Michigan summary disposition: ten grounds, three timing rules, and one that waives itself

Michigan does not use the phrase "summary judgment." Its equivalent is summary disposition under MCR 2.116, and it is not one motion — it is ten different motions sharing a rule number, decided on different records, with different deadlines.

Getting the subrule number right is most of the work. A motion filed under the wrong ground is decided on the wrong record.

The ten grounds

MCR 2.116(C) lists them, and the rule requires you to say which one you are using:

The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(1) The court lacks jurisdiction over the person or property. (2) The process issued in the action was insufficient. (3) The service of process was insufficient. (4) The court lacks jurisdiction of the subject matter. (5) The party asserting the claim lacks the legal capacity to sue. (6) Another action has been initiated between the same parties involving the same claim. (7) Entry of judgment, dismissal of the action, or other relief is appropriate because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action. (8) The opposing party has failed to state a claim on which relief can be granted. (9) The opposing party has failed to state a valid defense to the claim asserted against him or her. (10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

Only (C)(10) is what most states would call summary judgment. (C)(8) is the failure-to-state- a-claim motion other states number 12(b)(6). (C)(7) is the affirmative-defense catch-all, and it is unusually broad — limitations, release, payment, prior judgment, immunity, arbitration agreements and forum-selection clauses all sit in that one subrule.

The record differs by ground, and that is the point

MCR 2.116(G)(5) draws the line:

The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1)-(7) or (10). Only the pleadings may be considered when the motion is based on subrule (C)(8) or (9).

So:

(G)(2) says the same from the other side — evidence "may be submitted by a party to support or oppose the grounds asserted in the motion," except as to a motion based on (C)(8) or (9). And (G)(3) makes evidence mandatory rather than optional in two situations: "when the grounds asserted do not appear on the face of the pleadings," or "when judgment is sought based on subrule (C)(10)."

(G)(6) adds an admissibility filter — material is considered "only to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion."

Three grounds you can waive by saying nothing

MCR 2.116(D) is where cases are quietly lost.

(1) The grounds listed in subrule (C)(1), (2), and (3) must be raised in a party's first motion under this rule or in the party's responsive pleading, whichever is filed first, or they are waived.

(2) The grounds listed in subrule (C)(5), (6), and (7) must be raised in a party's responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party's first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.

(3) The grounds listed in subrule (C)(4) and the ground of governmental immunity may be raised at any time, regardless of whether the motion is filed after the expiration of the period in which to file dispositive motions under a scheduling order entered pursuant to MCR 2.401.

(4) The grounds listed in subrule (C)(8), (9), and (10) may be raised at any time, unless a period in which to file dispositive motions is established under a scheduling order entered pursuant to MCR 2.401. It is within the trial court's discretion to allow a motion filed under this subsection to be considered if the motion is filed after such period.

The word "waived" appears only in (D)(1), and it is doing real work: personal jurisdiction, process and service are gone unless they are in whichever comes first — your first MCR 2.116 motion or your responsive pleading.

The limitations defense lives in (C)(7), which is a (D)(2) ground — it belongs in the responsive pleading unless you move first.

Timing and briefing

A party asserting a claim cannot move immediately. MCR 2.116(B)(2):

A motion under this rule may be filed at any time consistent with subrule (D) and subrule (G)(1), but the hearing on a motion brought by a party asserting a claim shall not take place until at least 28 days after the opposing party was served with the pleading stating the claim.

That is a limit on the hearing, not on filing, and it binds the claimant only.

The briefing sequence is in (G)(1)(a), "unless a different period is set by the court":

(i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and

(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing.

(iii) the moving party or parties may file a reply brief in support of the motion. Reply briefs must be confined to rebuttal of the arguments in the nonmoving party or parties' response brief and must be limited to 5 pages. The reply brief must be filed and served at least 4 days before the hearing.

(iv) no additional or supplemental briefs may be filed without leave of the court.

21 / 7 / 4, and a five-page cap on the reply. Sur-replies require leave.

Opposing a (C)(10) motion

MCR 2.116(G)(4) puts obligations on both sides:

A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.

A movant who does not identify the issues has not complied. A respondent who relies on the complaint has not responded.

If you need discovery first, MCR 2.116(H) is the route, and it is an affidavit requirement: the affidavit must "name these persons and state why their testimony cannot be procured" and "state the nature of the probable testimony of these persons and the reason for the party's belief that these persons would testify to those facts." The court may then deny the motion or allow additional time.

Two outcomes people do not expect

MCR 2.116(I)(2):

If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party.

Michigan lets the court grant judgment against the party that moved, without any cross-motion. That is a real risk in a weak (C)(10) motion.

And (I)(1) is mandatory once the standard is met: "the court shall render judgment without delay."

You may also file more than one motion — (E)(3) allows it, (E)(1) lets you combine grounds in a single motion, and (E)(2) confirms that "No defense or objection is waived by being joined with one or more other defenses or objections." But (F) makes a motion or affidavit filed in bad faith punishable as contempt.

How Michigan compares

A short checklist

1. Pick the subrule number first. It decides what the court may look at.
2. If you are attacking jurisdiction, process or service, raise it in your first motion or responsive pleading — whichever comes first. (D)(1) waives it otherwise.
3. Put limitations, release, payment, prior judgment, immunity and arbitration in (C)(7), and get it into the responsive pleading unless you are moving first.
4. For (C)(8) or (9), do not attach evidence — only the pleadings will be considered.
5. For (C)(10), evidence is required, and the motion must specifically identify the issues said to be undisputed.
6. Calendar 21 / 7 / 4 backwards from the hearing date, and keep the reply to five pages.
7. If you are the claimant, remember the hearing cannot happen until 28 days after service of the pleading stating the claim.
8. If you need discovery, file the (H) affidavit naming the witnesses and describing their probable testimony. A request in the brief is not that.
9. Do not file a thin (C)(10) motion. Under (I)(2) the court can enter judgment against you instead.

Where these rules live

• MCR 2.116 — Summary Disposition
• MCR 2.118 — Amended and Supplemental Pleadings
• MCR 2.119 — Motion Practice
• MCR 2.401 — Pretrial Procedures; Conferences; Scheduling Orders

This page explains what the rules say. It isn't legal advice, and what counts as a genuine issue of material fact under MCR 2.116(C)(10) is developed in case law this site doesn't cover.