any Michigan county in which a defendant ________________________, has a place of ________________________, conducts business, or—if the defendant is a corporation—has its registered office.


• If no county satisfies any of the above criteria, then venue is proper where the ________________________ resides, has a place of business, or—if the plaintiff is a corporation—has its registered office.

• Venue is also proper in any county in which a _________________________________________ arose, except when (i) the action is based on ________________________ or (ii) there are venue rules that are unique to that kind of action or the particular defendant.

Example 8: Pamela (a Wayne County resident) brought a suit for breach of contract against Davis Corp. (which conducts business only in, and has its corporate office in, Macomb County) in Wayne County Circuit Court. Is Wayne County a proper venue for the suit?

________. The only county that satisfies the defendant criteria is Macomb County, where Davis Corp. conducts business and has its corporate office. With the defendant criteria satisfied, the plaintiff criteria would not even be considered.

Example 9: Same facts as above, except that Davis Corp. conducts business in Wayne County (in addition to conducting business in, and having its corporate office in, Macomb County). Is Wayne County a proper venue for the suit?

________. Wayne County would satisfy the defendant criteria (along with Macomb County) because Davis Corp. conducts business there. As in the prior example, the plaintiff criteria would not even be considered. The fact that Pamela is a Wayne County resident is beside the point.

B. Venue Based upon Specific Actions or Defendants

1. Real Property

In an action to recover or determine a right or interest in real property, to ________________________________ real property, or to foreclose on a lien or mortgage on real property, venue is proper in the county in which the real property at issue is ________________________________.

2. Tangible Personal Property

In action to recover tangible personal property, venue is proper in the county in which the tangible personal property at issue is ________________________________.

3. Torts

o In an action for tort or other theory seeking damages for personal injury, wrongful death, or property damage, venue is proper in the county in which the ________________ occurred and in which:

The ________________________________ resides, has a place of business, or conducts business; or

The defendant has its registered office (if the defendant is a corporation).


o If no county satisfies the above criteria, then venue is proper in the county in which the injury occurred and in which:

The ________________________________ resides, has a place of business, or conducts business; or

The plaintiff has its registered office (if the plaintiff is a corporation).

o If still no county satisfies the above criteria, then venue is proper in a county in which both:

The plaintiff resides, has a place of business, or conducts business, or the plaintiff—if a corporation—has its registered office; and

The defendant resides, has a place of business, or conducts business, or—if a corporation—the defendant has its registered office.

o If still no county satisfied the above criteria, then proper venue will be determined in accordance with the "general" provisions discussed above.

Exam Tip 2: A defendant in an action for products liability conducts business in any county in which the product at issue is ___________________________.

4. Government Entities

o Such as a municipal corporation or public body o Venue is proper in the county in which the ________________________________________ of

the unit is located if the cause of action arose in that county. o Otherwise, venue is proper in any county in which the entity exercises or may exercise

authority.

Example 10: Daphne (a Washtenaw County resident) was operating a motorboat on Torch Lake (in Antrim County) when it was involved in a collision with a motorboat operated by Pat (an Antrim County resident). Pat later brought suit for negligence against Daphne in Antrim County Circuit Court. Neither Daphne nor Pat conducts business in Michigan. Is venue proper in Antrim County?

________. The injury occurred in Antrim County, so we look first for a match with the defendant (Daphne). There is no match because Daphne neither resides nor conducts business in Antrim County. We next look for a match with the plaintiff (Pat). We have one because Pat resides in Antrim County. Consequently, Antrim County is a proper venue.

Example 11: Suppose that Pat was a resident of Ingham County (rather than Antrim County). Would venue be proper in Antrim County?

________. Since there would be no longer be a match between the place of injury and Pat's residence, we must look for a county in which both Pat and Daphne reside and/or conduct business. There is no such county. The result is that we must refer back to the "general" venue provisions, which leaves us with Washtenaw County (Daphne's residence) as a proper venue under the defendant criteria. The plaintiff criteria would not even be considered.


C. Change of Venue

1. Improper Venue

o General rule—a party's objection to venue is ________________________ if not asserted in a motion to change venue filed before or at the time that the defendant files an answer.

A motion to change venue brought after the filing of an answer will not be denied for untimeliness if the court determines that the relevant facts were not known, and could not with reasonable diligence have been known, to the moving party more than ________________________ prior to filing the motion.

o Timely motion—if venue is improper, the court ________________ transfer venue to a county in which venue would have been proper.

NOT discretionary

o Court’s own initiative—permitted, so long as the court provides the parties with notice and an opportunity to be heard on the venue issue

o On a defendant's motion, the court must transfer venue upon a showing that proper venue was established by the ________________________ of a co-defendant solely to control venue (as opposed to a joinder of that co-defendant in good faith).

o Court must impose upon the plaintiff ________________ associated with a transfer.

Includes the statutory filing fee May also include the reasonable attorney fees incurred by the defendant

Example 12: Same facts as in Example 11 above. Daphne responded to Pat's action by filing, at the same time as the answer, a motion to change venue to Washtenaw County. Should the Circuit Court grant the motion?

________. Because the motion was timely and the chosen venue was improper, the change of venue is mandatory.

Example 13: Suppose that Daphne—although aware even before suit was filed that Pat was an Ingham County resident—filed an answer without having filed a motion to change venue to Washtenaw County. If Daphne later files such a motion, should the Circuit Court grant it?

________, because Daphne would have waived her venue objection by failing to file the motion by the time that she filed her answer. Given that she was aware that Pat was an Ingham County resident, she would have no basis to argue that the facts were not known to her.

2. Transfer to a More Appropriate Venue

o Even though venue is proper, the court may transfer the action to a different county for either of the following reasons:

________________________________ of the parties and witnesses; or


An ________________________________ trial cannot be held in the county where the action is pending.

o The court may not order such a transfer on its own initiative.

D. Forum Non Conveniens

• Forum where the action should have been brought is ________________________ of Michigan. • Authorizes a Michigan court to decline to exercise its jurisdiction and ______________________

the action if the convenience of the parties and the interests of justice would be served. • Factors considered in making this determination are:

o Availability of compulsory process for the attendance of unwilling witnesses; o Ease of access to sources of ________________________; o Distance from the ________________ of the incident that gave rise to the litigation; o Enforceability of any judgment obtained; o Possible ________________________________ of any party; o Other practical problems that contribute to the expense of trial; o Administrative difficulties that may arise; and o Consideration of the state law that must govern the case.

SERVICE OF PROCESS

A. Commencement of an Action

A party commences a civil action in a Michigan court by filing a complaint.

B. Time Limits for Service of Process

• A summons issued by a Michigan court in a civil action expires ________ days after the filing of the complaint.

• Within those 91 days, the court may extend the period by issuing a second summons upon a demonstration of due diligence by the plaintiff in attempting to serve original summons.

o Extension must be a definite period—cannot exceed ________________ from the date of the complaint's filing

• Summons expired before defendant served with process—court will consider the action dismissed ________________________ prejudice, unless the defendant has submitted to the court's jurisdiction.

Example 14: Paige filed suit against Dolly in Michigan Circuit Court on June 1, 2016. Paige later sought an extension of the service period after having exercised due diligence in attempting to serve Dolly. On August 15, the Circuit Court extended the period to November 1. Paige served Dolly with a summons and a copy of the complaint on October 15. Would service at the point be timely?


________, because (1) Paige had exercised due diligence in attempting to serve Dolly within the initial 91-day period; (2) Paige obtained the extension within that period; (3) the extension was for a definite period and did not exceed one year from the date of the complaint; and (4) Paige served Dolly within the extended time.

C. Methods of Service of Process

1. Service upon an Individual

o Process may be served upon an individual (natural) person by:

Delivering a summons and a copy of the complaint to him or her personally; or Sending a summons and a copy of the complaint using registered or certified

________________, return receipt requested, and delivery restricted to the addressee.

o If the defendant refuses service by registered or certified mail, another method of service must be used.

In Michigan, there is no punishment for defendant for refusing service (unlike Federal Rules)

a. Substituted service upon a nonresident individual

Process may be served upon an individual who does not reside in Michigan by:

Delivering the summons and a copy of the complaint in Michigan to his or her ________________, employee, representative, sales representative, or servant; and

Sending a summons and a copy of the complaint by ________________________________ mail addressed to the defendant at his or her last known address.

b. Substituted service upon a minor

Process may be served upon a minor by serving the summons and a copy of the complaint::

Upon a person having care and control of the minor, and with whom he or she ________________________; or

Upon his or her guardian.

c. Substituted service upon an incompetent

Process may be served upon a person who has been judicially declared incompetent by serving the summons and a copy of the complaint upon his or her guardian or conservator.

Example 15: Para Corp. brought an action against Darren (an adult who is not an incompetent). Para Corp. sent Darren—via first-class mail to his home address—an envelope containing a summons and a copy of the complaint. Would service upon Darren be proper?

________, because the envelope was neither delivered to Darren personally nor sent to him using registered or certified mail, return receipt requested, with delivery restricted to Darren.


2. Service upon a Corporation—process may be served using any of the following methods:

o By serving a summons and a copy of the complaint upon an ________________________ or the ________________________________________________;

o By (1) serving a summons and a copy of the complaint upon a director, trustee or person in charge of an office or business establishment of the corporation; and (2) sending a summons and copy of the complaint by registered mail to the ________________________________________________________ of the corporation;

o Serving a summons and a copy of the complaint upon the last presiding ________________________, president, cashier, ________________________, or treasurer of a corporation that has ceased to do business by failing to keep up its organization by the appointment of officers or otherwise, or whose term of existence has expired;

o Sending a summons and a copy of the complaint by registered mail to the corporation or an appropriate corporation officer and to the Michigan Bureau of Commercial Services, Corporation Division if:

The corporation has failed to appoint and maintain a ________________________________________________ or to file a certificate of that appointment as required by law;

The corporation has failed to keep up its organization by the appointment of officers or otherwise; or

The corporation's term of existence has expired.

Example 16: Peyton brought an action against Donald Corp in Michigan Circuit Court. Phil thereafter arranged for a summons and a copy of the complaint to be sent by registered mail to Davis Corp.'s principal office, but took no other action relating to service. Would service upon Davis Corp. be proper?

________, because Peyton did not also serve a summons and a copy of the complaint upon a director, trustee, or person in charge of an office or business establishment of Davis Corp.

3. Service upon a Partnership

Process may be served using either of the following methods:

o By serving a summons and a copy of the complaint upon any ________________________________________________; or

o By (1) serving a summons and a copy of the complaint upon the ________________________________________of a partnership office or business establishment; and (2) sending a summons and a copy of the complaint by registered mail to a ________________________________________________ at his or her usual residence or last known address.

4. Service upon an Association

o Process may be served by:


Serving a summons and a copy of the complaint upon an officer, director, trustee, agent, or person in charge of an office or business establishment of the association; and

Sending a summons and a copy of the complaint by registered mail to an ________________________ of the association.

o If an office cannot be located, a summons and a copy of the complaint may be sent by registered mail to a ________________________ of the association other than the person on whom the summons and complaint was served.

5. Notice by Publication

o Must show service of process cannot ________________________________________ be made on the defendant

o The court may order that the defendant receive notice of the action by publication. o A copy of the order must be:

Published once each week for ________________ consecutive weeks in a newspaper in the county where the defendant ________________________ if known, and if not known, then the county in which the action is pending; and

Sent to the defendant at his or her last known address by registered mail, return receipt requested, before the date of the last publication.

D. Proof of Service of Process

• May be established by any of the following three methods:

o ________________________________________________________ of receipt of a summons and a copy of the complaint by the person to whom service was directed or by a person who is authorized to receive service of process;

o A certificate setting forth the facts of service, when service is made within Michigan by (1) a sheriff; (2) a deputy sheriff or bailiff, if that officer holds office in the county in which the court issuing the process is held; (3) an appointed court officer; or (4) an attorney for a party; or

o An ________________________________ setting forth the facts of service, and indicating the process server's official capacity, if any.

• Service by registered or certified mail, return receipt requested, must be proven with a copy of the return receipt attached to the proof showing service.

• Failure to provide proof of service does not affect the validity of the service.

PLEADINGS AND DEFAULT JUDGMENTS

A. Content of a Complaint

• In Michigan, each allegation in a pleading must be ________________________, concise, and ________________________.

• A claim (including a counterclaim, cross-claim, or third-party claim) must contain a ________________________________________________________ with the specific allegations


necessary reasonably to inform the adverse party of the nature of the claim on which that party must defend.

• Claim must also contain a _________________________________________________________. • Damages sought—specific amount must be stated if it is a claim for a

________________________________ or when the amount sought is ________________ or less.

o In all other cases, a specific amount may not be stated; however, the pleading must include allegations demonstrating that the claim is within the court's subject-matter jurisdiction.

B. Content of an Answer

• As in federal court, a party answering a complaint filed in Michigan court must respond to each allegation in the complaint; the party may:

o Explicitly ________________ or ________________ each allegation; or o State that the party lacks sufficient knowledge or information to form a belief as to the truth

of the allegation, which has the effect of a ________________.

• Unlike in federal court, however, a party may also respond to an allegation by pleading ________________________________.

o Permits the action to proceed without proof of the claim (or part of the claim) to which the pleading is directed

o Has the same effect as an ________________________________ but only for purposes of the pending action

• Every denial must state the substance of the matters on which the pleader will rely in support of the denial.

• When a responsive pleading states an _______________________________________________, a separate and distinct heading must be used to state the facts constituting a ground of defense that, if not raised in the pleading, would likely take the adverse party by surprise.

C. Time Limits on the Filing of an Answer

• Service effectuated in Michigan—the defendant must file an answer or otherwise respond within ________ days of service.

• Service effectuated outside of Michigan or by registered mail addressed to defendant—the defendant must file an answer or otherwise respond within ________ days of service.

• Notice by publication—court must allow a reasonable time for the defendant to answer or otherwise respond.

o Reasonable time may not be less than ________ days after completion of publication

Example 17: Pat brought suit against Daphne (a Wisconsin domiciliary and resident) in Michigan Circuit Court for negligence. Pat's complaint was filed on June 1, 2016, and Daphne was personally served with process at her Wisconsin residence that same day. Daphne filed an answer to the suit on June 26. Was the answer timely?


________, because Daphne was served outside of Michigan, and thus had 28 days to respond. Had Daphne been personally service with process in Michigan, she would have had only 21 days to respond (and thus her answer would have been untimely).

D. Default and Default Judgments

1. Default

o When a defendant fails to plead or otherwise defend against an action, the clerk of the court ________________ enter a default against that party.

o Notice of the default must be sent to all parties who have appeared and to the defaulted party. o A defaulted party may not proceed with the action until the court has

________________________________ the default.

2. Default Judgments

o A party requesting that a default judgment be entered against a defaulted party must provide the defaulted party with notice of the request when any of the following apply:

Defaulted party has ________________________________ in the action; The relief sought in the default judgment is different in kind from, or greater in amount

than, the relief sought in the pleadings; or The pleadings do not state a ________________________________________________

demanded.

• If notice is required, it must be served at least ________ days prior to entry of the requested default judgment.

o The clerk of the court may enter a default judgment when:

The plaintiff's claim against the defendant is for a _______________________________; The default was entered because the defendant failed to appear; The defaulted party is neither an ________________ nor an

________________________________________ person; and The amount of damages requested in connection with the default judgment is not greater

than the amount of damages demanded in the complaint.

o All other cases—the party entitled to a default judgment must file a motion requesting that the court enter the default judgment.

Court may not enter a default judgment against a minor or incompetent unless that party is represented by a conservator, guardian ad litem, or other representative.

Example 18: Phoebe brought suit against Doug (an adult who is not an incompetent) in Michigan District Court for breach of contract, alleging $15,000 in damages. Phoebe's complaint was filed on June 1, 2016, and Doug was personally served with process that same day. When Doug did not file an answer or otherwise respond to the suit within the 21-day period, Phoebe arranged for the clerk to enter


a default against Doug on July 1. On July 5, Phoebe provided notice to Doug of both the default and of her request that default judgment be entered against him in the amount of $20,000. On July 15, the clerk entered a default judgment against Doug. Was the default judgment validly entered?

________. Even though Phoebe properly notified Doug of both the default and her request for a default judgment, the clerk would lack the authority to enter default judgment because the amount of damages that she sought in the judgment ($20,000) exceeded the amount that she demanded in the complaint ($15,000). Accordingly, Phoebe should have moved that the District Court enter the default judgment.

3. Setting Aside a Default or a Default Judgment

o A court may grant a motion to set aside a default or a default judgment, except when grounded upon a lack of personal jurisdiction over the defendant, only upon:

A demonstration of ________________________________; and The submission of an affidavit showing a meritorious defense.

o If the defaulted party was personally served with process, the default or default judgment may be set aside only if the motion is filed either:

________________ entry of a default judgment; or Within ________ days after entry of a default judgment (if one has been entered).

o An order setting aside a default or default judgment must be conditioned on the defaulted party’s payment of costs incurred by the other party in reliance on the default or default judgment.

o The court has discretion to impose additional conditions, including the defaulting party's payment of a reasonable attorney fee to the other party.

Editor's Note 2: The lecturer mistakenly cites this example as referring to the facts in Example 17. This example actually uses the facts from Example 18. Also, note that Example 19 takes place in the District Court, not the Circuit Court.

Example 19: Same facts as Example 18 above, except that the default judgment against Doug was validly entered by the District Court (on Phoebe's motion) on July 15, 2016. On July 31, Doug moved that the District Court set aside the default judgment. Assuming that Doug demonstrated good cause and submitted an affidavit showing a meritorious defense, should the District Court set aside the default judgment?

________, because Doug's motion was timely filed (within 21 days of the default judgment) and he satisfied the required showing. However, Doug would have to pay the costs that Phoebe incurred in reliance upon the default judgment, and perhaps a reasonable attorney fee as well.


E. The Filing of a Reply

• A reply to an answer need not be filed unless a reply is demanded by ________________________________________.

F. Amendments to Pleadings

• Party may amend a pleading once as of matter of course:

o Within ________ days after being served with a responsive pleading by an adverse party; or o Within ________ days after serving the pleading, if no responsive pleading is required.

• Otherwise, a party may amend a pleading only by leave of the court or by ________________________________________________________ of the adverse party.

• The court shall freely give leave when justice so requires.

o If the court determines that an inexcusable delay in requesting amendment has caused or will cause additional expense to the other party, the court may condition leave to amend on the amending party’s payment of such expenses, including reasonable attorney fees.

• If a party objects to evidence offered at trial on the basis that it is outside the scope of the pleadings, the court may not permit an amendment of the pleading to conform to the evidence unless the amendment and the admission of the evidence would not ________________________________________ the objecting party.

Example 20: Prudence brought suit against Daryl in Michigan Circuit Court, asserting a claim for defamation. Daryl filed an answer to Prudence's complaint on July 1, 2016. Then, on August 1, Prudence filed an amended complaint in which she added a second claim for intentional infliction of emotional distress. Is Prudence's amended complaint valid?

________, because she did not file it within 14 days of Daryl's answer. By August 1, Prudence would have had to obtain either leave of the Circuit Court or Daryl's written consent before filing the amended complaint.

G. Signature Requirement

• Every document submitted to a Michigan court must be signed by: (1) an attorney of record who represents a party; or (2) the party, if not represented.

• Signature may be _____________________________ or ________________________________. • The signature constitutes a certification that:

o The individual has ________________ the document; o The document is well-grounded in ________________ and warranted by

________________________________ law (or a good-faith argument for the extension, modification, or reversal of existing law) to the best of the individual's knowledge, information, and belief formed after reasonable inquiry; and

o The document has not been submitted for an _____________________________________, such as to harass or to cause unnecessary delay.


• In contrast to the standard applied in federal court (under Fed. R. Civ. P. 11), a Michigan court ________________ impose an appropriate sanction upon finding a violation of this rule.

o In Michigan, these sanctions may not be avoided by the submitting party's withdrawal of the document.

JOINDER AND CLASS ACTIONS

A. Permissive Joinder of Parties

• Virtually identical requirements as Fed. R. Civ. P. 20(a)(1) and 20(a)(2) regarding the permissive joinder of plaintiffs and defendants.

• However, the Michigan rules also allow for the joinder of a parties as plaintiffs or defendants simply if their presence in the action will promote the __________________________________ administration of justice.

B. Compulsory Joinder of Parties

• Same as Fed. R. Civ. P. 19—a Michigan court must determine whether an action can proceed without a person whose joinder is necessary to the action.

• Michigan standard—Joinder of a person is necessary when that person has such an interest in the subject matter of an action that the person's presence is essential to permit the court to render ________________________________________________.

• If party cannot be joined in the action, the court may proceed with the action and grant appropriate relief to persons who are parties to prevent a failure of justice. In deciding whether to proceed, the Michigan court must consider

o Whether the court may render a ________________________________________________ in favor of the plaintiff in the absence of the person not joined;

o Whether the plaintiff would have another effective remedy if the court ________________________________________ the action in light of the nonjoinder;

o Whether the nonjoinder would cause ________________________ to either the defendant or the person not joined; and

o Whether the court may lessen or even avoid such prejudice by issuing a protective order or including a provision in the final judgment.

C. Intervention

• Virtually identical requirements as Fed. R. Civ. P. 24(a) regarding intervention of right • However, the applicable Michigan rules provide that a person may intervene as of right in an action

upon the stipulation of all of the parties.

Example 21: Peyton brought suit against Davis Corp. in Michigan Circuit Court for products liability. Pierre, who claims to have been injured in the same manner as Peyton by a product manufactured by Davis Corp., seeks to intervene as a plaintiff in the suit. After obtaining a stipulation from both Peyton and Davis Corp., Pierre


moved for intervention as of right. Assuming that the Circuit Court determines that Pierre's interest in the action is adequately represented by Peyton, should Pierre's motion be granted?

________, because the stipulation of all parties on its own grants Pierre a right to intervene.

D. Interpleader

• The court may award to the stakeholder actual costs of filing an interpleader action, to be paid from the ________________________________ property or by another party.

• Such an award, however, ________________________ include reimbursement for those costs of asserting the stakeholder's own claim to the disputed property, or of supporting or opposing another party's claim.

E. Compulsory Joinder of Claims

• In a pleading that states a claim against an opposing party, the pleader must join against that party any claim that:

o Arises out of the same ________________________________________ or occurrence that is the subject matter of the action; and

o Does not require the presence of a third party over whom the court cannot acquire ________________________________________.

• In contrast to the federal compulsory-counterclaim rule, a pleading in a Michigan court need not assert any counterclaim against an opposing party.

o Thus, unless res judicata principles apply, failure to assert a counterclaim that arises out of the same transaction or occurrence as the subject matter of the opposing party’s claim will not bar the assertion of that claim in a subsequent action.

F. Third-Party Claims (Impleader)

• As in federal court, a defending party in Michigan court may, as a third-party plaintiff, serve a summons and complaint upon a person not a party to the action who may be liable to the third-party plaintiff for all or part of the plaintiff's claim.

• In contrast to the 14-day rule applied by federal court, a third-party plaintiff in Michigan court need not obtain leave of court to serve a third-party complaint if that pleading is filed within ________ days after the filing of the third-party plaintiff's original answer.

Example 22: Peyton brought suit against Davis Corp. in Michigan Circuit Court for products liability. Davis Corp. filed an answer to Peyton's complaint on July 1, 2016. On July 20, Davis Corp. filed a third-party complaint against Thomas Corp. Was Davis Corp. first required to obtain leave of court?

________, because Davis Corp. filed the third-party complaint within 21 days of its original answer.


G. Class Actions

• Same four requirements as apply in federal court: numerosity, commonality, typicality, and adequacy of representation

• However, Michigan adds a fifth requirement of ________________________________: a court must determine that a class action will be superior to all other available methods of adjudication in promoting the convenient administration of justice.

• In assessing the superiority of a class action, the court will consider the following factors:

o Whether separate actions by or against individual class members would create a risk of either:

________________________________________ obligations regarding individual class members that would impose ________________________________________ standards of conduct upon the party opposing the class; or

Adjudications regarding individual class members that would, as a practical matter, dispose of the interests of other members who are not parties to the adjudications or ________________________________ impair or impede their ability to protect their interests.

o Whether final ________________________________ or declaratory relief might be appropriate regarding the class;

o Whether the action will be ________________________________ as a class action; o Whether, in view of the complexity of the issues or the expense of litigation, the separate

claims of individual class members are insufficient in amount to support separate actions; o Whether the amount that individual class members may recover will likely be large enough in

relation to the expense and effort of administering the action to justify a class action; and o Whether individual class members have a ________________________________ interest in

controlling the prosecution or defense of separate actions.

• A motion for certification of an action as a class action must be filed within ________ days after the filing of the complaint containing the class-action allegations.

• Court must direct that individual class members receive ____________________________________________________ of the action in all class actions.

o In determining the manner of the notice, the court will consider:

The extent and nature of the class; The ________________________ requested; The cost of notifying individual class members; The plaintiff's ________________________________; and The possible ________________________________to individual class members or others

who do not receive notice of the action.

o The plaintiff must include in the motion for certification a proposal regarding notice, or state reasons why a determination cannot then be made and offer a proposal of when it should be made.


o As soon as practicable, the court must determine how, when, by whom, and to whom the notice shall be given; the ________________________________ of the notice; and to whom the response to the notice is to be sent.

o The ________________________ must bear the cost of notification.

• In Michigan, each individual class member has the right to ________________________ of any class action by electing to be excluded from the action.

DISCOVERY AND PRETRIAL PROCEDURE

A. Disclosures

Editor's Note 3: Effective January 2020, Michigan now requires initial disclosures similar to those required under the federal rules.

B. Video Testimony by Expert Witnesses

• If it will assist the fact finder, a Michigan court may, with the consent of ________________________________, allow a qualified expert witness to testify at trial by video communication equipment that permits all of the individuals appearing or participating to hear and speak to each other in the court, chambers, or other suitable place.

• Absent good cause to waive the requirement, a party seeking to present expert testimony by video communication equipment must submit a written motion and serve a copy of that motion on all other parties at least ________ days prior to trial.

C. Scope and Limitations of Discovery

1. District Court—no discovery is permitted before entry of judgment, except by ________________________________________ or on the stipulation of all parties.

2. Insurance

Although inadmissible at trial, a party may obtain discovery regarding an insurance policy that could be used to:

o Satisfy a judgment that may be entered in the action; or o ________________________ or reimburse for payments made to satisfy that judgment.

3. Protective Orders

On motion by a party or by a person from whom discovery is sought, and on reasonable notice and for good cause shown, a Michigan court may issue any order that justice requires to protect a party or person from ________________________________, embarrassment, ________________________________, or undue burden or expense.

D. Signature Requirement

• Every discovery request, response, or objection must be signed by: (1) an attorney of record who represents a party; or (2) a party, if not represented.


• The signature constitutes a certification that the signor has ________________ the request, response, or objection, and that to the best of his or her knowledge, information, and belief formed after reasonable ________________________________, it is:

o Consistent with the Michigan court rules and warranted by existing law (or a ________________________ argument for the extension, modification, or reversal of existing law);

o Not submitted for an ________________________________________________ such as to harass or to cause unnecessary delay; and

o Not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery previously conducted in the case, the amount in controversy, and the importance of the issues at stake.

E. Discovery Deadlines

• Set by a _________________________________ order entered by the court after a conference • Court must approve any stipulations extending the time within which discovery may be sought.

F. Pretrial Conferences

• A Michigan court may direct that the attorneys for the parties appear for an early scheduling conference or a pretrial conference.

• Following a pretrial conference, the court may enter an order incorporating agreements reached and decisions made on any matters that will facilitate the ________________ and expeditious disposition of the action, including the amount of time necessary for discovery.

G. Third-Party Discovery

• Michigan rules permit ________________________ discovery of non-parties than the Federal Rules.

• A party may request that a non-party produce and permit for inspection, testing, or sampling any ________________________________________________ that are relevant to the subject matter involved in that action and are in the possession, custody, or ________________ of the non-party.

• A party may also request that a non-party permit _____________________________________.

H. Discovery Devices

1. Depositions

o In Michigan, ________________________________________ to take a deposition is required only if the plaintiff seeks to take a deposition before the defendant has had a reasonable time to obtain an attorney.

A reasonable time has elapsed if:

• The defendant has filed an ________________________________; • The defendant's attorney has filed an appearance; • The defendant has served notice to take a deposition or otherwise sought

________________________________________;


• The defendant has moved for summary disposition; or • ________ days have passed after the defendant has been served with process.

o The court may order a party who gives notice of the taking of a deposition to pay to a party who attended the deposition reasonable expenses incurred in attending, including reasonable attorney fees, if the party who gave notice:

Fails to attend the deposition; or Failed to serve the noticed witness with a ________________________________, and the

witness does not attend the deposition because of that failure.

o An objection during a deposition must be noted on the record and stated ________________________________, civilly, and non-suggestively.

o In contrast to the Federal Rules, Michigan requires that a ____________________________ regarding the testimony of a deponent be asserted at the deposition as opposed to when the testimony is sought to be used.

If the privilege is not asserted at the deposition, it will be waived as to that testimony.

Example 23: Priscilla brought suit against Darla in Michigan Circuit Court for negligence. Priscilla's complaint was filed on July 1, 2016. Counsel for Darla filed an appearance on July 15. On July 20, Priscilla issued Walter (a witness) a notice to take his deposition on September 1. Was Priscilla first required to obtain leave of court?

________, because Darla's counsel had already filed an appearance (and thus a reasonable time to obtain an attorney had elapsed.

Example 24: Suppose that Priscilla, after noticing Walter's deposition for September 1, arranges for him to be served with a subpoena. Both Priscilla and Darla appeared at the deposition at the scheduled time and location on September 1, but Walter failed to appear. Is Priscilla liable to Darla for expenses incurred in attending the deposition?

________, because Walter was served with a subpoena.

2. Interrogatories

Editor's Note 4: In Michigan, effective January 2020, each separately represented party may serve no more than 20 interrogatories upon each party.

o No numerical limit on the number of interrogatories in Michigan o Party may serve interrogatories without leave of court when the interrogatories are to be

served on:

The ________________________________ after commencement of the action; or The ________________________________ with or after service of process.


o A party served with interrogatories must serve answers and any objections on all other parties within ________ days after the interrogatories were served. Exception: A defendant may serve answers within ________ days after service of process.

Example 25: In the suit discussed in Examples 23 and 24 above, suppose that Priscilla served Darla with process on the day that the complaint was filed (July 1, 2016). Before Darla filed an answer or otherwise responded to the complaint, Priscilla served her with interrogatories. Was Priscilla first required to obtain leave of court before serving the interrogatories?

________, because Darla had already been served with process.

3. Physical and Mental Exams

In Michigan, a court order requiring that a person submit to a ________________________ or ________________________ examination must provide that the attorney for the person to be examined may be present at the examination.

OFFERS OF JUDGMENT AND CASE EVALUATION

A. Offers of Judgment

• Michigan rules permit a party to serve on an adverse party an offer to ________________________________ to the entry of a judgment for all or part of a claim.

• The offer may be made until ________ days before trial. • To accept the offer, the offeree must serve a written notice of agreement within ________ days

after service of the offer.

o If the offer is accepted, the court will enter judgment according to the stipulation.

• If the offer is rejected:

o If the verdict (defined as a jury verdict, a judgment entered after a nonjury trial, or a judgment entered on a motion after rejection of an offer of judgment) is more favorable to the ________________________ than the rejected offer, the offeree must pay the offeror's actual costs in prosecuting or defending the action.

o If the verdict is more favorable to the ________________________ than the rejected offer, the offeror must pay the offeree's actual costs in prosecuting or defending the action.

Actual costs include a reasonable attorney fee for services necessitated by the failure to stipulate to entry of judgment.

• The federal rule provides that an offer of judgment may be made only by the party who is ________________________________________________________________ the claim. Moreover, only the offeree may be liable for the offeror's costs if the judgment is less favorable than the rejected offer—only punishes the ________________________________ for rejecting.


Example 26: Priscilla brought suit against Darla in Michigan Circuit Court for negligence. Two months before trial, Priscilla presented to Darla an offer to stipulate to entry of judgment for $100,000, which Darla rejected. Following trial, the jury decided in favor of Priscilla, resulting in a verdict of $120,000. Is Darla now liable to pay Priscilla's actual costs incurred in prosecuting the action?

________, because the verdict is more favorable to Priscilla than her offer.

Example 27: Same as above, except that the verdict was for $80,000. Is Priscilla now liable to pay Darla's actual costs incurred in defending the action?

________, because the verdict was more favorable to Darla than Priscilla's offer.

B. Case Evaluation

1. In General

o Case evaluation is a form of alternative dispute resolution in which a panel of three attorneys evaluates the merits of a case and assesses a settlement value of the various claims.

Medical malpractice cases—two ________________________________________ providers—one chosen by the plaintiff and the other by the defendant—are added to the usual panel of three attorneys.

o A court may submit to case evaluation any civil action in which the relief requested is primarily ________________________________________________ or ________________________________________________.

o Case evaluation is ________________________________________ in tort cases filed in the circuit courts and in which the asserted damages exceed ________________________.

Also mandatory in medical-malpractice cases

o The court may submit an action to case evaluation on:

Written ________________________________________ by the parties; A written motion by a party; or Its own initiative.

o A party who objects to case evaluation must file a written motion within ________ days of the order submitting the action to case evaluation.

The motion must be set for hearing within ________ days after it is filed.

2. The Hearing

o Each party submits to the panel a case evaluation summary setting forth its factual and legal positions on the issues presented in the action.

o Each party may orally address the panel for up to ________ minutes. o May not present testimony from witnesses


o Information regarding settlement negotiations and applicable insurance policy limits is disclosed at the ________________________ request.

o Information provided to the panel is _____________________________________________ in any court.

3. The Panel's Evaluation

o Within ________ days after the hearing, the panel submits a written evaluation specifying a ________________________________ award as to each claim.

o Each party must file a written acceptance or rejection of the panel's evaluation within ________ days of its service.

Party’s failure to do so constitutes a rejection.

o At the expiration of the 28-day period, the clerk will disclose each party's acceptance or rejection.

o Evaluation accepted by all parties—judgment will be entered in accordance with its terms o All or part of the evaluation is rejected—the case will proceed to trial in the normal fashion.

If the evaluation results in a ________________________________________ award, the court may submit the action to a subsequent case-evaluation hearing (which will be conducted without reference to the prior award) or other alternative dispute resolution process at the parties' expense.

4. Liability for Actual Costs

o If a party rejects the panel's evaluation and the action proceeds to verdict, the rejecting party must pay the opposing party's actual costs unless the verdict is more favorable to the rejecting party than the evaluation.

o Both parties reject the evaluation—a party is entitled to costs only if the verdict is more favorable to that party than the evaluation.

o Actual costs include a reasonable attorney fees o The verdict is considered more favorable to the defendant if it is more than

________________________ the evaluation.

If the evaluation was ________, a verdict finding that a defendant is not liable to the plaintiff is deemed more favorable to the defendant.

o The verdict is considered more favorable to the plaintiff if it is more than ________________________ the evaluation.

Example 28: Priscilla brought suit against Darla in Michigan Circuit Court for negligence. The matter was submitted to case evaluation. The panel unanimously awarded $100,000 to Priscilla. Satisfied with that evaluation, Priscilla accepted it. Darla rejected it. Following trial, the jury decided in favor of Priscilla, resulting in a verdict of $120,000. Is Darla now liable to pay Priscilla's actual costs incurred in prosecuting the action?


________, because (1) Darla rejected the evaluation, and (2) the verdict was more favorable to Priscilla than the evaluation (that is, the verdict was more than 10% above the evaluation).

Example 29: Same facts as in Example 28 above, except that the verdict for Darla was for $105,000. Is Darla now liable to pay Priscilla's actual costs incurred in prosecuting the action?

________. Even though Darla rejected the evaluation, the verdict was NOT more favorable to Priscilla than the evaluation (that is, the verdict was NOT more than 10% above the evaluation).

Example 30: Same facts as in Example 28 above, except that BOTH Priscilla and Darla rejected the panel's evaluation of $100,000, and the verdict for Priscilla was only $50,000. Is Priscilla now liable to pay Darla's actual costs incurred in defending the action?

________, because (1) Priscilla rejected the evaluation, and (2) the verdict was more favorable to Darla than the evaluation (that is, the verdict was more than 10% below the evaluation).

ADJUDICATION WITHOUT TRIAL

A. Voluntary Dismissal

• The rules in Michigan for voluntary dismissal mirror the federal rules with one minor variation. • If a defendant pleaded a counterclaim before being served with the plaintiff's motion to dismiss,

the court may not dismiss the action over the defendant's _______________________________ unless the counterclaim can remain pending for adjudication by the court.

B. Involuntary Dismissal

• On the motion of an opposing party or on its own initiative, a court may dismiss a party's action or claims for failure to comply with a Michigan ________________________________ or an ________________ of the court.

• After the plaintiff's presentation of evidence in a nonjury trial, the court may, on the motion of a defendant or on its own initiative, dismiss the plaintiff's action or claim on the basis that the plaintiff has failed to show a ________________________________________________.

• Unless the court's order provides otherwise, such a dismissal generally constitutes an adjudication on the merits.

o However, a dismissal for lack of ________________________ or for failure to join a ________________________________________ does not constitute an adjudication on the merits.

Example 31: Parker brought suit against Dr. Dorothy in Michigan Circuit Court for medical malpractice. After Parker repeatedly refused to produce a set of


documents that Dorothy had legitimately requested, the Circuit Court ordered him to do so. When Parker persisted in refusing to produce those documents, the court entered an order dismissing the action. Assuming that the order was silent on the matter, does the dismissal constitute an adjudication on the merits?

________, because it was an involuntary dismissal for refusal to comply with a court order (as opposed to a dismissal for lack of jurisdiction or for failure to join a necessary party).

C. Dismissal for Lack of Progress

• A Michigan court may, on the motion of a party or on its own initiative, order that an action in which no steps or proceedings appear to have been taken for ________ days will be dismissed for lack of progress unless the parties show that:

o Progress is being made; or o The lack of progress is not attributable to the party seeking affirmative relief.

Editor's Note 5: The lecturer slightly misstates the required showing to prevent a dismissal for lack of progress. The required showing is correct as stated here.

If the required showing is ________________________________, the court may direct the clerk to dismiss the action for lack of progress.

• Unless the court provides otherwise, such a dismissal is ________________________ prejudice. • On motion and for good cause, the court may reinstate an action dismissed for lack of progress on

just terms. • A notice of proposed dismissal may not issue in any action:

o In which a ________________________________ order has been entered and the times for completion of the scheduled events have not expired; or

o Which is set for ________________________________, an alternative dispute resolution process, hearing, or ________________.

D. Summary Disposition

Exam Tip 3: Summary disposition is a heavily tested topic in Michigan.

1. In General

o Combines the motion to dismiss, motion for judgment on the pleadings, and motion for summary judgment provided for in the Federal Rules.

o May seek dismissal of or judgment on all or part of a claim o May also seek summary disposition of a defense

2. Timing

The time limit applicable to a motion for summary disposition depends on the ground on which the motion is based.


a. First motion or responsive pleading

If a party wants to assert lack of ________________________ jurisdiction, insufficient process, or insufficient ________________________of process, these grounds must be raised with the first filed response to the complaint

A party waives these grounds for summary disposition unless they are raised in a first motion for summary disposition or in a responsive pleading, whichever the party files first:

Example 32: Philomena brought suit against Dolores in Michigan Circuit Court for breach of contract. Without filing a motion for summary disposition, Dolores filed an answer in which she asserted a defense of lack of personal jurisdiction. Did Dolores waive her defense of lack of personal jurisdiction by failing to assert it in a motion for summary disposition?

________, because her answer was her first-filed response to the suit.

Example 33: Same facts as in Example 32 above, except that Dolores's first response to the suit was to file a motion for summary disposition in which she asserted that Philomena's complaint should be dismissed for failure to file to comply with the applicable statute of limitations. After that motion was denied, Dolores filed an answer in which she asserted a defense of lack of personal jurisdiction. Did Dolores waive her defense of lack of personal jurisdiction by failing to assert it in her motion for summary disposition?

________, because the motion was her first-filed response to the suit.

b. Responsive pleading

A party waives the following grounds for summary disposition if they were not raised in a responsive pleading (such as an answer), unless such grounds were asserted in a motion for summary disposition filed ________________________ that responsive pleading:

Lack of ________________________________________ to sue; Another action involving the same parties and claims has been

________________________________________; or Entry of judgment, dismissal, or other relief is appropriate because of

________________________________, payment, prior judgment, ________________________________, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, ________________________________or other disability of the moving party, or assignment or other disposition of the claim prior to commencement of the action.

Example 34: In the suit discussed in Examples 32 and 33 above, suppose that Dorothy had first responded to Philomena's suit by filing a motion for summary disposition in which asserted that the complaint should be dismissed for lack of personal jurisdiction. After that motion was denied, she filed a answer in which she asserted a defense of failure to comply with the applicable statute of limitations.


Did Dolores waive her statute-of-limitations defense by failing to assert it in her motion for summary disposition?

________, because the defense (1) was NOT asserted in her motion for summary disposition, and (2) was asserted in her answer

c. Raised at any time, not subject to scheduling order

A party cannot waive the grounds of lack of ________________________________ jurisdiction and ________________________________________ immunity.

Can be raised at any time, even on appeal May be asserted in a motion for summary disposition even after the time limits set forth in

a scheduling order for the filing of dispositive motions have elapsed

d. Raised at any time, but subject to scheduling order

A party waives the following grounds for summary disposition if they are raised in a motion for summary disposition filed only ________________ the time limits set forth in a scheduling order for the filing of dispositive motions have elapsed, unless the court exercises its ________________________________ in favor of considering that motion despite its untimeliness:

Failure to state a ________________ on which relief can be granted; Failure to state a valid ________________________ to a claim asserted; or There is no genuine issue of ________________________________________________ and

the moving party is entitled to judgment as a matter of law.

3. Consolidation—a party may consolidate in a single motion for summary disposition as many ________________________________ or ________________________________ as the party has.

4. Affidavits and Other Evidence

o A party may support or oppose the motion by submitting ___________________________, depositions, _____________________________, and other documentary evidence, except:

When the ground asserted in support of a motion for summary disposition is a failure to state a claim on which relief can be granted or a failure to state a valid defense—court may only consider the ________________________________ in those instances

o These materials must be considered by the court, but only to the extent that the content would be ________________________________ as evidence to establish or deny the grounds set forth in the motion.

o Affidavits, depositions, admissions, and other documentary evidence ________________ be submitted in support when:

The grounds asserted do not appear on the face of the ________________________; or


Judgment is sought on the basis that there is no genuine issue of ________________________________ and the moving party is entitled to judgment as a matter of law.

o When judgment is sought on the basis that there is no ________________________________ issue of ________________________________ fact and the moving party is entitled to judgment as a matter of law:

A motion for summary deposition must specifically ________________________ the issues as to which the moving party believes there is no genuine issue as to any material fact.

• When such a motion is made and supported, an adverse party may not rely upon mere ________________________________ or ________________________ in a pleading.

• Party must, by affidavits or otherwise, set forth specific ____________________ showing that there is a genuine issue for trial.

• A failure to respond results in entry of judgment against the adverse party.

5. Disposition

o If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall enter judgment without ________________________.

o The court may also enter judgment without delay when, after an immediate trial is held to ________________________ a disputed issue of fact, the court is satisfied that a party is entitled to judgment on the facts as determined by the court.

Example 35: After Phil and Donald were involved in an automobile collision at an intersection, Phil brought suit against Donald in Michigan Circuit Court for negligence. Phil alleged that Donald caused the accident by running a red light at the intersection. In lieu of filing an answer, Donald filed a motion for summary disposition in which he asserted that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law as to liability. Donald supported the motion by attaching his own affidavit, affidavits of two bystander witnesses, and the deposition testimony of a store owner who witnessed the accident. These materials attested that it was Phil, not Donald, who ran the red light in question. In response to Donald's motion, Phil submitted the paragraph from his complaint in which alleged that Donald ran the red light. He also attached a letter from a witness who said that he had heard from another witness that Donald had run the red light. Should summary disposition be granted for Donald?

________. Donald specifically identified the issue as to which he believed there was no genuine issue of material fact and supported the motion with affidavits based on personal knowledge. Thus, the burden shifted to Phil to demonstrate that there was a genuine issue of material fact. Phil's allegations in a pleading cannot defeat the motion for summary disposition, and the letter does not help because (i) it is not an affidavit, and (ii) the hearsay statement in the letter would be


inadmissible at trial. Therefore, Phil failed to carry his burden of demonstrating that there is a genuine issue of material fact, and Donald is entitled to judgment as a matter of law.

TRIAL PROCEDURE

D. Summary Disposition (Contd. from Chapter 9)

6. Appeal—after the court rules on a motion for summary disposition, an aggrieved party may obtain review of the court's decision by:

o Seeking ________________________________________ leave to appeal; o Claiming an immediate appeal of right if the court enters a ________________________

judgment; or o Proceeding to final judgment and raising errors of the court in an appeal taken from the final

judgment.

Editor's Note 6: The above portion of this chapter is meant to continue directly from the content on Summary Dispositions in the previous chapter.

A. Jury Demand

• A party seeking trial by jury may file a written demand for trial by jury within ________ days after the filing of the answer or a ________________________________ reply.

• If the demand does not specify the issues of which the party seeks trial by jury, the court will deem the party to have demanded trial by jury as to all issues so triable.

B. Jury Composition

• Under Michigan law, a jury in a civil case comprises ________ jurors. • Absent a stipulation by the parties to the contrary, an agreement by ________ of those six jurors

will be taken as the verdict of the jury.

o Differs from federal law, which requires that the six jurors be unanimous unless the parties stipulate otherwise.

• Michigan - the parties may stipulate in writing or on the record that:

o The jury will comprise ________________________ than six jurors; o An agreement of a stated ________________________________________ of the jurors will be

taken as the verdict; or o If more than six jurors were empaneled, all jurors may deliberate.

Example 36: Suppose that, in the matter of Phil v. Donald discussed in Example 35 above, the Circuit Court denied Donald's motion for summary disposition and the case proceeded to trial. Following its deliberations, the jury reported to the court that four jurors were prepared to find in favor of Donald, while two were prepared to find in favor of Phil. Assuming no pre-trial written stipulation by the parties as to


the jury verdict, would the four-juror agreement in favor of Donald be taken as the verdict?

________. While an agreement by FIVE jurors would have been taken as the verdict, the agreement of only four would NOT be taken as a verdict—even though four jurors would be a majority of the jury—absent a written stipulation by the parties.

C. Juror Qualification

• As with the Federal Rules, Michigan prohibits a person who cannot communicate in English from serving as a juror.

• Also prohibited from jury service:

o Persons who have been convicted of a ________________________; or o Persons who cannot carry out the functions of a juror because of a physical or mental disability.

• A juror in Michigan must be:

o A U.S. citizen; o At least ________ years of age; and o A ________________________________ of the county in which he or she has been selected to

serve.

• Each person called for jury service in Michigan must complete a personal-history questionnaire.

o Refusal or answering falsely will result in contempt of court.

D. Jury Selection

• A Michigan court may examine prospective jurors or permit counsel to do so. • Each party may exercise ________ peremptory challenges to prospective jurors.

o For purposes of this rule, two or more parties on the same side of the case (such as two or more defendants) are generally considered _______________________________________.

o When parties on the same side have adverse interests, each party represented by separate counsel may exercise three peremptory challenges.

• A party may offer a challenge for cause when a prospective juror:

o Is not qualified to serve as a juror; o Is ________________________ for or against a party or attorney; o Shows a state of mind that will prevent him or her from rendering a just verdict, or has formed

a ________________________________ opinion on the facts of the case or on what the outcome should be;

o Has opinions or conscientious scruples that would improperly influence his or her judgment; o Has been ________________________________ as a prospective witness in the action; o Has already sat as a juror on a trial of the same ________________;


o Has served as either a grand or petit juror in a ________________________ action surrounding the same transaction;

o Is ________________________________ to one of the attorneys or parties to the action within the ________________________ degree of consanguinity or affinity;

o Is a guardian, conservator, ward, landlord, tenant, employer, employee, partner, or client of a party or attorney to the action;

o Is or has been adverse to the challenging party or attorney in a ________________ action, or has complained of or has been accused by that party in a ________________________ prosecution;

o Has a ________________________________________ interest other than that of a taxpayer in the outcome of the action; or

o Is interested in a question like the issue to be tried.

Example 37: During jury selection in the matter of Phil v. Donald, it was discovered that Jack (a prospective juror) had a felony conviction for burglary. Phil submitted a challenge for cause regarding Jack. Should the Circuit Court sustain the challenge and excuse Jack from the jury pool?

________, because Jack's felony conviction renders him unqualified to serve as a juror, and a prospective juror may be challenged for cause on the basis that he or she is unqualified.

E. Conduct of a Jury Trial

• Before ________________________ in a trial is taken, the court must provide the jury with instructions that are _______________________________ to assist in its consideration of the case.

• The instructions must communicate:

o The ________________ of the jury; o Trial procedure; and o The law applicable to the case, including the elements of each claim, the legal

________________________________________, and the burdens of proof.

• The court must provide each juror with a copy of the instructions. • The court may authorize or require counsel to provide jurors with a reference document or

________________________. • When it appears likely that the contents of a deposition will be read to the jury, the court should

encourage the parties to prepare a concise, written ________________________ of the deposition for reading at trial in lieu of the full deposition.

• The court may permit the jurors to ________________________________ witnesses.

o Must be addressed to the witness by the court itself o Must ensure that inappropriate questions are not asked o Parties must have an opportunity outside the jury's presence to _______________________

the questions.


• After informing the jurors that they must not decide the case until they have heard all the ________________________________, instructions of law, and arguments of counsel, the court may instruct jurors that they can discuss the evidence among themselves in the jury room during trial ________________________.

o Such discussions may take place only when ________________________________ are present. o Such discussions must be clearly understood as ________________________________ pending

final presentation of all evidence, instructions, and argument.

F. Special Verdicts

• As a general matter, a Michigan court may require that the jury return a special verdict.

o Takes the form of answers to specific questions on each issue of act o Referred to as “special interrogatories”

• Unless the parties agree otherwise, a special verdict must be used in a Michigan action based on ________—or other legal theory seeking damages for personal injury, property damage, or wrongful death—involving ________________ of more than one person (i.e., comparative fault).

• The jury will answer special interrogatories as to:

o The amount of each plaintiff's damages; and o The percentage of ________________________ of each person that contributed to the death

or injury—including each plaintiff—regardless of whether that person is a party to the action.

Example 38: Following a three-bicycle collision involving Pandora, Debra, and Drake, Pandora brought suit against Debra (and only Debra) in Michigan Circuit Court for negligence. The matter proceeded to trial, and the jury was instructed to answer special interrogatories assessing fault for the collision among not only Pandora and Debra, but Drake as well (even though Drake was not a party). The jury's respective assessment of fault was 60% for Pandora, and 20% each for Debra and Drake.

Editor's Note 7: In a tort case in Michigan, fault may be assessed to a non-party to accurately determine the fault of named parties. However, if the non-party is not joined to the action, any finding of the non-party’s fault does not subject the non-party to liability in that action and shall not be introduced as evidence of liability in another action. Therefore, in this example, the jury’s finding that Drake is 20% at fault will not be enforceable or admissible against Drake in an action to recover these damages.

• In a Michigan action to recover for ________________________ injury, the jury will answer special interrogatories as to:

o Past economic and non-economic damages; and o Future damages for each of the following:

Medical and other health-care costs; ________________________________ lost earning capacity, or other economic losses; and


________________________________ loss.

G. Jury Instructions and Deliberation

• A Michigan court may fairly and impartially sum up the evidence if it also instructs the jurors that:

o They are ________________________________ by the court's summation; and o They must determine for themselves the ________________________ of the evidence and the

________________________ to be given to the witnesses.

• Court is prohibited from:

o Commenting on the credibility of witnesses; or o Stating a conclusion on the ultimate issue of ________________ before the jury.

• In instructing the jury, a Michigan court ________________ use the model civil jury instructions approved by the Committee on Model Civil Jury Instructions if those instructions:

o Are ________________________________; o Accurately state the applicable law; and o Are ________________________________ by a party.

• Before closing arguments, the court must give the parties a ________________________________ opportunity to submit written requests for jury instructions.

o Each party must serve a copy of its request on all other parties.

• After closing arguments, the court must instruct the jury as required and appropriate. • The court may also, at its discretion and on notice to the parties, instruct the jury

________________________ closing arguments

H. Jury Discharge

A Michigan court may discharge a jury from an action when:

• An ________________________ or calamity necessitates it; • The parties ________________________ to it; • A mistrial or adjournment is declared; or • The jurors, despite having deliberated, cannot ________________.

POST-TRIAL PROCEDURE, PART I

A. Amending a Judgment

On a party's motion made within ________ days after entry of the judgment, the court may amend or supplement its findings, and amend the judgment accordingly.

B. Judgment Notwithstanding the Verdict ("JNOV")

• Unlike the Federal Rules, the Michigan rule does not require a party to move for a ________________________________________ prior to moving for JNOV.


• In Michigan, a party may move for JNOV within ________ days after the entry of judgment. • A Michigan court will deem a motion for a ________________________________, or a motion to

set aside or otherwise nullify a verdict, as including a motion for JNOV as an alternative.

o Differs from the Federal Rules—under Federal Rules, a party must explicitly request JNOV

Example 39: Suppose that, during trial in the matter of Phil v. Donald, Donald neglected to move for a directed verdict at the close of the evidence. After the jury rendered a unanimous verdict in favor of Phil (and awarded him $100,000 in damages), the Circuit Court entered judgment accordingly. Fifteen days after the judgment, Donald filed a motion for JNOV. Is Donald's motion barred?

________, because it was brought with 21 days of the judgment. Moreover, Donald was NOT required to move for a directed verdict as a condition of later moving for JNOV.

C. Motion for New Trial

1. Grounds for a New Trial

o In Michigan, whenever a party's ________________________________ rights are ________________________________ affected, the court may grant a new trial for any of the following reasons:

________________________________ in the proceedings of the court, jury, or prevailing party, or an order of the court or abuse of discretion that denied the moving party a fair trial;

________________________________ of the jury or of the prevailing party; Excessive or inadequate damages awards appearing to have been influenced by

________________ or prejudice; A verdict that is clearly or grossly ________________________________________ or

________________________________________; A verdict or decision contrary to law or against the ________________ weight of the

evidence; Newly discovered ________________________ evidence that could not with reasonable

________________________________ have been discovered and produced at trial; Error of law occurring in the proceedings, or mistake of fact by the court; or Any ground that would authorize a court to relieve a party from a judgment, such as

________________________ or _____________________________________________.

o An error in the admission or exclusion of evidence, in a ruling or order, or in anything done or omitted by the court or by the parties, is not a ground for granting a new trial, setting aside a verdict, or vacating, modifying, or otherwise disturbing a judgment or order, unless it appears to the court that refusal to take such action would be inconsistent with ________________________________________________________.

Called the “________________________________ error” rule


2. Timing

o A motion for a new trial must be filed and served within ________ days after the entry of the judgment.

o Within ________ days after entry of the judgment, the court on ________________________________________________ may order a new trial for any reason that would justify granting a new trial on ___________________________________.

Court must specify the grounds on which the order is based.

D. Relief from a Judgment, Order, or Proceeding

• On its own initiative or on a party's motion, the court may at any time correct ________________________________________________________ in judgments, orders, or other parts of the record and errors arising from oversight or omission.

• On payment of costs or other conditions deemed just, a court may relieve from a judgment, order, or proceeding a _______________________________ over whom the court had acquired personal jurisdiction but who did not in fact have _______________________ of the pendency of the action.

o The defendant must enter an appearance within ________________ after entry of final judgment, show reasons justifying the relief, and also show that ________________________________________ parties will not be prejudiced by the relief.

• On motion and on ________________________________, the court may relieve a party from a final judgment, order, or proceeding on the following grounds:

o ________________________, inadvertence, surprise, or excusable neglect; o Newly discovered evidence which by due diligence could not have been discovered in time to

move for a new trial; o ________________________, misrepresentation, or misconduct of an adverse party; o The judgment is ________________________; o The judgment has been satisfied, released, or discharged; a prior judgment on which it is based

has been reversed or otherwise vacated; or it is no longer ________________________________________ that the judgment should have a prospective application; or

o Any other reason justifying relief from the operation of the judgment.

If based on any of the first three grounds above, a motion for relief from a final judgment, order, or proceeding must be made within ________________ after entry of the order at issue.

If based on any other ground, the motion must be made within a ________________________________________________.

o A judgment or order may set aside or vacated only by the judge who entered the judgment or order, unless the judge is ________________________ or otherwise unable to act.

Example 40: Suppose that, 14 months after the Circuit Court entered judgment for Phil in the matter of Phil v. Donald, Donald moved for relief from the judgment on


the basis that he had discovered new evidence that could not have been discovered with reasonable diligence in time to move for a new trial. Specifically, the evidence demonstrates that Phil was driving negligently at the time of the collision. Is Donald's motion barred?

________, because it was not brought within one year after entry of the judgment for Phil.

E. Independent Action

In Michigan, a court may entertain an independent action to:

• Relieve a party from a judgment, order, or proceeding; • Grant relief to a defendant who not actually personally ________________________________ of

an action; or • Set aside a judgment for ________________________ on the court.

POST-TRIAL PROCEDURE, PART II

A. Appeals

1. Settling the Record

o When a transcript of the proceedings in the trial court or tribunal cannot be obtained, the trial court or tribunal must settle any controversy and certify a statement of facts as an ________________________, fair, and ________________________________ statement of the proceedings before it.

o Process

The ________________________ must file with the trial court or tribunal a proposed statement of facts in sufficient detail to inform the Court of Appeals of the nature of the controversy and proceedings.

The appellant must then notice the proposed statement for prompt settlement before the trial court or tribunal.

Any amendment or objection to the proposed statement by an appellee must be ________________________________ and filed with the trial court or tribunal before the time set for settlement.

2. Finality for Multiple Claims and Parties

o In general, a court's decision to adjudicate fewer than all the claims, or the rights and liabilities of fewer than all the parties, does not ________________________________ the action as to any claim or party.

The decision is subject to ________________________ before entry of final judgment adjudicating all the claims and the rights and liabilities of all the parties.


o Exception for receivership and similar actions—the court may direct that a decision entered before adjudication of all the claims and the rights and liabilities of all the parties constitutes a ________________________________________ on an express determination that there is no just reason for the ________________________.

This power in federal courts is not limited to receivership and similar actions.

Example 41: Prudence brought suit against Daryl in Michigan Circuit Court, asserting two claims: (1) defamation; and (2) intentional infliction of emotional distress. The Circuit Court granted Daryl's motion for summary disposition as to the defamation claim, but the IIED claim will proceed to trial. Is the Circuit Court authorized to direct entry of a final order as to the defamation claim, thereby allowing Prudence to take an immediate appeal while the IIED is pending below?

________, because Prudence's action does not involve receivership.

3. Leave to Appeal from an Interlocutory Order—under Michigan law, the Court of Appeals may grant leave to appeal from an interlocutory order of the Circuit Court when the application for leave sets forth facts showing how the appellant would suffer _________________________________________________ by awaiting final judgment before taking an appeal.

4. Superintending Control Orders

o In Michigan, the superintending control order has replaced the writs of certiorari, prohibition, and ________________________________ as a court's means of enforcing power over lower courts.

o A party may not file a complaint for superintending control if another adequate ________________________________ is available.

o The order will issue only if the lower court or tribunal failed to perform a ________________________________________ duty.

5. Unpreserved Error

o In Michigan—if a party fails to raise an issue at trial, the Court of Appeals will ordinarily ________________________ to address the issue on appeal.

o Exception—an unpreserved issue will be addressed on appeal in order to prevent a ________________________________________________.

B. Collateral Estoppel

• Like the federal courts, Michigan has abolished the requirement of mutuality of estoppel regarding the application of ________________________________ collateral estoppel.

Example 42: Following a three-bicycle collision involving Pandora, Debra, and Drake, Pandora brought suit against Debra (and only Debra) in Michigan Circuit Court for negligence. The matter proceeded to trial, and the jury was instructed to answer special interrogatories assessing fault for the collision among not only


Pandora and Debra, but Drake as well (even though Drake was not a party). The jury's respective assessment of fault was 60% for Pandora, and 20% each for Debra and Drake. Consequently, Pandora was barred from recovering non-economic damages from Debra. Hoping that she could recover non-economic damages from Drake instead, Pandora brought a new suit against him in Michigan Circuit Court for negligence. Drake moved that the court apply non-mutual collateral estoppel in order to prevent relitigation of the comparative-fault issues that had been resolved in the matter of Pandora v. Debra. Should the court grant the motion?

________, because Drake's assertion of estoppel would be defensive (that is, in defense of a claim brought against him by another) and Pandora had a full and fair opportunity to litigate her own comparative fault in the prior action against Debra.

Editor's Note 8: Note that although the first jury’s finding that Drake is 20% at fault will not be enforceable or admissible against Drake in this action, collateral estoppel will apply the jury’s finding that Pandora was 60% at fault.

• Unlike the federal courts, however, Michigan has retained the requirement of mutuality of estoppel regarding the application of ________________________________ collateral estoppel.

o A non-party to a prior action may not assert collateral estoppel offensively in order to benefit from an issue on which the defendant litigated and lost in the prior action.

Example 43: Suppose that Drake responded to the verdict in the matter of Pandora v. Debra (finding that Pandora was 60% at fault for the collision) by bringing suit against Pandora in Michigan Circuit Court for negligence. Drake moved that the court apply non-mutual collateral estoppel in order to prevent relitigation of the comparative-fault issues that had been resolved in the prior action. Should the court grant the motion?

________. Even though Pandora had a full and fair opportunity to litigate those issues in the prior action, Drake's assertion of estoppel here would be offensive (that is, in support of a claim brought by him against another).

• Finding at issue rendered by an administrative agency

o Collateral estoppel is permitted only when:

The agency's procedures were adjudicatory in nature and provided a right to ________________________; and

The Michigan legislature must have ________________________________ that the determination be final in the absence of an appeal.

TORT REFORM AND THE STATUTE OF LIMITATIONS

A. Tort Reform

• The Michigan legislature has enacted various reforms exclusive to medical malpractice cases.


• In general, a person may not commence an action for medical malpractice against a health professional or health facility unless notice has been provided to the professional or facility at least ________ days before the action is commenced.

o The notice must contain:

The ________________________ basis for the claim; The applicable standard of practice or care; The manner in which that standard was ________________________________ by the

professional or facility; The action that should have been taken to comply with that standard; The manner in which the breach of that standard was the

________________________________________________ of the injury; and The names of all health professionals and health facilities that the claimant is notifying in

relation to the claim.

• Plaintiff must file with the complaint an affidavit of ________________ signed by a health professional who the plaintiff reasonably believes meets the requirements for an ________________________________________________.

o The affidavit must certify that the health professional has reviewed the notice of intent and all ________________________________ records supplied by the plaintiff concerning the allegations contained in the notice.

o The affidavit must also contain:

The applicable standard of practice or care; The health professional's ________________________ that the standard was breached by

the party receiving the notice; The action that should have been taken to comply with that standard; and The manner in which the breach of that standard was the proximate cause of the injury

alleged in the notice.

• Limitations on recovery—limits a medical malpractice plaintiff's recovery for ________________________________________, such as pain, suffering, inconvenience, or physical disfigurement.

o The total damages for non-economic loss recoverable by all plaintiffs against all defendants may not exceed ________________________.

o The applicable maximum is________________________ instead of $280,000, if the plaintiff:

Suffered damage to or permanent loss of a reproductive organ, rendering the plaintiff unable to ________________________________;

Has permanently impaired ________________________________ capacity rendering him or her incapable of making independent, responsible life decisions and permanently incapable of independently performing the activities of normal, daily living; or


Is hemiplegic, paraplegic, or quadriplegic resulting in a total ________________________________ functional loss of one or more limbs caused by injury to the brain or to the spinal cord.

Example 44: Parker brought suit against Dr. Dorothy in Michigan Circuit Court for medical malpractice. Parker permanently lost movement of his lower extremities (along with control of his bowel and bladder) following a disketomy performed by Dr. Dorothy. Parker alleged that, in the course of performing the diskectomy, Dr. Dorothy negligently damaged his spinal chord, resulting in his condition. Assuming that Parker can prove his allegations, which cap would apply?

The ________________________ cap, because he is "paraplegic ... resulting in total permanent functional loss of" his lower extremities "caused by injury to the ... spinal cord."

B. Statutes of Limitations

1. Tolling

Statutes of limitations or repose are tolled:

o At the time the complaint is filed, if the defendant is served with ______________________ within the time set forth in the Michigan court rules; or

o At the time that the court otherwise acquires ______________________________________ jurisdiction over the defendant.

2. Accrual

o Limitations period generally runs from the time that the claim ________________________. o If not specifically covered by a statute: the claim accrues when the wrong upon which the

claim is based ________________________________, regardless of when the damage results.

3. Events Affecting the Applicable Limitations Period

a. Death

If a person dies ________________ or within ________ days after the limitations period has run, the personal representative of the deceased person may commence an action at any time within ________ years after letters of authority are issued, even though the limitations period has run.

• Such an action may not be commenced more than ________ years after the limitations period has run.

b. Disability

If a person entitled to bring an action is under ________ years of age or ________________ at the time that the claim accrues, the person may bring the action within ________ year after the disability has been removed, even though the limitations period has run.


"Insane"—suffers from a mental derangement that prevents the comprehending of ________________________________ that he or she is otherwise bound to know

Disability must have existed at the time the claim accrued. A person ________________________________ tack successive disabilities.

c. Absence

If a defendant is absent from Michigan when a claim against him or her accrues, the limitations period on that claim will begin to run only when he or she ______________ __________________________________.

• This rule will not apply if a means of _________________________________ sufficient to establish a Michigan court's personal jurisdiction over that person was available to the plaintiff.

If a defendant is absent from Michigan only ________________________ a claim against him or her has accrued, any period of absence in excess of ________ months will interrupt the running of the statute of limitations.

• Same limitation applies as above

d. Fraudulent Concealment

If a person who may be liable for a claim fraudulently conceals from the person entitled to bring the claim either:

The ________________________ of the claim; or The ________________________ of a person who may be liable on the claim;

The action may be commenced within ________ years after the person entitled to bring the claim discovers, or should have discovered, the existence of the claim or the identity of the person who may be liable, even though the limitations period has otherwise run.

4. Specific Limitations Periods

a. Malpractice (non-medical)

Action involving a claim based on the malpractice of a member of a _______________ ___________________ profession accrues when that person stops serving the plaintiff as to the matters out of which the claim arises.

The action must be brought within:

• ________ years of the accrual; or • ________ months after the plaintiff discovers, or should have discovered, the existence

of the claim, whichever period is later.

b. Medical malpractice claims

Action accrues on the date of the _______ or _____________ that is the basis of the claim. The action must be brought within:


• ________ years of the accrual of the claim; or • ________ months after the plaintiff discovers, or should have discovered, the existence

of the claim, whichever is later.

The action must not be brought later than ________ years after the date of the alleged act or omission that is the basis of the claim.

• The six-year limitations period does not apply if either:

o The discovery of the existence of the claim was prevented by the _______________ conduct of the person or facility against whom the claim is made; or

o The plaintiff suffered permanent loss of or damage to ________________________ organs resulting in an inability to ________________________________.

• Instead, the action may be commenced within ________ months after the plaintiff discovers, or should have discovered, the existence of the claim.

Example 45: Peggy brought suit against Dr. Dylan in Michigan Circuit Court for medical malpractice. Peggy alleged that, on July 1, 2010, she visited with Dr. Dylan complaining of lower abdominal pain, and that he negligently failed to detect and diagnose her uterine cancer. Peggy did not receive that diagnosis until three years later (on July 1, 2013) from a different physician, who was able to treat Peggy's condition with minor surgery, chemotherapy, and radiation therapy. Peggy filed her complaint against Dr. Dylan on September 1, 2013. Did Peggy comply with the applicable statute of limitations?

________. Peggy's claim against Dr. Dylan accrued on July 1, 2010 (because that was the date of his alleged negligence), and the two-year period would have elapsed on July 1, 2012. However, because she did not discover the existence of her claim until she was actually diagnosed with uterine cancer (on July 1, 2013), she had six months from that discovery date to bring her claim. Her complaint was filed within that time.

Example 46: Same facts as in Example 45 above, except that Peggy did not discover the existence of her claim against Dr. Dylan until June 1, 2016. She then filed her complaint against Dr. Dylan on September 1, 2016. Did Peggy comply with the applicable statute of limitations?

________, because the six-year period would have elapsed on July 1, 2016 (six years after Dr. Dylan's alleged negligence).

Example 47: Same facts as in Example 45 above, except that the treatment of Peggy's uterine cancer required that she undergo a hysterectomy (during which her uterus and ovaries were removed). Did Peggy comply with the applicable statute of limitations?


________. Because she suffered a loss of reproductive organs, the six-year limit would not apply. Instead, she would have until six months after she discovered the existence of her claim. She filed the complaint within that period.

c. Breach of contract for sale of goods

Accrues when the ________________________________ occurs The limitations period is ________ years. By the original agreement, the parties may reduce the limitations period to not less than

________ year, but may not extend it.

d. Breach of contract (other than for sale of goods)

Limitations period is ________ years, except when otherwise provided by statute. An unambiguous provision in the contract providing for a shortened limitations period is to

be enforced as written unless the provision would violate _______ or _________________.

e. Personal injury or property injury

Limitations period depends on the type of case:

• Slander or libel—________ year • False imprisonment, malicious prosecution, battery, and assault—________ years • Other actions to recover damages for injury to person or property, death of a person,

or product liability—________ years • Assault or battery when inflicted upon the victim by (i) a spouse or a former spouse, (ii)

a person with whom she or he has a ________________ or a dating relationship, or (iii) a person with whom she or he resides or formerly resided—________ years

[END OF HANDOUT]

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