The clerk issues a summons when a complaint is filed. MCR 2.102(A). The summons must be served as provided in MCR 2.103 and MCR 2.105. MCR 2.102(A). The form of the summons is prescribed in MCR 2.102(B). Generally, the summons expires 91 days after the date it is issued. MCR 2.102(D). However, that timeframe may be extended under certain circumstances. See Section 3.3(C) for more information.
“A duplicate summons may be issued from time to time and is as valid as the original summons.” MCR 2.102(A). “Duplicate summonses issued under [MCR 2.102(A)] do not extend the life of the original summons.” MCR 2.102(D).
A request to issue a second summons must be made before the original summons expires; similarly, the court’s order granting a second summons must be entered before the original summons expires. See MCR 2.102(D); Moriarity v Shields, 260 Mich App 566, 575 (2004) (holding that a clerk’s issuance of the second summons after the expiration of the original summons was still valid where the court order granting the second summons was entered within the effective period of the original summons).
Upon “a showing of due diligence by the plaintiff in attempting to serve the original summons,” the court may “order a second summons to issue for a definite period not exceeding 1 year from the date the summons is issued.” MCR 2.102(D). “[D]ue diligence under MCR 2.102(D) means diligent efforts in trying to serve process, not diligence in matters logically preceding the decision to serve process.” Bush v Beemer, 224 Mich App 457, 464 (1997) (rejecting the plaintiff’s claim that “diligent efforts to determine whether a case has merit constitutes good cause for delayed service” because this determination “should precede the filing of the complaint”). Regarding efforts to try to serve process, “due diligence requires efforts that are more than a mere gesture.” Ickes v Korte, 331 Mich App 436, 443 (2020) (quotation marks and citation omitted). “[D]ue diligence means undertaking reasonable, good-faith measures under the circumstances, not necessarily everything possible.” Id. n 3 (due diligence “does not require the commission of acts that are illegal, professionally unethical, or otherwise impermissible under any applicable rules or regulations”). The trial court did not abuse its discretion in determining that the plaintiff failed to demonstrate due diligence where the record showed that the “plaintiff made no effort to serve defendant until about three weeks before the original summons was set to expire,” the plaintiff “did not avail himself of the multiple methods reasonably available to him to locate defendant,” and “an interrogatory answer in [simultaneous] litigation contained defendant’s current address.” Id. at 443.
If an extension (up to one year) is granted for the second summons, it “expires at the end of the extended period.” MCR 2.102(D). The issuance of a third summons is not permitted under MCR 2.102(D). Hyslop v Wojjusik, 252 Mich App 500, 506-507 (2002).
Committee Tip:
Where the motion for a second summons requests an unreasonable amount of time within which to complete service, and the request seems unnecessary or designed to protract the litigation, the court may set a shorter time for service.
Service of a valid summons is a necessary part of service of process. Holliday v Townley, 189 Mich App 424, 425-426 (1991). If a defendant is not served before the expiration of the summons, the action is deemed dismissed without prejudice as to that defendant, unless the defendant has submitted to the court’s jurisdiction. MCR 2.102(E)(1).1 If the defendant was added after the first complaint was filed, time begins to run from the date of the first pleading naming that defendant as a party. Id. The clerk is responsible for entering the order dismissing the action and for providing notice of the entry as provided in MCR 2.107; failure to enter the order or provide proper notice “does not continue an action deemed dismissed” or “affect the dismissal.” MCR 2.102(E)(2)-(3).
The court may set aside the dismissal based on the stipulation of the parties or on a motion as provided by MCR 2.102(F). If setting aside based on a motion, the following conditions must be met: The motion must be filed within 28 days after notice of the order of dismissal was given, or if notice was not given, promptly upon learning of the dismissal, MCR 2.102(F)(3); the moving party must establish that proof of service was in fact made within the time provided in MCR 2.102(D) or that the defendant submitted to the court’s jurisdiction, MCR 2.102(F)(1); and the moving party must establish that “proof of service of process was filed or the failure to file is excused for good cause shown[.]” MCR 2.102(F)(2).2