Dismissal of the case may occur in the following circumstances:
•Failure to serve the defendant before the expiration of the summons, MCR 2.102(E)(1) and MCR 2.504(E);
•Lack of progress based on failure to take action for more than 91 days “unless the parties show that progress is being made or that the lack of progress is not attributable to the party seeking affirmative relief,” MCR 2.502(A)(1);
•Notice of dismissal filed before the adverse party serves an answer or a motion for summary disposition, or by stipulation of the parties, MCR 2.504(A)(1);
•Failure to comply with the court rules or a court order, MCR 2.504(B)(1);The plaintiff has shown no right to relief at the close of his or her proofs in a bench trial, MCR 2.504(B)(2); or
•Failure to timely file a motion for substitution “within 91 days after filing and service of a statement of the fact of the death [of a party],” “unless the party seeking substitution shows that there would be no prejudice to any other party from allowing later substitution.” MCR 2.202(A)(1)(b).
B.Dismissal for Failure to Serve
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) and MCR 2.504(E). See also Hyslop v Wojjusik, 252 Mich App 500, 510 (2002).
The court may set aside the dismissal on the stipulation of the parties or a motion as provided by MCR 2.102(F). 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). In addition, the moving party must establish that service of process was in fact made or the defendant submitted to the court’s jurisdiction, MCR 2.102(F)(1), and that “proof of service of process was filed or the failure to file [was] excused for good cause shown.” MCR 2.102(F)(2).1
C.Dismissal for Lack of Progress
On a party’s motion or sua sponte, a case may be dismissed for lack of progress if it appears that no steps have been taken or no proceedings have occurred within 91 days “unless the parties show that progress is being made or that the lack of progress is not attributable to the party seeking affirmative relief.” MCR 2.502(A)(1). However, a notice of proposed dismissal may not be sent if:
•a scheduling order has been entered under MCR 2.401(B)(2), and the time for completing the scheduled events has not expired, or
•the case is set for a conference, an alternative dispute resolution process, a hearing, or trial. MCR 2.502(A)(2)(a)-(b).
If no showing of progress is made, the court may direct the clerk to dismiss the action for lack of progress. MCR 2.502(B)(1). The dismissal is without prejudice, unless the court orders otherwise. Id.
An action dismissed for lack of progress may be reinstated on motion for good cause. MCR 2.502(C). In determining whether good cause exists, a court may find one or more of the following factors relevant:
•whether the dismissal was technically or procedurally inappropriate;
•whether the movant was diligent during the pendency of the original action;
•whether the failure to make progress was justified;
•whether the movant was diligent in attempting to settle or promptly reinstate the case; and
•whether there is possible prejudice to the nonmovant if the action were to be reinstated. Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 142 (2000).
Note: This list is not exhaustive, and it does not preclude the analysis of any other relevant factors that may exist in a particular case. Wickings, 244 Mich App at 142 n 28.
“On reinstating an action, the court shall enter orders to facilitate the prompt and just disposition of the action.” MCR 2.502(C).
1.Without Court Order
In most cases, the plaintiff may dismiss an action without a court order and upon payment of costs by (1) filing a notice of dismissal before an opposing party serves an answer or a motion under MCR 2.116, or (2) filing a stipulation signed by every party. MCR 2.504(A)(1). Additional provisions exist in MCR 2.420 (settlements and judgments for minors and legally incapacitated individuals) and MCR 3.501(B) (class actions). The dismissal is without prejudice unless otherwise stated in the notice or stipulation. MCR 2.504(A)(1). Also, “a dismissal under [MCR 2.504(A)(1)(a)] operates as an adjudication on the merits when filed by a plaintiff who has previously dismissed an action in any court based on or including the same claim.” MCR 2.504(A)(1). A dismissal with prejudice is res judicata because it is considered an adjudication on the merits.2 See Washington v Sinai Hosp of Greater Detroit, 478 Mich 412, 417 (2007).
2.With Court Order
A court order is required if the plaintiff seeks to dismiss the action after service of a responsive pleading or motion. MCR 2.504(A)(2). If the defendant files a counterclaim before being served with a motion to dismiss, the court may not dismiss the action unless the counterclaim can remain pending for independent adjudication. MCR 2.504(A)(2)(a). A dismissal under MCR 2.504(A)(2) is without prejudice unless the order specifies otherwise. MCR 2.504(A)(2)(b).
“A motion for voluntary dismissal should not be granted when the defendant would be legally prejudiced by the decision.” Newman v Real Time Resolutions, Inc, 342 Mich App 405, 415 (2022). “An order of dismissal without prejudice should place the defendants in no worse of a position than they were in before the case began.” Id. at 415. If a plaintiff moves for voluntary dismissal but does not have “a valid claim they could bring after dismissal,” dismissal with prejudice is warranted. Id. at 415 (noting that “[i]f the trial would have dismissed this matter without prejudice, defendants would be legally prejudiced by potentially having to defend another lawsuit filed by plaintiff over this same issue, even though he legally cannot succeed”).
E.Involuntary Dismissal as a Sanction
When a party fails to comply with the court rules or a court order, MCR 2.504(B)(1) authorizes the court, on its own initiative or on the opposing party’s motion, to enter a default judgment against the noncomplying party or to dismiss the noncomplying party’s claim or action.
Reasons for dismissing a case as a sanction include:
•Failure to permit discovery. MCR 2.313(B)(2)(c).
•Failure to appear at a scheduled conference or for lacking adequate information or authority to effectively participate in the conference. MCR 2.401(G).
•Failure to make progress on the case. MCR 2.502(A)(1).
•Failure to pay previously assessed fees, including attorney fees. MCR 2.504(D); Sirrey v Danou, 212 Mich App 159, 160-161 (1995).
Dismissal is a drastic sanction. Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501, 506 (1995). “Severe sanctions such as default or dismissal are predicated on a flagrant or wonton refusal to facilitate discovery that typically involves repeated violations of a court order.” Swain v Morse, 332 Mich App 510, 518 (2020). In deciding whether to dismiss the case, the court must “evaluate all available options on the record and conclude that the sanction of dismissal is just and proper.” Vicencio, 211 Mich App at 506. In Dean v Tucker, 182 Mich App 27, 32-33 (1990), the Court referred to a nonexhaustive list of factors to consider when determining whether dismissal is an appropriate sanction:
“(1) whether the violation was wilful or accidental;
(2) the party’s history of refusing to comply with discovery requests (or refusal to disclose witnesses);
(3) the prejudice to the defendant;
(4) actual notice to the defendant of the witness and the length of time prior to trial that the defendant received such actual notice;
(5) whether there exists a history of plaintiff’s engaging in deliberate delay;
(6) the degree of compliance by the plaintiff with other provisions of the court’s order;
(7) an attempt by the plaintiff to timely cure the defect; and
(8) whether a lesser sanction would better serve the interests of justice.”
A trial court has the authority to impose appropriate sanctions, including dismissal, in order to “contain and prevent abuses so as to ensure the orderly operation of justice.” Maldonado v Ford Motor Co, 476 Mich 372, 375 (2006). In Maldonado, the plaintiff and her counsel ignored a trial court’s order suppressing “unduly prejudicial” evidence concerning the defendant’s expunged criminal record and “engaged in a concerted and wide-ranging campaign . . . to publicize the details of the inadmissible evidence through the mass media and other available means.” Id. at 392. The trial court ultimately sanctioned the misconduct by dismissing the plaintiff’s lawsuit after having expressly warned the plaintiff and her counsel that violation of the court’s order would result in dismissal. Id. at 394-395. “The trial court has a gate-keeping obligation, when such misconduct occurs, to impose sanctions that will not only deter the misconduct but also serve as a deterrent to other litigants.” Id. at 392.
The “trial court abused its discretion by dismissing [plaintiff’s] complaint against [defendant] as a discovery violation” upon the trial court’s finding “that plaintiff ‘lied under oath’ at her deposition.” Swain, 332 Mich App at 517, 518. “Maldonado concerned serious misconduct that went to the ability of the court to assure a fair trial.” Id. at 523. “In contrast, untruthful deposition testimony does not threaten the integrity of the judicial system. A witness can be impeached at trial, and the jury can consider whether a witness was lying in making its credibility determination.” Id. at 523-524. “[R]ather than protecting the judicial process, permitting judges to dismiss cases for false deposition testimony would be a fundamental change and could itself undermine the integrity of the judicial system that has always relied on the fact-finder for credibility determinations.” Id. at 524, 527 (“the fact that there is some ambiguity and equivocation in plaintiff’s answers counsels against dismissal, and it also demonstrates why courts should be hesitant to impose sanctions based upon a finding that the deponent intentionally made false statements”).
A trial court’s “findings that plaintiffs deliberately delayed progress when progress was solely under their control strongly supported dismissal with prejudice.” Tolas Oil & Gas Exploration Co v Bach Servs & Mfg LLC, ___ Mich App ___, ___ (2023). A trial court’s “finding that the delay was part of a pattern of gamesmanship also supported dismissal with prejudice.” Id. at ___. In Tolas, the Court of Appeals concluded that the trial court’s findings and determinations were sufficient to allow the trial court to dismiss the case under its inherent authority to punish misconduct.” Id. at ___ (holding “[o]n this record, we cannot conclude that the trial court abused its discretion when it dismissed the case with prejudice”).
An involuntary dismissal due to the plaintiff’s failure to comply with the court rules or any court order will operate as an adjudication on the merits unless:
(1) the order of dismissal provides otherwise,
(2) the case was dismissed for lack of jurisdiction, or
(3) the case was dismissed for failure to join a party under MCR 2.205. MCR 2.504(B)(3).
See also Washington v Sinai Hosp of Greater Detroit, 478 Mich 412, 414 (2007) (holding that “[u]nder the plain language of MCR 2.504(B)(3), the dismissal of the . . . untimely complaint [pursuant to MCR 2.116(C)(7)] was an adjudication on the merits”); Dawoud v State Farm Mut Auto Ins Co, 317 Mich App 517, 523-524 (2016) (holding that MCR 2.504(B)(3) governed the effect of a dismissal under MCR 2.313(B)(2)(c) for failure to provide or permit discovery; because the court did not provide otherwise in the dismissal order, dismissal of the claims constituted an adjudication on the merits).
F.Failure to Timely File a Motion for Substitution
“Unless a motion for substitution is made within 91 days after filing and service of a statement of the fact of the death, the action must be dismissed as to the deceased party, unless the party seeking substitution shows that there would be no prejudice to any other party from allowing later substitution.” MCR 2.202(A)(1)(b).
MCR 2.202(A)(1)(b) “requires dismissal unless there is a showing of no prejudice.” Bradley v Progressive Marathon Ins Co, ___ Mich App ___, ___ (2022). However, “MCR 2.202(A)(1)(b) does not require that the trial court refuse to dismiss the case if the plaintiff has showed no prejudice.” Bradley, ___ Mich App at ___. “Instead, when the plaintiff has showed no prejudice, the trial court retains the discretion to either dismiss or retain the case.” Id. at ___.
G.Involuntary Dismissal in a Bench Trial
At the close of the plaintiff’s evidence during an action, claim, or hearing without a jury, the court, on its own initiative, may dismiss the case, or the defendant may move for dismissal on the ground that the plaintiff has no right to relief based on the facts and law presented. MCR 2.504(B)(2). “The court may then determine the facts and render judgment against the plaintiff, or may decline to render judgment until the close of all the evidence.” MCR 2.504(B)(2). See also In re ASF, 311 Mich App 420, 427 (2015) (“[u]nder [MCR 2.504(B)(2)], ‘a motion for involuntary dismissal calls upon the trial judge to exercise his function as trier of fact, weigh the evidence, pass upon the credibility of witnesses and select between conflicting inferences’”), quoting Marderosian v Stroh Brewery Co, 123 Mich App 719, 724 (1983).
The standard on this motion is different than that for a directed verdict. In determining whether to dismiss an action under MCR 2.504(B)(2), the trial court is not “required to view the evidence in the light most favorable to [the defendant], to resolve all conflicts of evidence in his [or her] favor, or to determine whether there [is] a genuine issue of material fact.” Williamstown Twp v Hudson, 311 Mich App 276, 289 (2015).
If the court grants a motion for involuntary dismissal, it must make the required findings under MCR 2.517. MCR 2.504(B)(2).
Where the plaintiff commences an action involving the same claim against the same defendant in a previously dismissed action, the court has the discretion to order the plaintiff to pay costs from that prior action and to “stay proceedings until the plaintiff has complied with the order.” MCR 2.504(D).
Questions of law pertinent to an involuntary dismissal motion based on MCR 2.504(B)(2) are reviewed de novo. Samuel D Begola Servs, Inc v Wild Bros, 210 Mich App 636, 639 (1995). The trial court’s factual findings are reviewed for clear error. Williamstown Twp v Hudson, 311 Mich App 276, 289 (2015). “A trial court’s findings are considered clearly erroneous where [the reviewing court is] left with a definite and firm conviction that a mistake has been made.” Id. (quotations and citation omitted).
The decision whether to grant the plaintiff’s motion for voluntary dismissal is reviewed for an abuse of discretion. McKelvie v Mount Clemens, 193 Mich App 81, 86 (1992).
When dismissal is used as a sanction, it is reviewed for an abuse of discretion. Donkers v Kovach, 277 Mich App 366, 368 (2007).
A trial court’s decision whether to reinstate an action is reviewed for an abuse of discretion. Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 138 (2000).
Committee Tip:
There are specific provisions in the court rules addressing reinstatement of a case when the dismissal is for failure to serve a party or for lack of progress. If the dismissal is without prejudice, at a minimum, the case can be refiled. If the dismissal is with prejudice, relief may be possible under MCR 2.603(D) (Default and Default Judgment) or MCR 2.612 (Relief From Judgment or Order).3