3.7Amendment of Pleadings¹

A.Amendments of Right²

Under MCL 600.2301, the court is authorized “to amend any process, pleading or proceeding.”³ The practice of amendment is governed by court rule. A party may amend a pleading once without the consent of an opponent and without the permission of the court if the amendment is made within 14 days of being served with a responsive pleading. MCR 2.118(A)(1). If the pleading does not require a response, it must be amended within 14 days after serving it. Id.

B.Amendments by Consent and by Leave of Court

A pleading may be amended at any time with the written consent of the opposing parties. MCR 2.118(A)(2).

A pleading may also be amended by leave of the court. Leave to amend must be freely given when justice so requires. MCR 2.118(A)(2). In Fyke & Sons v Gunter Co, 390 Mich 649 (1973), the Michigan Supreme Court discussed the “freely given” language in former court rule, GCR 1963, 118.1, which is identical to MCR 2.118(A)(2). The Court stated that the rule is “‘designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result.’” Fyke, 290 Mich at 656, quoting United States v Hougham, 364 US 310, 316 (1960).

Generally, a motion to amend should be granted. Weymers v Khera, 454 Mich 639, 658-660 (1997). The motion should be denied only for particularized reasons, such as (1) undue delay if the delay was in bad faith or the opposing party suffered actual prejudice, (2) bad faith, (3) dilatory motive, (4) repeated failure to cure deficiencies, (5) undue prejudice, or (6) futility. Id. at 658-660, citing Fyke, 390 Mich at 656, 663-664. “The fact that an amended complaint would present issues at odds with [a] trial court’s decision does not appear to be an accepted particularized reason” for denying a motion to amend a complaint under MCR 2.118(A). Kincaid v Flint, 311 Mich App 76, 95 (2015) (citations omitted).

When leave to amend is denied, the court must specify the reasons for the ruling on the record. Franchino v Franchino, 263 Mich App 172, 190 (2004). If the court fails to specify its reasons for denying a motion to amend, reversal is required unless amendment would be futile. Kincaid, 311 Mich App at 95. An amendment that is legally insufficient on its face is futile regardless of the claim’s substantive merits. Hakari v Ski Brule, Inc, 230 Mich App 352, 355 (1998).

“Delay, alone, does not warrant denial of a motion to amend.” Weymers, 454 Mich at 659, citing Fyke, 390 Mich at 663-664. See also Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 321 (1993), where the Court stated that “there must always be some delay associated with an amendment of a pleading.” Leave to amend should be granted unless the delay occurred as a result of bad faith or created actual prejudice. Weymers, 454 Mich at 659, citing Fyke, 390 Mich at 663-664. The proper remedy for inexcusable delay is to impose sanctions under MCR 2.118(A)(3). Stanke, 200 Mich App at 321.

“‘Prejudice’ refers to matter[s] which would prevent a party from having a fair trial, or matter[s] which he [or she] could not properly contest, e.g. when surprised. It does not refer to the effect on the result of the trial otherwise.” Fyke, 390 Mich at 657. See also Franchino, 263 Mich App at 191-192 (where the plaintiff was denied his third application to amend when its contents would have unjustifiably surprised the defendant so close to trial); Weymers, 454 Mich at 659.

C.Amendments Must Be Submitted in Writing

Proposed amendments to a pleading must be submitted in writing. MCR 2.118(A)(4); Anton, Sowerby & Assoc, Inc v Mr. C’s Lake Orion, LLC, 309 Mich App 535, 551 (2015).

The trial court did not abuse its discretion by denying the plaintiff’s motion to amend its complaint where the plaintiff sought to add the receiver as a party defendant after summary disposition was granted pursuant to MCR 2.116(C)(10) because the plaintiff, in its motion to amend, only “cursorily discussed the contents of its claim against the receiver[.]” Anton, Sowerby & Assoc, Inc., 309 Mich App at 551 (holding that “[i]f a plaintiff does not present its proposed amended complaint to the court, there is no way to determine whether amendment is justified,” and finding no abuse of discretion “[a]bsent the submission of the proposed complaint in writing or a clear statement of plaintiff’s claim”).

D.Amendment After Motion for Summary Disposition Filed

Generally, the process for amending a pleading is governed by MCR 2.118.⁴ However, if a motion is based on MCR 2.116(C)(8), MCR 2.116(C)(9), or MCR 2.116(C)(10), the court must give the parties an opportunity to amend their pleadings, unless evidence before the court shows that an amendment would be unjustified. MCR 2.116(I)(5). “When a party makes an oral request to amend the complaint under MCR 2.116(I)(5), that party must also offer a proposed amendment in writing.” Grayling Twp v Berry, 329 Mich App 133, 151-152 (2019). “If a plaintiff fails to do so, the plaintiff has failed to comply with [the writing requirement in MCR 2.118(A)(4)] and the trial court does not abuse its discretion in denying the request to amend.” Grayling Twp, 329 Mich App at 152. See Section 3.7(C) for more information on submitting amendments in writing.

Where a party does not seek leave of the court or obtain the opposing party’s consent to amend his or her pleading, “MCR 2.116(I)(5) [does] not require the court to sua sponte offer [the party] an opportunity to amend.” Kloian v Schwartz, 272 Mich App 232, 242 (2006) (finding no plain error in these circumstances).⁵

E.Amendments to Conform to Evidence

MCR 2.118(C)(1) “is liberal and permissive[.] . . . The only requirement is that the party seeking amendment move to have the court amend the pleadings[.]” Zdrojewski v Murphy, 254 Mich App 50, 61 (2002). “When issues not raised by the pleadings are tried by express or implied consent of the parties, they are treated as if they had been raised by the pleadings.” MCR 2.118(C)(1).

Where evidence is objected to at trial because it concerns issues not raised in the pleadings, an amendment of the pleadings to conform to the offered proof may be permitted under MCR 2.118(C)(2). However, an amendment must not be allowed “unless the party seeking to amend satisfies the court that the amendment and the admission of the evidence would not prejudice the objecting party in maintaining his or her action or defense on the merits.” MCR 2.118(C)(2). See also Dacon v Transue, 441 Mich 315, 328 (1992). “The court may grant an adjournment to enable the objecting party to meet the evidence.” MCR 2.118(C)(2). An adjournment is not required under MCR 2.118(C)(2).

F.The “Relation-Back” Rule

Generally, amendments to pleadings relate back to the date of the original pleading “if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading.” MCR 2.118(D).⁶ “MCR 2.118(D) does not place limits on the nature of the amendment. It provides for all types of amendments provided that the substance relates to the same conduct as the original pleading.” Legion-London v Surgical Institute of Mich Ambulatory Surgery Ctr, LLC, 331 Mich App 364, 369 (2020).

“Under the relation-back doctrine, an amended pleading can introduce new facts, new theories, or even a different cause of action as long as the amendment arises from the same transactional setting that was set forth in the original pleading.” Green v Pontiac Pub Library, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “The principle to be gleaned is the necessity for a broadly focused inquiry regarding whether the allegations in the original and amended pleadings stem from the same general conduct, transaction, or occurrence.” Id. at ___ (cleaned up). “Thus, if the cause of action presented in a proposed amendment arises from the same transactional setting as the original complaint, it relates back to the original complaint, regardless whether the proposed amendment introduces new facts, a new theory, or a different cause of action.” Id. at ___ (quotation marks and citation omitted).

“The relation-back doctrine was developed by the courts to avoid preclusion by a statute of limitations of an issue raised in an amended pleading by relating the amended claim or defense with the date of the original pleading.” Id. at ___. The relation-back rule does not apply to a contractual limitations period. Ulrich v Farm Bureau Ins, 288 Mich App 310, 322 (2010) (concluding that a claim for uninsured motorist benefits is governed by the insurance policy, a contract; thus, “to apply the relation-back doctrine in this context would be inconsistent with the principle of applying private contracts in accordance with their terms as stated in unambiguous language”).

The relation-back doctrine does not apply to an amendment that adds a party to the complaint. Miller v Chapman Contracting, 477 Mich 102, 107 (2007). “MCR 2.118(D) specifies that an amendment relates back to the date of the original pleading only if it ‘adds a claim or a defense’; it does not specify that an amendment to add a new party also relates back to the date of the original pleading.” Miller, 477 Mich at 107. However, the doctrine may apply to a closely connected new party where no one is detrimentally misled. See Arnold v Schecter, 58 Mich App 680, 683-684 (1975) (where the plaintiff misnamed the defendant as corporate officers rather than the actual corporation in her complaint and (1) served the proper representative of the corporation at the corporation’s legal address, (2) the officers and corporation were in the same business and represented by the same law firm, and (3) the officers were informed of the fact that the plaintiff intended to sue the corporation, the trial court improperly denied the plaintiff’s request to amend). See also Estate of Tice v Tice, 288 Mich App 665, 670-671 (2010), where the Court of Appeals concluded that the relation-back doctrine applies to an amended complaint where “a plaintiff has brought an action in the wrong capacity . . . if the original plaintiff had an interest in the subject matter of the controversy.” In Estate of Tice, the original plaintiff was the decedent’s heir who filed a complaint in his own name and subsequently amended the complaint so that the named plaintiff was the decedent’s estate. Id. at 667. The Court concluded that “the estate should have been allowed to take advantage of the original filing because [the original plaintiff], as [the decedent’s] heir, had an interest in the subject matter of the controversy.” Id. at 671.

G.Response to Amendments

If a party is served with a proper amended pleading of a type requiring a responsive pleading, the party has two choices: (1) serve and file a pleading in response to the amended pleading; or (2) serve and file a notice that the pleading filed in response to the pre-amendment pleading will stand as a response to the amended pleading. MCR 2.118(B).

H.Standard of Review

A trial court’s decision whether to allow an amendment to a pleading is reviewed for an abuse of discretion. Ormsby v Capital Welding, Inc, 471 Mich 45, 53 (2004).