RESPONSE OF MICHIGAN COURTS TO COVID-19 PANDEMIC – CAN CIVIL LAWSUITS STILL BE COMMENCED AND PROSECUTED IN THESE UNCERTAIN TIMES?

Simon PLC Attorneys & Counselors – Supplemental Interim April 2020 Memorandum

RESPONSE OF MICHIGAN COURTS TO COVID-19 PANDEMIC – CAN CIVIL LAWSUITS STILL BE COMMENCED AND PROSECUTED IN THESE UNCERTAIN TIMES?

Bloomfield Hills, Michigan – Faced with the unprecedented, at least in modern times, public health crisis presented by the rapid spread of the COVID-19 virus, Federal and State governments alike have instituted extraordinary measures to slow the progression of this disease, primarily through restricting public social interaction.  Michigan’s Courts, from the district all the way to the appellate levels, are no exception to this new phase of drastically curtailed person-to-person contact.

In keeping with Michigan’s Governor’s March 10, 2020 declaration of emergency and other subsequent directives, businesses and governmental offices alike have severely limited or, in most cases, eliminated altogether physical access by the general public and must only dispense such services as have been deemed essential.  Towards that end, criminal dockets continue to be handled largely as before in order to maintain compliance with defendants’ constitutional and statutory procedural rights, albeit with greater reliance upon remote appearances via two-way videoconferencing where available.  Likewise, most civil hearings must be conducted remotely, if possible, or otherwise adjourned to a date after the emergency declaration has been lifted.

What of new civil filings against this backdrop? Suppose, regardless of current events, you have a desire to invoke judicial assistance or simply want to maintain priority over other creditors who may also be pursuing the limited assets of your debtor – is it even possible to commence a new civil case in the current era of drastically curtailed public functions? 

Fortunately, the answer is a resounding YES – Michigan’s courts remain open and clerks’ offices are accepting new civil filings.  In March 2020 Michigan’s Supreme Court, in an exercise of its superintending power over all lower state courts, began issuing a series of Administrative Orders in response to the COVID-19 outbreak to ensure a uniform response amongst all Michigan courts in limit operations to the performance of essential tasks and mitigating the spread of the disease by restricting public access to court facilities: 

Administrative Order 2020-2, issued on March 18th limits access to courtrooms and other spaces to no more than 10 persons, including staff and limits court activity to only essential functions.  The Order goes on, however, to direct that:

Further, the court must work with the county clerk to ensure that if in-person filing

of court pleadings is limited due to the state of emergency, court pleadings will continue

to be accepted for filing by other means, such as U.S. mail, e-Filing, email, or facsimile.

[emphasis supplied]

Moreover, Administrative Order 2020-3, discussed in further detail below, also provides that:

This order in no way prohibits or restricts a litigant from commencing a proceeding

whenever the litigant chooses.

Thus, it is clear that the filing of pleadings, including new case intake is deemed an essential function and clerks’ offices will continue to accept new civil filings.  Once filed, the usual requirements for service of process remain, for the moment, unchanged.  While there is currently no directive from the Supreme Court with regard to any changes in the method and manner of service of process, process servers should be expected to observe CDC and WHO guidelines for safe practices and, if informed that the intended servee or member of the household is displaying COVID-19 symptoms, immediately discontinue service attempts.  We can file the appropriate motion to obtain an order which will eliminates the need for further direct interaction to perfect service.

Once a new case has been filed and served, however, there are some adjustments to procedural deadlines that must be noted:  Administrative Order 2020-3, issued on March 23rd, provides for a tolling of the period of time in which a defendant must respond to the complaint after being served.  Typically, a Defendant has 21 days from personal service of the summons and complaint (28 days if served by other means) within which to file an answer or otherwise respond. 

The tolling effect of the Order, however, removes from the counting any days in this period which fall during a time the declared emergency (retroactive to March 10th through April 30th barring any further extensions).  Thus, if a defendant is served within the next couple of weeks, the clock will not start running on the defendant’s response due date until after the state of emergency elapses.  If served less than 21 or 28 days prior to March 10th, the defendant will have the remaining time tacked on to the expiration of the state of emergency declaration.

Keep in mind that not every defendant will avail themselves of the additional time allotted for their response, be assured that we will diligently track all relevant case milestones and act promptly at each step in order to achieve the quickest possible results.  It should also be noted that Administrative Order 2020-3 also provides for a tolling of the applicable statute of limitations if it happens to elapse within the affected period – we can review your specific situation and provide advice and guidance.

We are prepared to advise clients to successfully enforce their rights and remedies. Contact us at any time to be connected with litigation advice simonattys.com

N.B. Not Legal Advice: Please contact us if you would like to discuss the facts and circumstances of your specific matter. Simon PLC Attorneys & Counselors expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this memorandum. The information contained herein may not reflect current legal developments and is provided without any knowledge as to the recipient’s location, industry, identity or specific circumstances. No recipients of this content, clients or otherwise, should act, or refrain from acting, on the basis of any content included in this memorandum without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the jurisdiction for which the recipient’s legal issue(s) involve. The application and impact of relevant laws varies from jurisdiction to jurisdiction, and our attorneys do not seek to practice law in states, territories and foreign countries where they are not properly authorized to do so.

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