Motion to Dismiss For Want of Prosecution/No-Progress Dismissal in Michigan

Background

MCR 2.502(A)(1) provides that:

“On motion of a party or on its own initiative, the court may order that an action in which no steps or proceedings appear to have been taken within 91 days be dismissed for lack of progress unless the parties show that progress is being made or that the lack of progress is not attributable to the party seeking affirmative relief.” (Id.)

General Information for Complaints and Motions

Grounds for dismissal for failure to prosecute or “no-progress” may be based on:

• Failure to conduct discovery during the duration of the case in the trial court;
• responded to discovery requests only after motions or orders to compel or for sanctions were filed against counsel;
• failure to comply with court orders concerning the case; or
• waiting for an extended period of time after a no-progress dismissal to file a motion to reinstate.

(See, e.g., Bolster v. Monroe County Board of Road Commissioners (1991) 192 Mich. App. 394, 399-400 [finding no abuse of discretion in the trial court's dismissal of the case.]; citing also, Marquette v. Fowlerville (1982) 114 Mich. App. 92, 97; Robinson v. Washtenaw Circuit Judge (1928) 242 Mich. 548, 551.)

Cases That May Not Be Dismiss for No-Progress

Cases with an unexpired scheduling order, and those set for conference, alternative dispute resolution, hearing or a trial may not be dismissed for lack of progress. (See, MCR 2.502(A)(2).)

The trial court is required to give 28 days notice in the manner proscribed in MCR 2.501(C). (See, MCR 2.502(A)(3).)

If, after the court provides notice of no progress, a party fails to make the required showing that progress is being made or lack of progress is not attributable to the party seeking relief, the trial court may dismiss the case without prejudice for lack of progress. (See, MCR 2.502(B)(1).)

Standard of Review and Burdens of Proof

A trial court's decision to dismiss a case for lack of progress is reviewed for an abuse of discretion. (See, Eliason Corp, Inc. v. Dep't of Labor (1984) 133 Mich. App. 200, 203-204.)

The Court’s Decision

In Bolster v. Monroe County Board of Road Commissioners, the court held that “the trial court did not abuse its discretion in either entering a no-progress dismissal on [plaintiff's] claim or in refusing to reinstate her claim.” The court based it's decision on the fact that “[p]laintiffs failed to show that they were making progress in the case or that failure to prosecute was not due to their own fault or lack of reasonable diligence.... Further, they did not make a showing of good cause to reinstate the case.” (Bolster v. Monroe County Board of Road Commissioners (1991) 192 Mich. App. 394, 399 citing MCR 2.502(C); Gerbig v. White Motor Credit Corp. (1987) 165 Mich. App. 372, 373-374; Hoad v. Macomb Circuit Judge (1941) 298 Mich. 462, 468; MCR 2.502(B)(1).)

“[I]n Michigan practice, an involuntary dismissal due to plaintiff's failure to comply with the court rules or any order of the court will operate as an adjudication on the merits unless the order of dismissal provides otherwise. (GCR 1963, 504.2.) While a ministerial ‘no-progress’ dismissal might not constitute an adjudication on the merits, a dismissal on motion of the defendant and by order of the court, after judicial consideration, would most likely be considered an adjudication on the merits.” (Carter v. Semta (1984) 135 Mich. App. 261, 265 citing Caughey v. Rozycki (1970) 22 Mich. App. 317; Corley v. Krawczak (1971) 34 Mich. App. 472; Green v. Wayne Soap Co. (1971) 33 Mich. App. 74.)