Compulsory Joinder. A party stating a claim against an opposing party in a pleading “must join every claim that the pleader has against that opposing party at the time of serving the pleading, if it arises out of the transaction or occurrence that is the subject matter of the action and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.” MCR 2.203(A).
Permissive Joinder. A party may join any other claims that it has against an opposing party. MCR 2.203(B). Anyone who is or may be interested in the subject matter of the action, but whose names cannot be established, may be joined as parties and should be described as:
“(a) unknown claimants;
(b) unknown owners; or
(c) unknown heirs, devisees, or assignees of a deceased person who may have been interested in the subject matter of the action.” MCR 2.201(D)(1).
If it cannot be determined, upon diligent inquiry, (1) whether a person who is or may be interested in the subject matter of the action is alive or dead, (2) how the person would have disposed of his or her interest, or (3) where the person resides if alive, then “the person and everyone claiming under him or her may be made parties by naming the person and adding the words ‘or [his or her] unknown heirs, devisees, or assignees.’” MCR 2.201(D)(1).
Necessary Joinder. A party must join “persons having such interests in the subject matter of an action that their presence in the action is essential to permit the court to render complete relief[.]” MCR 2.205(A). The court is required to summon such parties who are subject to the court’s jurisdiction into the action if they have not been joined. MCR 2.205(B). If the court cannot obtain jurisdiction, it may still proceed as provided by MCR 2.205(B).
Permissive Joinder. A person may join or be joined as a co-party if the joiner asserts a right (or, in the case of a defendant, has a right asserted against him or her) to joint or several relief or relief arising out of the same transaction or transactions and all parties share a common question of law or fact, or “if their presence in the action will promote the convenient administration of justice[.]” MCR 2.206(A)(1)-(2).
The court has the authority to add or drop parties at any time, on just terms. MCR 2.207.
Joining Parties to a Counterclaim or Cross-Claim. “Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim, subject to MCR 2.205 and [MCR 2.206].” MCR 2.203(G)(1). “On the filing of a counterclaim or cross-claim adding new parties, the court clerk shall issue a summons for each new party in the same manner as on the filing of a complaint, as provided in MCR 2.102(A)-(C). Unless the court orders otherwise, the summons is valid for 21 days after the court issues it.” MCR 2.203(G)(2).
In actions “seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under [MCL 600.2957] by the trier of fact and, subject to [MCL 600.6304], in direct proportion to the person’s percentage of fault.” MCL 600.2957(1). “In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.” Id.
In a personal injury, property damage, or wrongful death action, the trier of fact may not assess the fault of a nonparty unless notice has been given as provided in MCR 2.112(K)(3). MCR 2.112(K)(2). See also MCL 600.2957. “[A] defendant’s failure to give the notice required under [MCR 2.112(K)] amounts to a procedural waiver of the right to have a nonparty assigned fault as proved under MCL 600.6304 and MCL 600.2957.” Taylor v Mich Petroleum Technologies, Inc, 307 Mich App 189, 199 (2014). Further, the identification of an alleged nonparty at fault within the notice of affirmative defenses in a defendant’s answer does not satisfy the requirements of MCR 2.112(K); rather, affirmative defenses and a notice of nonparty at fault “must be separately stated under a distinct heading, if not in a separate document.” Taylor, 307 Mich App at 202 (noting that, “even if [the defendant] could properly give notice of nonparty at fault along with its notice of affirmative defenses,” its notice was deficient where it “did not identify [the nonparty] as a nonparty at fault, did not cite MCR 2.112(K), and did not otherwise state that [the defendant] was asserting its right to have the finder of fact allocate fault to [the nonparty,]” and concluding that “because proper notice . . . is a prerequisite to the application of MCL 600.2957(2), the trial court could not apply that provision to save [the plaintiffs’] otherwise untimely claims against [the nonparty]”).
2.Response to Notice of Nonparty Fault
Once a party has been served with notice, the served party “may file an amended pleading stating a claim or claims against the nonparty within 91 days of service of the first notice identifying that nonparty.” MCR 2.112(K)(4). See also MCL 600.2957(2), which adds, “[u]pon motion of a party within 91 days after identification of a nonparty, the court shall grant leave to the moving party to file and serve an amended pleading alleging 1 or more causes of action against that nonparty. A cause of action added under this subsection is not barred by a period of limitation unless the cause of action would have been barred by a period of limitation at the time of the filing of the original action.”
The Court of Appeals concluded that no conflict exists between MCL 600.2957(2) and MCR 2.112(K) in regard to the period of limitations and that the statute of limitations is extended to nonparties added pursuant to the statute. Bint v Doe, 274 Mich App 232, 234-235 (2007) (noting that “MCR 2.112(K) contains no language regarding periods of limitations”). “MCL 600.2957(2) and MCR 2.112(K) do not irreconcilably conflict” because “the court rule addresses the conduct of the parties, whereas the statute is directed at the conduct of the court.” Stenzel v Best Buy Co, Inc, 503 Mich 199, 202, 203 (2019) (quotation marks, alteration, and citation omitted). “As a result, a plaintiff may elect to amend the complaint without filing a motion for leave to amend. If the plaintiff so elects the court shall grant the amendment. Alternatively, if a plaintiff wishes to file a motion to add a nonparty, the plaintiff is permitted to do so under MCL 600.2957(2).” Stenzel, 503 Mich at 203 (quotation marks, alterations, and citations omitted). The Michigan Supreme Court “promulgated MCR 2.112(K)(4) to implement MCL 600.2957, not to supplant it.” Stenzel, 503 Mich at 203 (quotation marks and citation omitted). Therefore, “a party may amend a pleading upon receipt of notice of nonparty fault pursuant to MCR 2.112(K) without filing a motion for leave to amend, and the amended pleading relates back to the original action pursuant to MCL 600.2957(2).” Stenzel, 503 Mich at 202.
If a nonparty is found to be at fault, the nonparty is not subject to liability in that action, and the determination of fault may not be introduced as evidence of liability in any subsequent action. MCL 600.2957(3); Rinke v Potrzebowski, 254 Mich App 411, 415 (2002).
MCL 600.2957(2) “envisions application of the relation-back rule only in a single lawsuit.” St Clair v XPO Logistics Inc, ___ Mich App ___, ___ (2022). “The second sentence of MCL 600.2957(2) dictates that ‘any amendment of a pleading to add a cause of action against an identified nonparty at fault relates back to the date of the filing of the original action for purposes of assessing whether the applicable period of limitations has expired.’” St Clair, ___ Mich App at ___ (noting “plaintiff’s argument that MCL 600.2957(2) applies between separate lawsuits is not supported by the text of the statute”). In St Clair, the plaintiff initially brought suit in federal court within the three-year statute of limitations for negligence actions, and defendant was identified as a nonparty at fault in that action. Id. at ___. However, the federal suit was dismissed for lack of jurisdiction, and plaintiff's subsequent state court suit fell outside of the limitations period. Id. at ___. The Court of Appeals held that “the relation-back provision of MCL 600.2957(2) is not applicable between separate lawsuits such that it renders plaintiff’s state-court complaint against [defendant] timely.” St Clair, ___ Mich App at ___. Accordingly, “the circuit court properly construed the relation-back provision as applying to a single suit” and “did not err by dismissing it under MCR 2.116(C)(7)” because plaintiff’s complaint was untimely. St Clair, ___ Mich App at ___.
A trial court’s decision regarding joinder is reviewed for an abuse of discretion. Mason Co v Dep’t of Community Health, 293 Mich App 462, 489 (2011).