On March 10, 2020, the State of Michigan identified the first two presumptive-positive cases of the novel coronavirus (COVID-19) in its borders. That same day, Governor Gretchen Whitmer issued an executive order declaring a state of emergency based on her authority under Art. 5, Sec. 1 of the Michigan Constitution of 1963, the Emergency Management Act (MCL 30.401 through 30.421) and the Emergency Powers of the Governor Act (MCL 10.31 through 10.33). “The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists.” MCL 30.403(4). “After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). This was followed by several additional orders that closed non-essential businesses, compelled residents to stay in their homes, mandated social distancing and directed employees to work remotely if possible. The court system has also been affected and many offices are operating on a bare-bones skeleton crew. This limited access has made it nearly impossible for individuals to access essential legal services, including filing and responding to lawsuits and other civil litigation.
In response, the Michigan Supreme Court issued Administrative Order No. 2020-3 on March 23, 2020, which extend the deadlines for certain legal actions. Specifically, the order provides the following:
- “For all deadlines applicable to the commencement of all civil and probate case-types, including but not limited to the deadline for the initial filing of a pleading under MCR 2.110 or a motion raising a defense or an objection to an initial pleading under MCR 2.116, and any statutory prerequisites to the filing of such a pleading or motion, 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).”
- “This order is intended to extend all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency declared by the Governor related to COVID-19. Nothing in this order precludes a court from ordering an expedited response to a complaint or motion in order to hear and resolve an emergency matter requiring immediate attention. We continue to encourage courts to conduct hearings remotely using two-way interactive video technology or other remote participation tools whenever possible.”
- “This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses. Courts must have a system in place to allow filings without face-to-face contact to ensure that routine matters, such as filing of estates in probate court and appointment of a personal representative in a decedent’s estate, may occur without unnecessary delay and be disposed via electronic or other means.”
On March 26, 2020, the Michigan Supreme Court issued Administrative Order No. 2020-4 extending the suspension of deadlines to filings in the Michigan Supreme Court and the Court of Appeals:
- “The deadlines for all filings, jurisdictional and non-jurisdictional, in the Michigan Supreme Court and Court of Appeals are suspended as of March 24, 2020, the effective date of Executive Order 2020-21, and will be tolled until the expiration of EO 2020-21 or a subsequent EO that extends the period in which citizens are required to suspend activities that are not necessary to sustain or protect life. This AO gives filers the same number of days to submit their filings after the EO expires as they had before the suspension went into effect. For example, if the deadline for filing an application for leave to appeal with the Michigan Supreme Court is March 26, 2020, the filer would have three business days after the EO expires to timely submit the application with the Court.”
How do these new deadlines apply? Let’s say, for example, that you suffered a dog bite on March 20, 2017 and you are considering suing the homeowner for injuries and other damages. The statute of limitations for a dog-bite lawsuit is three years after the injury occurred, meaning that the plaintiff must file the lawsuit with the court by March 20, 2020 under normal circumstances. However, for purposes of calculating the statute of limitations deadline, “[t]he last day of the period is included, unless it 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). Since the state of emergency was declared on March 10, 2020, the original deadline of March 20 is not in effect due to Administrative Order 2020-03.
What is the new filing deadline? This answer depends on when the state of emergency is lifted. If the governor was to end the state of emergency on June 1, 2020, then this means that the plaintiff has until the end of the day on June 2, 2020 to file suit. Beyond that date, the statute of limitations is expired and the plaintiff will be barred from ever seeking recovery for the dog-bite injury. This extension, however, does not prevent the plaintiff from actually filing suit during the state of emergency. However, if suit is filed and the defendant is properly served, then the defendant enjoys the deadline extension under Administrative Order 2020-03 to file responsive pleadings. Ordinarily, a defendant has 21 days from the date of service to file an answer to a complaint for damages (or 28 days if served by mail). Under the dog-bite example, if the plaintiff filed suit on March 20, 2020 and served the defendant personally on March 24, 2020, then he or she would ordinarily have until April 14, 2020 to file a response or else he or she could be subject to default proceedings. Due to the COVID-19 crisis, if the governor was to end the state of emergency on June 1, 2020, then this means that the defendant has until the end of the day on June 2, 2020 to file a response.
The administrative order only affects initial pleadings and responses only. This is not intended to affect any scheduling orders in existing cases such as discovery and motion deadlines unless otherwise ordered by the trial judge. This administrative order affects probate proceedings in addition to general civil proceedings. For example, a creditor that wishes to file suit against a decedent’s estate generally has 63 days from the disallowance of the claim by the personal representative to initiate a lawsuit. Due to the COVID-19 emergency, the creditor’s deadline is extended to the end of the first day following the day the state of emergency is lifted to file suit.
These administrative orders can have a substantial effect on a litigant’s rights and will likely be raised as a defense to any motions for summary disposition asserting the statute of limitations. A skilled lawyer that understands these laws and administrative orders can properly advise you how to proceed and argue your strongest position to the court. If you or a loved one have any questions about these administrative orders or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.