Setting aside a default or filing a motion to dismiss for improper process service - Michigan

March 28, 2020 - Categories: Legal Articles, Michigan, Illinois, Arizona


Standard of Review

A trial court’s decision regarding a motion to set aside a default is reviewed for an abuse of discretion. Koy v Koy, 274 Mich App 653, 657; 735 NW2d 655 (2007). "An abuse of discretion occurs when the court's decision falls outside the range of reasonable and principled outcomes." Ypsilanti Charter Tp v Kircher, 281 Mich App 251, 273; 761 NW2d 761 (2008). While the law favors the determination of claims on their merits, the policy of this state is generally against setting aside properly entered defaults. Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 229; 600 NW2d 638 (1999).

A motion to set aside a default or a default judgment is to be granted only if the movant shows good cause and files an affidavit of meritorious defense. MCR 2.603(D)(1). Traditionally, good cause has been defined to mean: (1) a substantial irregularity or defect in the proceedings upon which the default is based; (2) a reasonable excuse for failure to comply with the requirements that created the default; or (3) a showing that manifest injustice would result if the default were allowed to stand. Reed v Walsh, 170 Mich App 61, 64; 427 NW2d 588 (1988). Appellate courts have construed the phrase “substantial defect in the proceedings” to mean a variety of occurrences, including improper service of process. Thomas v Thomas 81 Mich App 499, 501, 265 NW2d 390 (1978).

Law & Analysis

Service of process has long been established as one of the cornerstones of the American court system, as it puts on person on notice that a lawsuit has been filed against him or her. The purpose of service of process rules is to provide actual notice of a lawsuit and an opportunity to defend. MCR 2.105(I)(1). Service-of-process rules are intended to satisfy the due process requirement that a defendant be informed of the pendency of an action by the best means available, by methods reasonably calculated to give a defendant actual notice of the proceeding and an opportunity to be heard and to present objections or defenses. Hill v Frawley, 155 Mich App 611, 613 (1986).

The required manner of service of process on individuals is outlined in the Michigan Court Rules at MCR 2.105(A): Process may be served on a resident or nonresident individual by (1) delivering a summons and a copy of the complaint to the defendant personally; or (2) sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee. Service is made when the defendant acknowledges receipt of the mail. A copy of the return receipt signed by the defendant must be attached to proof showing service under subrule (A)(2).

The plain language of the court rule itself does not define the meaning of “delivering a summons and complaint,” however the actual means and manner of making personal delivery of a summons and complaint was discussed extensively in Barclay v Crown Building & Development, 241 Mich App 639; 617 NW2d 373 (2000). In that case, Defendant appealed a judgment that had been entered against him. One of Defendant’s arguments was that he had not been properly served and, more specifically, there had been no “in-hand delivery” of the summons and complaint. Testimony at an evidentiary hearing revealed that the process server attempted to serve defendant personally as Defendant walked towards his office. Defendant reached his office, closed the door behind him and locked it. The process server then left the summons and complaint in the outside door handle and told Defendant through the door that he had been served.

The Barclay Court then went on to discuss the essence and purpose of service, which is to provide actual notice of the commencement of a lawsuit. While the Barclay Court rejected the notion that personal service must include in-hand delivery, it did clarify that three elements exist in order to establish proper personal service of a summons and complaint: “informing the defendant of the nature of the papers, offering them to the defendant, and leaving them within the defendant’s physical control ought to (and does) suffice to constitute ‘delivery.’” Barclay v Crown 241 Mich App 639, 647.

            There is also an important distinction to be made between improper service and the complete failure to make service of process. The importance of the distinction is discussed in Holliday v Townley, 189 Mich App 424; 473 NW2d 733 (1991). In Holliday, the plaintiff filed a complaint and sent a copy to the defendant with a cover letter threatening to “formally serve the papers” if the defendant did not provide the plaintiff with dental records that she requested. The defendant was never served with or received a summons. The summons expired, and the limitation period expired. The trial court dismissed the action for failure to serve the defendant. On appeal, the plaintiff relied on MCR 2.105(J)(3) and argued that the defendant had actual notice of the lawsuit. This Court concluded that MCR 2.105(J)(3) was inapplicable “where the question is not one of defects in the manner of service, but rather a complete failure of service of process.” Id. at 425. The Court stated that the rule “forgives errors in the manner or content of service of process. It does not forgive a failure to serve process.” Id. at 426. The summons is a necessary part of service of process. “MCR 2.105(J)(3), as well as every other court rule governing service of process, assumes that the summons will be served with the complaint, even if in a technically defective fashion.” Id. The Court in Holliday concluded that there was a complete failure of service of process and, therefore, affirmed the dismissal of the action. In sum, even if a defendant has “actual notice” of a proceeding against him, the complete failure to serve process within the time frame provided by the court rules will result in a dismissal.

            Additionally, a defendant’s first responsive pleading is not always an answer to a complaint and could be a motion for summary disposition. The rule to avoid waiver of service of process objections under MCR 2.116(C)(3) is found in MCR 2.116(D)(1), which provides that a defendant waives the ability to object to service of process under MCR 2.116(C)(3) unless the objection is raised in the defendant’s first motion or responsive pleading: The grounds listed in subrule (C)(1), (2), and (3) must be raised in a party’s first motion under this rule or in the party’s responsive pleading, whichever is filed first, or they are waived. MCR 2.116(D)(1).


Access Legal Care provides a free legal consultation and affordable legal help for people who want to set aside a default judgment or file a motion for summary disposition (aka motion for summary dismissal).

If you would like us to help you with legal advice or drafting, filing, and/or litigating through the motion process, including preparing a brief in support of your motion in Illinois, Arizona, and Michigan, please schedule a free phone appointment with an attorney at

We hope to be able to help you!