Motion for Summary Disposition
(Defendant's Failure to State Valid Defense) (MI)

Summary

This template is a plaintiff's motion for summary disposition in a Michigan civil action, based on the defendant's failure to state a valid defense to the claim asserted against defendant in plaintiff's complaint. This template includes practical guidance and drafting notes. A motion for summary disposition based on the failure to state a valid defense tests the legal sufficiency of the pleaded defense. The motion is tested by reference to the pleadings alone, See MCR 2.116(C)(9), (G)(5). For purposes of determining the motion, all well-pleaded allegations accepted as true. The proper test for such a motion is whether defendant's defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiff's right to recovery. Hanon v. Barber, 99 Mich. App. 851, 854–855, 298 N.W.2d 866 (1980). A party may move for judgment on all or part of a claim under MCR 2.116 or may alternatively move for summary disposition of an individual defense. See MCR 2.116(B)(1). This template, as drafted, asserts that plaintiff is entitled to summary disposition of the entire action because (1) plaintiff's claim states a valid cause of action against defendant, (2) defendant's answer does not deny the factual allegations of plaintiff's complaint, and (3) defendant's answer fails to state any valid defense against the claims in the complaint. Alternatively, if summary disposition of the entire action is not appropriate, the plaintiff may simply move for summary disposition of one or more individual defenses in order to narrow the issues in the case. Although most motions for summary disposition require affidavits or other evidence in support of the motion, some grounds, including specifically failure to state a valid defense, are based on the pleadings alone. MCR 2.116(G)(5). Thus, the motion need not and normally should not be accompanied by an affidavit. See MCR 2.116(G)(2); Saginaw Firefighters Asso., Local 422, etc. v. Saginaw, 137 Mich. App. 625, 631, 357 N.W.2d 908 (1984). The motion should comply with the general format and content requirements for motions and other documents filed in court. See MCR 1.109(D)(1), 2.116(G)(1), 2.119. For discussion, see Motion Practice Fundamentals (MI). See also Formatting Rules in Court Checklist (MI). Thus, the motion should be accompanied by a brief in support of the motion addressing the legal issues raised and notice of hearing. See MCR 2.119(A)(2), (3). The brief should set forth legal argument showing that any defenses pleaded in the defendant's answer are insufficient as a matter of law, even if the facts alleged are taken as true. See Hanon v. Barber, 99 Mich. App. 851, 854–855, 298 N.W.2d 866 (1980). When drafting the brief, be sure to take note of the page limitations that apply to all motions and accompanying briefs. See MCR 2.119(A)(2)(a) (motion and accompanying brief combined may not exceed 20 pages double spaced, exclusive of attachments and exhibits, unless otherwise permitted by court). In addition to the statewide rules, some individual courts have specific rules governing motion practice, including the format and contents of motions. Counsel should consult these rules and modify this template as appropriate. A motion for summary disposition under MCR 2.116(C)(9) for failure to state a valid defense 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 such a motion to be considered if the motion is filed after the deadline for filing dispositive motions. MCR 2.116(D)(4). Unless a different period is set by the court, a written motion under MCR 2.116 with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing on the motion. MCR 2.116(G)(1)(a)(i). Note that this is a substantially longer period than the period applicable to most other motions. See MCR 2.119(C)(1) (seven or nine days, depending on method of service). In addition, a copy of the summary disposition motion (including brief) must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE'S COPY on the cover sheet; that notation may be handwritten. MCR 2.116(G)(1)(c). For discussion of service and filing procedures generally, see Filing and Serving Documents Other Than Initial Complaint and Summons (MI). For additional discussion of summary disposition procedures generally, see Summary Disposition Fundamentals (MI).