Litigant Can’t Avoid a Dismissal Motion By Merely Claiming it is Premature

A recent case decided by the Michigan Court of Appeals named Naseef v. Wallside Inc., raises a couple legal issues of interest.  A separate post addresses the issue of when a contractor is actually an independent contractor.

One issue to be resolved in this case was whether the plaintiff who filed the case could avoid the defendant’s summary disposition motion for dismissal based upon the claim that discovery was not complete.  The plaintiff could not back up her claim with any evidence, nor could she identify a disputed issue yet to be resolved in discovery. She instead merely asserted that the motion could not yet be decided because the discovery period was still “open.”

Unfortunately for the plaintiff, there is no Michigan Court Rule which bars filing summary disposition motions until discovery is complete.  That may be good practice in many cases, but it is not required.  The party opposing summary dismissal must support that defense with affidavits and documentary evidence.  The plaintiff’s case was dismissed because she could not satisfy this legal burden.

Defendants ordinarily avoid filing a dismissal motion prior to the end of discovery, due to the potential for Plaintiffs defeating the Motion merely by raising a fact issue.  As the ruling in Naseef demonstrates, that does not mean such “early” filings cannot be pursued successfully.  Plaintiffs faced with a Motion to Dismiss prior to the end of discovery must be ready to raise the pertinent facts upon which their case is based, or risk dismissal.