By Matthew Smith
Notices of non-party fault are common and frequently lead to multi-defendant, multi-tiered litigation. After a plaintiff asserts one or more claims against a defendant, MCR 2.112(K)(3)(a) requires defendant to file a notice identifying any non-party the defendant believes “is wholly or partially at fault.” The notice “must be filed within 91 days after the party files its first responsive pleading.” MCR 2.112(K)(3)(c). Failure to do so precludes the trier of fact from assessing liability to a non-party not identified. MCR 2.112(K)(2).
When a notice of non-party fault is timely filed, the plaintiff is generally put to two choices. It can proceed solely against the currently named defendant or defendants and gamble that the trier of fact will not allocate liability to the non-party in the so-called “empty chair.” Alternatively, it can add the non-party as an additional defendant in an amended complaint. When a plaintiff decides to amend its pleading to add the identified non-party, MCL 600.2957(2) operates to relate-back the amended pleading to “the time of filing of the original action.” For plaintiffs and defendants alike, whether the relation-back of MCL 600.2957(2) becomes operative can be dispositive of the amended claim when the applicable statute of limitations would have otherwise expired between the time of the original action and the amended pleading.
MCR 2.112(K)(4) and MCL 600.2957(2), however, appeared to conflict. MCR 2.112(K)(4) contains permissive language, stating “[a] party served with a notice under this subrule may file an amended pleading stating a claim or claims against the nonparty within 91 days of service of the first notice identifying that nonparty.” MCL 600.2957(2), however, contemplates that amendment will be “[u]pon motion of a party within 91 days after identification of a nonparty the court shall grant leave to the moving party to file and serve an amended pleading alleging 1 or more causes of action against that nonparty.” Read together, the court rule and statute begged a question: To reap the benefit of the statutory relation-back, may a plaintiff simply file an amended pleading by right, or must it first file a motion requesting leave to do so?
The Michigan Supreme Court answered this question in Stenzel v. Best Buy Co., (Docket No. 156262) (April 22, 2019). The issue reached the Court after a conflict panel of the Michigan Court of Appeals was convened in Stenzel v. Best Buy Co., 320 Mich. App. 262 (2017). The panel’s majority held that “there exists a conflict, on a matter of procedure, between the provisions of the court rule and the statute relative to whether a party must file a motion for leave to amend a pleading to add an identified nonparty at fault to an action, as provided by MCL 600.2957(2), or whether a party may simply file an amended pleading as a matter of course or right, as provided by MCR 2.112(K)(4), absent the need to seek court authorization for the amendment.” Id., at 283. After recognizing this procedural conflict, Court held that the court rule controlled over the statute, and that the plaintiff was permitted to amend and receive the statutory relation-back, without filing a motion for leave to amend. Id., at 284.
Court of Appeals Judge Elizabeth Gleicher concurred in the conflict panel’s result, but disagreed that the court rule and statute conflicted and concluded that “the two provisions are capable of harmonious coexistence.” Id., at 287. This was because “the two provisions advance precisely the same principle: a party must be permitted to timely add an identified nonparty to a pending case.” That the statute contemplated a motion was simply “one way of amending,” but “[n]othing in the statute precludes a party from achieving the same result – an amendment – by another means.” Id., at 289. “Read together, the two provisions permit a plaintiff to file a motion to amend, or not.” Id.
The Michigan Supreme Court affirmed the conflict panel’s result in a unanimous opinion, but did so adopting the reasoning set forth in Judge Gleicher’s concurring opinion. It reasoned that the court rule and statute, “exist in a ‘consistent’ and complementary fashion, and they do not conflict,” and that “this Court promulgated MCR 2.112(K)(4) to implement MCL 600.2957, not to supplant it.” Id., at *3. Therefore, “a party may amend a pleading upon receipt of notice of nonparty fault pursuant to MCR 2.112(K) without filing a motion for leave to amend, and the amended pleading relates back to the original action pursuant to MCL 600.2957(2).” Id., at *2. The Stenzel Court’s guidance is clear: a litigant may avail itself of amendment and relation back within 91 days of receiving a notice of non-party fault. Rather than risk the empty chair at trial, this procedural ruling provides peace of mind for 11th hour amendments when motion practice is not feasible.