September 15, 1998


98-26


Proposed Amendment of Rule
2.203 of the Michigan Court
Rules
_____________________________

          On order of the Court, this is to advise that the Court
is considering an amendment of Rule 2.203 of the Michigan Court
Rules.  Before determining whether the proposal should be
adopted, changed before adoption, or rejected, this notice is
given to afford any interested person the opportunity to comment
on the form or the merits of the proposal.  We welcome the views
of all who wish to address the proposal or who wish to suggest
alternatives. 

          As whenever this Court publishes an administrative
proposal for comment, we emphasize that publication of this
proposal does not mean that the Court will issue an order on the
subject, nor does it imply probable adoption of the proposal in
its present form.

[The present language would be amended as indicated below.]

ICLE Editor's Note:

RULE 2.203     JOINDER OF CLAIMS, COUNTERCLAIMS, AND CROSS-CLAIMS

(A)  Compulsory Joinder.

[(1)]   In a pleading that states a claim
     against an opposing party, the pleader must join
     every claim that the pleader has against that
     opposing party at the time of serving the
     pleading, if it arises out of the transaction or
     occurrence that is the subject matter of the
     action and does not require for its adjudication
     the presence of third parties over whom the court
     cannot acquire jurisdiction.

[(2)   Failure to object in a pleading, by motion,
     or at a pretrial conference to improper joinder of
     claims or failure to join claims required to be
     joined constitutes a waiver of the joinder rules,
     and the judgment shall only merge the claims
     actually litigated.  This rule does not affect
     collateral estoppel or the prohibition against
     relitigation of a claim under a different
     theory.]

(B) - (F)      [Unchanged.]

          Staff Comment:  The proposal to amend MCR
2.203(A) comes from the Representative Assembly of the State Bar
of Michigan, upon recommendation of the Civil Procedure
Committee.  In its report to the Representative Assembly, the
Committee provided the following explanation:

     "The committee proposes to delete subsection (A)(2) and
thereby to eliminate a procedural quirk that sometimes
prevents the common law doctrine of res judicata from
working.  Subsection (A)(2) contains an anomalous
requirement:  unless the opposing party formally objects to
the claimant's failure to join all possible claims arising
from the same transaction or occurrence, the judgment only
merges claims actually litigated.  If there were no
Subsection (A)(2), then the opposing party would not have to
object to nonjoinder; the common law doctrine of res
judicata would automatically bar all claims arising out of
the same transaction or occurrence that could have been
litigated.  The committee could not find any good reason for
subsection (A)(2)'s easily-overlooked prerequisite that
hinders the operation of res judicata.  The committee felt
that the proposed amendment would foster judicial economy
and avoid piecemeal, duplicate litigation.  It also would
make Michigan practice consistent with federal rule
practice, and practice in most other jurisdictions.  After
we passed this rule change, one of our committee members
suggested that somehow it should be made clear that this
change in the rules operates only prospectively to cases
filed after the effective date of the rule change."


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

          _____________________________________________

Publication of this proposal does not mean
that the Court will issue an order on the
subject, nor does it imply probable adoption
in its present form.  Timely comments will be
substantively considered, and your assistance
is appreciated by the Court.                 
          _______________________________________________


          A copy of this order will be given to the secretary of
the State Bar and to the State Court Administrator so that they
can make the notifications specified in MCR 1.201.  Comments on
this proposal may be sent to the Supreme Court clerk within 60
days after it is published in the Michigan Bar Journal.  When
filing a comment, please refer to our file No. 98-26.