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When in Doubt, Get it Out: The Michigan Supreme Court's Administrative Order 2020-3 Does Not Establish a "Tolling" Period For Responsive Pleadings and Motions

Christopher S. Frescoln, Esq.

The Michigan Supreme Court issued Administrative Order 2020-3 ("AO 2020-3") on March 23, 2020. AO 2020-3 extends the deadlines for filing certain initial responsive pleadings and motions in circuit court and probate court for litigants who would otherwise be required to file during the state of emergency declared by Governor Whitmer on March 10, 2020. I have seen multiple articles and blogs published in Michigan over the last week that erroneously refer to the relief granted under AO 2020-3 as a "tolling" period. By its terms AO 2020-3 does not establish a "tolling" period. It merely extends the applicable deadline for filing to the first day after the state of emergency is lifted that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order.

AO 2020-3 establishes that for such deadlines "...any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes of MCR 1.108(1)."

At first glance, I took this Order to cause the tolling of a responsive pleading period if the deadline to answer a complaint falls within the period of the state of emergency. This is the interpretation I have seen in recent-published articles. But the reference to MCR 1.108(1) does not support this interpretation. MCR 1.108(1) only refers to two particular days: The "day of the act, event, or default after which the designated period of time begins to run" and the "last day of the period". MCR 1.108(1) does not establish the periods that are referenced in the rule. The period to answer a complaint is established pursuant to MCR 2.108 (entitled "Time"). MCR 1.108(1) merely grants accommodation if the last day of any given period is a "Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order." MCR 1.108(1) is not a "tolling" statute or rule. Strictly construed in the context of "computing a period of time prescribed or allowed by these rules, by court order, or by statute", MCR 1.108(1) only applies to the first and the last day of such periods. It does not apply to any of the days falling between the first day and the last day of the period.

Applying MCR 1.108(1) to AO 2020-3, I conclude that AO 2020-3 merely extends the deadline to file an Answer, which would otherwise fall during the period of the state of emergency, to the first day immediately following the last effective day of the state of emergency "that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order." AO 2020-3 does not "toll", or suspend, any periods from running during the state of emergency. If the Supreme Court intended to toll any responsive filing periods, rather than merely extend them, then it should have referenced MCR 2.108 in AO 2020-3 rather than MCR 1.108(1). I have counseled my clients and colleagues to adopt this most conservative interpretation, which assumes the earliest possible answer deadline.

Mr. Frescoln is an experienced civil trial lawyer. He represents lending institutions, title companies, business entities, and individuals in contract, commercial and real property litigation. He can be reached at (248) 912-3070 or at [email protected].

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