help! mi rule 2.504

[kim662]

Rule 2.504 Dismissal of Actions

(A) Voluntary Dismissal; Effect.

(1) By Plaintiff; by Stipulation. Subject to the provisions of MCR 2.420 and MCR 3.501(E), an action may be dismissed by the plaintiff without an order of the court and on the payment of costs

(a) by filing a notice of dismissal before service by the adverse party of an answer or of a motion under MCR 2.116, whichever first occurs; or

( by filing a stipulation of dismissal signed by all the parties.

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a dismissal under subrule (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.

(2) By Order of Court. Except as provided in subrule (A)(1), an action may not be dismissed at the plaintiff's request except by order of the court on terms and conditions the court deems proper.

(a) If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the court shall not dismiss the action over the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court.

( Unless the order specifies otherwise, a dismissal under subrule (A)(2) is without prejudice.

( Involuntary Dismissal; Effect.

(1) If a party fails to comply with these rules or a court order, upon motion by an opposing party, or sua sponte, the court may enter a default against the noncomplying party or a dismissal of the noncomplying party’s action or claims.

(2) In an action, claim, or hearing tried without a jury, after the presentation of the plaintiff's evidence, the court, on its own initiative, may dismiss, or the defendant, without waiving the defendant’s right to offer evidence if the motion is not granted, may move for dismissal on the ground that on the facts and the law, the plaintiff has no right to relief. 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. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in MCR 2.517.

(3) Unless the court otherwise specifies in its order for dismissal, a dismissal under this subrule or a dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for failure to join a party under MCR 2.205, operates as an adjudication on the merits.

© Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. This rule applies to the dismissal of a counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone, pursuant to subrule (A)(1), must be made before service by the adverse party of a responsive pleading or a motion under MCR

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2.116, or, if no pleading or motion is filed, before the introduction of evidence at the trial.

(D) Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based on or including the same claim against the same defendant, the court may order the payment of such costs of the action previously dismissed as it deems proper and may stay proceedings until the plaintiff has complied with the order.

(E) Dismissal for Failure to Serve Defendant. An action may be dismissed as to a

Does this mean that my cases that were dismissed twice without prejudice are not able to be reinstated or persued further?

Little background:

Case #1 cap1, around $1200. within sol. answered denial to summons, then I mtc arb including judges order to dismiss w/o prej. She signed. Puts case on hold, I send demand for arb to jams, set up payment plan with them for my $250, 90 days go by, judge calls jams to verify and they tell her that cap1 hasn't replied. She issues 2nd dismissal for lack of progress. case closed.

Case #2 cach,llc, same situation, diff judge, approves my mtc with dismissal, case on hold. I send in my demand, pay my $50(this arb clause my fee only $50 theirs is $750) They do nothing. 90 days goes by, judge sets a pretrial. I quickly file a motion to dismiss w/prej due to non-compliance of the order on their part, court says he will rule on it at the pretrial. I go, they appear by phone and claim to have not gotten any info from jams at all. and they were so surprised by my motion. Judge gives them 3 wks to ask their client to pay their fee. He sets a hearing for my motion at that time. 2 days prior to the hearing they enter stipulated dismissal w/o prejudice. case closed.

Any reason I should do anything else with this? And does that rule mean that they cant come back again?

[kim662]

Also, in 2.116 D)

Does that mean they should have to pay me for costs?

[usagi555]

You say the judges put the cases on hold. That may not count as a dismissal.

[kim662]

This court is so screwed up, too. They don't seem to know what they're doing. Both judges signed the orders to dismiss. There was no mention in any documents that either case was stayed or continued at all. The order says it is hereby ordered and adjudicated that defendants motion shall be granted, this matter is dismissed without prejudice.

In the cach case, I asked the judge at the pretrial how this even got back into court since it was dismissed once. He was dumbfounded, had to search the file for the dismissal, couldnt find it, I showed him my copy, and he said, "hmmm, that is strange," looks at his court asst "this case was dismissed already" looks back at me and says, well we have to follow up. And that was it. He did mention before I left that I would probably hear from them prior to the motion hearing.

So, I have two separate dismissal orders for each case. And I have no idea what to do with them. lol. If anything.

Edited April 10, 2012 by kim662

[kim662]

by filing a stipulation of dismissal signed by all the parties.

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a dismissal under subrule (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.

WHAT DOES THIS MEAN? LOL

[kim662]

Can one motion the court to change the dismissal from w/o prej to w/prej once the case is closed? I think if could bring this to the attention of the judges they would consider it. Neither of them even thought about the fact that they had already dismissed the case once when they granted my mtc and dismiss.

[usagi555]

by filing a stipulation of dismissal signed by all the parties.

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a dismissal under subrule (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.

WHAT DOES THIS MEAN? LOL

It means that if the plaintiff sues you, then the plaintiff dismisses the case, then the plaintiff sues you again on the same claims, and then the plaintiff dismisses the case a second time, it is the same as had you gone to trial and the court ruled in your favor.

It can also mean that there were two dismissals under rule 2.116:

Rule 2.116 Summary Disposition

(A) Judgment on Stipulated Facts.

(1) The parties to a civil action may submit an agreed-upon stipulation of facts

to the court.

(2) If the parties have stipulated to facts sufficient to enable the court to render

judgment in the action, the court shall do so.

( Motion.

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(1) A party may move for dismissal of or judgment on all or part of a claim in

accordance with this rule. A party against whom a defense is asserted may

move under this rule for summary disposition of the defense. A request for

dismissal without prejudice under MCL 600.2912c must be made by motion

under MCR 2.116 and MCR 2.119.

(2) A motion under this rule may be filed at any time consistent with subrule

(D) and subrule (G)(1), but the hearing on a motion brought by a party

asserting a claim shall not take place until at least 28 days after the opposing

party was served with the pleading stating the claim.

© Grounds. The motion may be based on one or more of these grounds, and must

specify the grounds on which it is based:

(1) The court lacks jurisdiction over the person or property.

(2) The process issued in the action was insufficient.

(3) The service of process was insufficient.

(4) The court lacks jurisdiction of the subject matter.

(5) The party asserting the claim lacks the legal capacity to sue.

(6) Another action has been initiated between the same parties involving the

same claim.

(7) The claim is barred because of release, payment, prior judgment, immunity

granted by law, statute of limitations, statute of frauds, an agreement to

arbitrate, infancy or other disability of the moving party, or assignment or other

disposition of the claim before commencement of the action.

(8) The opposing party has failed to state a claim on which relief can be

granted.

(9) The opposing party has failed to state a valid defense to the claim asserted

against him or her.

(10) Except as to the amount of damages, there is no genuine issue as to any

material fact, and the moving party is entitled to judgment or partial judgment

as a matter of law.

[...]

Or it could mean that there were two dismissals, one by the plaintiff and another by rule 2.116. All of these lead to the effect of being an adjudication upon the merits.

If the court doesn't have the records of the dismissal, you may have some problems. I also don't know about filing a motion to have the court declare the dismissals count as an adjudication on the merits. The situation you are describing sounds very messy, and while, if I were in such a situation, I would be pulling this as a defense, I would not be relying on it. If I were the plaintiff filing another lawsuit, I would argue that the 2nd dismissal wasn't really a 2nd dismissal because 1) I didn't file two separate complaints and 2) the 2nd dismissal would not have happened unless there had been a clerical error that was not the fault of the plaintiff.

[kim662]

Thank you for your input. I guess I will just wait to see if either one refiles. It has already been ordered into arbitration and they didn't follow through with it so I guess that will be another thing in my favor if I have to go through this again. Let's say they file again, would I countersue? Or since arbitration has already been initiated would it go right back to JAMS?

[BTO429]

If they sue again you use the fact that the court has already dismissed this case twice due to the Plaintiffs not following the rule of civil court.

[BTO429]

You may, if you argue the case correctly if they file again, that they are harassing you because they can not prove their cases on two previous cases and they can not keep filing against you until the court rules in their favor that is harassment,.

You can also counterclaim for damages, duress for filing multiple claims against you

Vexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender

Florida has the Florida Vexatious Litigant Law.

Edited April 11, 2012 by BTO429

[usagi555]

You may, if you argue the case correctly if they file again, that they are harassing you because they can not prove their cases on two previous cases and they can not keep filing against you until the court rules in their favor that is harassment,.

You can also counterclaim for damages, duress for filing multiple claims against you

Vexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender

Florida has the Florida Vexatious Litigant Law.

Gunny, because of some other possible issues (I haven't looked up the case law, especially not in MI on those issues,) I might be tempted to throw in the filing of another lawsuit when they know that private contractual arbitration has been elected also counts as vexatious litigation.

[kim662]

This has been extremely stressful, if not for Linda, (thanks again) I'd have been screwed long ago. I've gotten this far only because of her help. I'm a single mom working 3 jobs just to keep the bills paid. If I can just make them go away it will good enough for me, but of course it would be nice to make them pay for the nervous breakdown they almost caused me and maybe still will, time away from work, trips to the post office, court house, crrm fees, copy fees etc...

I just don't want to get in over my head.