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On 7/10/2018 at 12:15 PM, Brotherskeeper said:

Your Answer was your first responsive pleading.

Did you list an agreement to arbitrate as an affirmative defense in your Answer under a separate section titled, "AFFIRMATIVE DEFENSES?"

You may motion the court (under MCR 2.118 (A)(2)(3)) to amend your answer to include affirmative defenses . If granted by the judge, an amended answer takes the place of the previous answer. 

Rule 2.118 Amended and Supplemental Pleadings

(A) Amendments.

(1) A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party, or within 14 days after serving the pleading if it does not require a responsive pleading.

(2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.

(3) On a finding that inexcusable delay in requesting an amendment has caused or will cause the adverse party additional expense that would have been unnecessary had the request for amendment been filed earlier, the court may condition the order allowing amendment on the offending party's reimbursing the adverse party for the additional expense, including reasonable attorney fees.

(4) Amendments must be filed in writing, dated, and numbered consecutively, and must comply with MCR 2.113. Unless otherwise indicated, an amended pleading supersedes the former pleading.

Case is adjourned for 30 days.

The attorney said there may be a motion for summary judgement coming from them, he wasnt sure. 

I informed the judge I will be filing a motion to amend my answer. He was fine with that and the attorney didnt object. I'm working on this tonight.


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Plaintiff's opposition to the motion to compel is not just weak, it is patently ridiculous.  What a pile.

The judge's refusal to give a reason (other than "I have jurisdiction") for the denial is also ridiculous.

Were the mistakes made by OP anything other than:
1. Filing the motion to compel pursuant to the FAA, and not styled as "Defendant's Motion for Summary Disposition to Compel Arbitration and to Stay Proceedings" pursuant to MCR 2.116(C)(7), with a support brief.
2. Not filing the latter in (1) in lieu of an answer pursuant to MCR 2.116(D)(2), or not including the appropriate affirmative defense in the answer.
3. Not filing an interlocutory appeal of the denied motion (but maybe this is good here, since the motion was lacking).

What is the consensus now, that if OP amends his answer with the appropriate affirmative defense, that he may get a second shot at a new and improved 'motion for summary disposition to compel arbitration'?

And even if a new motion for summary disposition to compel arbitration is denied, the better motion will be in the record for an appeal?

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