Service decides when a Michigan lawsuit becomes real for the person sued, and whether a default judgment can stand
I am Mitchell Bisson, a Grand Rapids civil litigation lawyer. I have litigated for over 15 years. This page covers how a Michigan lawsuit is served and what follows a default: service methods, the summons, entering a default judgment and getting one set aside. It is written for both sides: the plaintiff who has to serve the papers correctly and the defendant who wants to know whether service counted. I represent plaintiffs and defendants. I do not promise outcomes. A default is one of the few places in a civil case where a mistake with papers can decide the case.
The short answer. A Michigan lawsuit starts when the complaint is filed, but the defendant is bound to respond only after being served in a way the court rules allow. MCL 600.1901; MCR 2.105. A summons expires 91 days after it is issued. MCR 2.102(D). If the defendant does not answer in time, the clerk enters a default, and a default judgment can follow. MCR 2.603. A default can be set aside only on a showing of good cause and a meritorious defense, and the time to ask can be as short as 21 days after a default judgment. MCR 2.603(D). Nothing here predicts how a case will end.
People are often surprised in two opposite ways. A defendant is surprised to learn that a judgment was entered because a paper was left at the wrong place or not read. A plaintiff is surprised to learn that the case was dismissed because the summons expired, or that a default judgment is open to attack because service was defective. The rules below are the ones I check first on either side.
How the court rules say each kind of defendant is served
The method depends on who is being sued. The table sets out the main rules for the defendants I see most often.
| Defendant | How process may be served | Rule |
|---|---|---|
| Individual | Delivering the summons and complaint to the defendant personally, or sending them by registered or certified mail, return receipt requested, with delivery restricted to the addressee. Service by mail is made when the defendant acknowledges receipt | MCR 2.105(A) |
| Minor | Serving a person having care and control of the minor and with whom the minor resides | MCR 2.105(B)(2) |
| Individual doing business under an assumed name | Serving the person in charge of an office or business establishment and mailing a copy by registered mail to the individual’s usual residence or last known address | MCR 2.105(B)(4) |
| Partnership | Serving a general partner or agent for service of process, or the person in charge of a partnership office together with registered mail to a general partner or agent | MCR 2.105(C) |
| Corporation, domestic or foreign | Serving an officer or the resident agent, or a director, trustee or person in charge of an office together with registered mail to the principal office | MCR 2.105(D)(1), (2); MCL 600.1920 |
| Limited liability company | Serving the managing member, non-member manager or resident agent, or a member or person in charge of an office together with registered mail to the registered office | MCR 2.105(H)(1), (2) |
| City, county, township, school district or other public body | Serving the officers the rule lists, such as the mayor, city clerk or city attorney of a city, or the county clerk or chairperson of the board of commissioners of a county | MCR 2.105(G) |
| Any defendant, if the usual methods cannot reasonably be used | Another manner reasonably calculated to give actual notice and a chance to be heard, but only by court order on a verified motion | MCR 2.105(J) |
Two points about the table. First, any legally competent adult who is not a party or an officer of a corporate party can serve process, but process that requires seizing property must be served by an officer. MCR 2.103. Second, the rule for an individual does not list leaving the papers with a household member or a co-worker. If the papers were left with someone else, I look at whether another provision of the rule fits, and if not, whether service was ever valid.
The summons: what it must say and how long it lasts
The clerk issues a summons when the complaint is filed. It must be issued in the name of the people of the State of Michigan, under the court’s seal, and directed to the defendant. It must include the court’s name and address, the parties, the case number, the plaintiff’s lawyer or address, the issue date, the last date on which the summons is valid, a statement that it is invalid unless served on or before that date, the time to answer or take other action, and a notice that judgment may be entered for the relief demanded if the defendant does not respond. MCR 2.102(A), (B).
The 91-day clock. A summons expires 91 days after it is issued. Within those 91 days, on a showing of due diligence in trying to serve the original, the judge may order a second summons for a definite period of up to 1 year from the issue date. A duplicate summons does not extend the life of the original. The 91 days are tolled while a motion challenging the summons or the service is pending. MCR 2.102(D).
What happens when the summons runs out. When the summons expires, the action is deemed dismissed without prejudice as to a defendant who has not been served and has not submitted to the court’s jurisdiction. The clerk’s failure to enter a dismissal order does not continue the action. MCR 2.102(E). A court may set the dismissal aside only on stipulation or when service was actually made within the time allowed, proof of service was filed or the failure is excused, and the motion is filed within 28 days after notice of the dismissal. MCR 2.102(F). For a plaintiff the danger is not only delay. Michigan’s tolling statute says the limitation periods are tolled when the complaint is filed, if a copy of the summons and complaint are served within the time set in the Supreme Court rules. MCL 600.5856(a). A plaintiff who files near the end of a limitation period and then fails to serve in time may find that the filing no longer protects the claim. I raise this in every case where the limitation period is close.
Proof of service, mistakes in service and how they are cured
Proof of service is made by a signed acknowledgment, a certificate from certain officers or an attorney, or a verified statement of the facts of service. The failure to file proof does not affect the validity of service. MCR 2.104(A), (B). A court may allow process or proof of service to be amended on just terms, unless it clearly appears that doing so would materially prejudice the substantive rights of the party against whom the process issued. MCR 2.102(C).
The rules are written to make sure the defendant actually learns of the case, not to reward technical errors. The rule on improper service says that an action shall not be dismissed for improper service unless the service failed to inform the defendant of the action within the time provided in the rules for service. MCR 2.105(K)(3). The statute also gives the court power to amend process or pleadings before judgment and to disregard errors that do not affect the substantial rights of the parties. MCL 600.2301. So a defendant who was in fact notified in time should not expect to escape a case on a technical defect, while a defendant who never received the papers has a strong argument. I take the facts first and the rules second.
Publication and posting. If a defendant cannot be found, a plaintiff may ask the court for permission to serve by publication or posting. The request is made by verified motion under the court’s discretion rule, and the motion must set forth the facts showing that process cannot be served, the defendant’s last known address, and the diligent inquiry made to find the defendant. MCR 2.105(J); MCR 2.106. Service cannot be made this way before the court enters its order. MCR 2.105(J)(3). A default judgment based on service by publication when a plaintiff could have found the defendant with ordinary effort is the kind of judgment I look at closely.
If you were served: counting the days and raising the right objection
The time to respond depends on how you were served. A defendant served personally in Michigan has 21 days after service to answer or take other action, and a defendant served by registered or certified mail, or outside Michigan, has 28 days. MCR 2.108(A). The day of service is not counted, and the last day is counted unless it is a Saturday, Sunday, legal holiday or court closure. MCR 1.108. For mail service, the date that counts is the date the defendant acknowledges receipt, not the date the papers were mailed. MCR 2.105(A)(2).
If the service was defective, the available grounds include that the court lacks jurisdiction over the person, that the process was insufficient, and that the service of process was insufficient. MCR 2.116(C)(1), (2), (3). These objections can be lost. The grounds of insufficient process and insufficient service must be raised in a party’s first motion or responsive pleading, or they are waived. MCR 2.116(D)(1). That is why I do not tell a client to ignore papers that look wrong. I ask whether the defect is worth raising, raise it in the first filing if it is, and defend on the merits as well.
How a default and a default judgment happen
A default is the clerk’s entry that a party has failed to plead or otherwise defend. If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, the clerk must enter the default if that fact is known to the clerk or verified in a request for default. MCR 2.603(A)(1). After the default is entered, notice is sent to all parties who have appeared and to the defaulted party, and the defaulted party may not proceed with the action until the default is set aside. MCR 2.603(A)(2), (3).
A default judgment is a separate step, and there are two routes to it:
- By the clerk. On a written request verified as to the amount due, the clerk may enter a default judgment if the claim is for a sum certain or a sum that can be made certain by computation, the default was entered because the defendant failed to appear, the defendant is not an infant or incompetent person, and the amount requested is not greater than the amount in the complaint. MCR 2.603(B)(2).
- By the court. In all other cases the plaintiff must file a motion. The court may hold hearings to determine damages and must give a jury trial to the extent the constitution requires. A default judgment may not be entered against a minor or incompetent person unless represented. MCR 2.603(B)(3).
A plaintiff has several requirements to meet before a default judgment is safe. Notice of the request must be served at least 7 days before entry if the defendant has appeared, if the request seeks relief different in kind or greater in amount than the pleadings state, or if the pleadings state no specific amount. MCR 2.603(B)(1). A default judgment may not be different in kind from, or exceed in amount, the relief demanded in the pleading, unless that notice has been given. MCR 2.601(B). Nonmilitary affidavits required by law must be filed before judgment is entered when the defendant has failed to appear. MCR 2.603(C). And the plaintiff must promptly serve the default judgment on all parties, mailing it to the defendant’s last known address or the address of the place of service, and file proof of service. MCR 2.603(B)(4). A plaintiff who skips these steps risks a judgment that a court will set aside.
Getting a default or default judgment set aside
A motion to set aside a default or default judgment, other than one based on lack of jurisdiction over the defendant, is granted only if good cause is shown and a statement of facts showing a meritorious defense, verified as the rules require, is filed. MCR 2.603(D)(1). The Michigan Supreme Court has treated good cause and a meritorious defense as separate requirements that a party must show. Alken-Ziegler, Inc. v. Waterbury Headers Corp., 461 Mich. 219, 229 to 233 (1999). Good cause can be shown by a substantial procedural defect or irregularity, or by a reasonable excuse for the failure to comply with the requirements that created the default. Koy v. Koy, 274 Mich. App. 653, 658 (2007). Manifest injustice is not a third kind of good cause. When the defense is strong, a lesser showing of good cause will do, but good cause must still be shown. Barclay v. Crown Building & Development, Inc., 241 Mich. App. 639, 653 (2000).
| Situation | What the rule requires | Rule |
|---|---|---|
| Default entered; no default judgment yet; defendant was personally served | Motion filed before a default judgment is entered | MCR 2.603(D)(2)(a) |
| Default judgment entered; defendant was personally served | Motion filed within 21 days after the default judgment, except as MCR 2.612 provides | MCR 2.603(D)(2)(b) |
| Challenge based on lack of jurisdiction over the defendant | The good cause and meritorious defense requirements do not apply | MCR 2.603(D)(1) |
| Relief from a final judgment for mistake, inadvertence, surprise, excusable neglect, newly discovered evidence or fraud | Motion within a reasonable time and within 1 year after the judgment | MCR 2.612(C)(1)(a) to (c), (C)(2) |
| Judgment is void | Motion within a reasonable time | MCR 2.612(C)(1)(d), (C)(2) |
| Defendant had no knowledge of the action, but personal jurisdiction was necessary and acquired | Appearance within 1 year after final judgment, with a reason justifying relief and no prejudice to innocent third persons | MCR 2.612(B) |
An order setting aside a default or default judgment must be conditioned on the defaulted party paying the taxable costs the other side incurred in reliance on it, and the court may impose other conditions, including a reasonable attorney fee. MCR 2.603(D)(4). The timing rules are strict, which is why a client who learns of a default should call the same day and not wait to gather every document.
Practical checklists for each side
If you are serving.
- Calendar the 91-day expiration date of the summons the day it is issued, and the limitation date for the claim.
- Choose the method the rule lists for that kind of defendant, and keep the proof: the signed receipt, the process server’s statement or the officer’s certificate.
- If the defendant cannot be found, document the search and ask for an alternate service order before the summons expires, not after.
- If the defendant defaults, check whether you can use the clerk route or need a motion, whether the 7-day notice applies, and whether the judgment asks for more than the complaint did.
- Serve the default judgment and file proof of service.
If you were served.
- Write down the date, time and manner of service, and keep the envelope, receipt and every page you were given.
- Calendar the response date using the 21 or 28 day rule, and do not count on an extension without a court order or agreement.
- Decide in the first response whether to raise insufficient process or service, because the objection is waived if it is left out.
- If a default has been entered, act immediately. The window after a default judgment can be 21 days.
- Gather proof of a meritorious defense, because a verified statement of the facts is required to set aside a default.
How I handle a service or default problem
- Pin down the dates. Filing date, summons issue date, service date and method, response deadline, default date and judgment date.
- Read the proof of service. I compare it with the rule for that defendant and with what actually happened.
- Check the clock. For a plaintiff, the summons and the limitation period. For a defendant, the response date and any set-aside deadline.
- Choose the filing. An answer, a motion on process or service, a motion to set aside, or for a plaintiff a request for default and a motion for judgment.
- Build the record. Affidavits on service, a verified statement of a meritorious defense and the documents behind it.
- Explain the cost and the risk. I tell you what a motion may cost, what conditions a court may impose, and what happens if it is denied.
Ways a service or default dispute may end
A defective service issue may end with a corrected service and a case that goes forward, which is often the real result. A default may be set aside on terms, such as payment of the other side’s costs, and the case then proceeds on the merits. A default judgment may stand when the notice was proper and no defense is shown. A dispute may also end in a settlement that replaces the judgment. I tell you which outcome is realistic after I read the papers.
What I need from you
Bring every paper you were given or sent: the summons, the complaint, the envelope, any receipt, any notice of default or judgment, and any letter from the other side. Write down when and where you received the papers, who handed them to you, and what you did next. If you are the plaintiff, bring the summons, the proof of service and your record of every attempt to serve. If you are a business, tell me who the registered agent is and who handles the mail. Do not ignore papers because you think they were served wrongly. Bring them to me first.
Where your Kent County lawsuit will be heard
I represent clients in Grand Rapids, Kentwood, Grandville, Wyoming and across Kent County. Under MCL 600.8301(1), the district court has exclusive jurisdiction in civil actions when the amount in controversy does not exceed $25,000. Michigan law sets the Kent County district courts by municipality. The 61st District Court serves the city of Grand Rapids, the 59th serves the cities of Grandville and Walker, the 62A serves the city of Wyoming and the 62B serves the city of Kentwood. MCL 600.8128a; MCL 600.8130(1)-(3). The 63rd District Court serves the rest of Kent County outside those five cities. MCL 600.8130(4). Circuit courts have original jurisdiction over civil claims that are not assigned exclusively to another court by the constitution or statute, and for Kent County the circuit court is the 17th Judicial Circuit. MCL 600.605; MCL 600.518. The summons, the service rules and the default rules above apply in both.
Why people hire me for a Michigan service or default matter
You work directly with me, the lawyer handling your case. I read the papers and the dates first and tell you plainly whether service was good, whether a default can be reversed, and what the cost and risk are. I work for plaintiffs and defendants, individuals and businesses.
Fees depend on the type of case, its complexity and whether it is likely to go to a hearing or trial. I explain my fee arrangement at the consultation, before you decide whether to hire me.
Questions I hear from people about service of process and defaults
I was served with a summons and complaint in Michigan. What do those papers tell me, and what must I do with them?
The summons states the court, case number, plaintiff or plaintiff’s lawyer, the last date it is valid, and the time within which the defendant must answer or take other action. It also warns that judgment may be entered for the relief demanded if the defendant does not respond in time. The complaint states the facts and the relief sought. Both are read for the deadline, the claims, and the amount demanded before anything else is decided.
How do I count the 21 days to answer a lawsuit in Michigan, and can I get more time?
The day of service is not counted, and the last day is counted unless it falls on a Saturday, Sunday, legal holiday or court closure, in which case the period runs to the next day that is not one of those. The period is 21 days for personal service in Michigan and 28 days where service was by registered or certified mail or made outside Michigan. A court may extend the time if asked before it expires, and may allow late action afterward on a showing of excusable neglect.
Who can serve me with a lawsuit in Michigan, and does the way I was served matter?
Any legally competent adult who is not a party can serve process. For an individual, the basic methods are delivering the summons and complaint to the defendant personally, or sending them by registered or certified mail, return receipt requested, with delivery restricted to the addressee (an agent authorized by written appointment or by law to receive process may also be served). A court can order another method if service cannot reasonably be made the usual way. Insufficient service is a defense that is waived if it is not raised in the first motion or the responsive pleading.
What if I was served with a Michigan lawsuit by certified mail? When does service count, and how long do I have to respond?
For an individual, mail service must be registered or certified, return receipt requested, with delivery restricted to the addressee. The rule says service is made when the defendant acknowledges receipt of the mail, and a copy of the signed return receipt is attached to the proof of service. The response period for service by registered mail is 28 days after service, not 21.
How does a default and a default judgment actually happen in a Michigan civil case?
If a defendant has failed to plead or otherwise defend, the clerk enters the default. A defaulted party may not proceed with the action until the default is set aside. A default judgment is then entered either by the clerk, for a sum certain when the defendant failed to appear, or by the court on motion in other cases, and seven days’ notice of the request is required in certain situations.
What do I have to show to get a default or default judgment set aside in Michigan?
The court must find good cause, and the defendant must file a verified statement of facts showing a meritorious defense. Good cause can be shown by a substantial procedural defect or irregularity or a reasonable excuse for the failure that caused the default. If the defendant was personally served, the motion must be filed before the default judgment is entered or within 21 days after it. The order setting aside the default must be conditioned on paying the other side’s taxable costs.
Related Michigan pages
- Grand Rapids civil litigation attorney
- Defending a lawsuit: the answer, defenses, counterclaims and early motions
- Civil discovery and trial
- Collecting a judgment
- Motions for reconsideration and relief from judgment
I represent plaintiffs and defendants in civil lawsuits in Kent County and West Michigan. Contact me 24/7 by phone or email. Your Rights, My Fight! Call for a free initial consultation.
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Law Offices of Mitchell S. Bisson, 2828 Kraft Ave SE, Suite 295, Grand Rapids, MI 49512, serving Kent County and West Michigan.
This page provides general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Consult a licensed attorney about your specific situation.