Bin Kang Phd v. Jianming Li Phd ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
BIN KANG, PH.D., UNPUBLISHED
January 24, 2017
Plaintiff-Appellant,
v No. 329518
Washtenaw Circuit Court
JIANMING LI, PH.D., LC No. 15-000271-CK
Defendant-Appellee.
Before: M. J. KELLY, P.J., and STEPHENS and O’BRIEN, JJ.
PER CURIAM.
The trial court dismissed this case after plaintiff Bin Kang failed to serve a second
summons and complaint on defendant Jianming Li before the summons expired. Kang appeals
as of right, and for the reasons stated in this opinion, we affirm.
I. BASIC FACTS
On March 16, 2015, Kang filed a complaint alleging that Li was liable for breach of
contract, fraud, and retaliation. In an ex parte affidavit, Kang asserted that he was indigent and
unable to pay the fees and costs. As a result, the same day that the complaint was filed, the trial
court entered an order finding that Kang was indigent and waiving the payment of fees and costs
under MCR 2.002(D). The court also issued a summons that was set to expire on June 16, 2015.
Before the June 16, 2015 expiration of the summons, Kang filed a motion for an
extension of time to serve the summons. The clerk of the court, however, erroneously rejected
the filing for failure to pay the required motion fee, and on July 8, 2015, the circuit court entered
an order dismissing the case for failure to timely serve Li with process. One day later, on July 9,
2015, the circuit court entered an order granting Kang a second summons. The circuit court
explained in its order that the clerk of the court had improperly rejected Kang’s motion for an
extension because the court had granted a fee waiver based on indigency. The court noted that
although Kang had requested an extension of the summons, MCR 2.102(D), the applicable court
rule, only permitted the court to issue a second summons. Accordingly, the court treated Kang’s
motion as a motion for a second summons and ordered that the second summons would expire on
September 16, 2015. Moreover, in a later order, the court set aside the dismissal for failure to
timely serve the summons.
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On September 15, 2015, one day before the second summons was set to expire, Kang
filed another motion asking the circuit court for more time to serve Li with the summons because
he “cannot afford the serve cost.” Kang attached what appears to be a copy of a September 11,
2015 email that he sent Li’s lawyer. In the email, Kang stated that he was moving for a second
extension of time to serve the summons because he “was in [a] hospital for a while” and was not
sure when his “status will be good enough to handle the new case.” Kang also filed a motion to
waive his presence at a hearing on his motion for an extension of time to serve the second
summons. In the motion, he asserted that he was in the hospital and that his discharge date was
undetermined because of mental and physical disorders caused by “Defendants.”
On September 16, 2015, the trial court entered an order denying Kang’s motion for the
issuance of an additional summons. Citing MCR 2.102(D), the court noted that it only had
authority to issue a second summons, not a third summons. The court reasoned that because it
had already done so, it had no authority to grant a new summons or extend the expiration of the
second summons. Moreover, because Kang had failed to timely serve Li with the second
summons before its expiration, the trial court again dismissed the case for failure to timely serve
the summons. This appeal follows.
II. MCR 2.102(D)
A. STANDARD OF REVIEW
Kang argues that the circuit court erred in dismissing his complaint. This Court reviews
de novo “interpretation and application of court rules.” McAuley v Gen Motors Corp, 457 Mich.
513, 518; 578 NW2d 282 (1998), overruled in part on other grounds by Rafferty v Markovitz,
461 Mich. 265, 273 n 6; 602 NW2d 367 (1999).
B. ANALYSIS
Kang argues that the trial court should have either extended the second summons “for a
long time (not exceeding 1 year from the date the complaint is filed)” or should have “issued the
third summons.” MCR 2.102(D), which addresses the expiration of a summons, provides in
relevant part:
A summons expires 91 days after the date the complaint is filed.
However, within those 91 days, on a showing of due diligence by the plaintiff in
attempting to serve the original summons, the judge to who the action is assigned
may order a second summons to issue for a definite period not exceeding 1 year
from the date the complaint is filed. If such an extension is granted, the new
summons expires at the end of the extended period. The judge may impose just
conditions on the issuance of the second summons. . . .
Based on the plain language of the court rule, the trial court had no authority to issue a third
summons. As such, the trial court did not err when it refused to grant a third summons. See
Hyslop v Wojjusik, 252 Mich. App. 500, 508; 652 NW2d 517 (2002) (stating that MCR 2.102(D)
“does not provide any authority, either express or implied, to issue a ‘third’ summons or to
extend the life of the second.”).
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Further, although the trial court had discretion to allow for a later expiration date on the
second summons, it was not required to do so because nothing in the court rule requires a court
to issue a second summons for the maximum period of time permitted under the court rule. It
only indicates that the life of the summons cannot “exceed[ ] 1 year from the date the complaint
is filed.” MCR 2.102(D). Nevertheless, Kang argues that the trial court should have issued a
longer second summons because he was incarcerated from April 1, 2015 through February 12,
2016 in Philadelphia, Pennsylvania. However, in the proceedings before the circuit court, Kang
never requested a full year from the date of his complaint to serve the second summons. He only
asked for an “extension of summon.” Moreover, his request was based on financial hardship, not
his alleged incarceration. As such, the trial court did not err when issuing the second summons
for less than the maximum period allowed under MCR 2.102(D).
Affirmed.
/s/ Michael J. Kelly
/s/ Cynthia Diane Stephens
/s/ Colleen A. O'Brien
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