September 9, 2003



ADM File No. 2001-47

Amendment of Rule 2.102
of the Michigan Court Rules
                         


     On order of the Court, notice of the proposed changes and an opportunity for
comment in writing and at a public hearing having been provided, and consideration
having been given to the comments received, the following amendment of Rule 2.102 of
the Michigan Court Rules is adopted, to be effective January 1, 2004.


[The present language is amended as indicated below by underlining for additions and
strikeover for deletions.]

ICLE Editor's Note:


[Italicized, bracketed text] indicates text that has been deleted.

Bold text  indicates new text.



Rule 2.102     Summons; Expiration of Summons; Dismissal of Action for Failure to
Serve

(A) - (C)  [Unchanged.]

(D)  Expiration.  A summons expires 91 days after the date the complaint is filed. 
However, within [that] those 91 days, on a showing of [good
cause] due diligence by the plaintiff in attempting to serve the original
summons, the judge to whom the action is assigned may order a second summons to
issue for a definite period not exceeding 1 year from the date the complaint is filed.  If
such an extension is granted, the new summons expires at the end of the extended period. 
The judge may impose just conditions on the issuance of the second summons. 
Duplicate summonses issued under subrule (A) do not extend the life of the original
summons.  The running of the 91-day period is tolled while a motion challenging the
sufficiency of the summons or of the service of the summons is pending.

(E) - (G)  [Unchanged.]
     Staff Comment:  The September 9, 2003 amendment of subrule (D),
effective January 1, 2004, substituted the phrase "due diligence by the plaintiff in
attempting to serve the original summons" for the "good cause" requirement in the
former subrule. This is consistent with Bush v Beemer, 224 Mich App 457 (1997).   Cf.
Richards v McNamee, 240 Mich App 444 (2000).  In any event, the relevant statute of
limitations would not be tolled unless the complaint were timely filed and the
requirements of MCL 600.5856 were met before the expiration of the period of
limitation.  See Gladych v New Family Homes, Inc, 469 Mich ___ (2003).

The staff comment is published only for the benefit of the bench and bar and is not an
authoritative construction by the Court.