When to Respond to a Pleading

Throughout the course of litigation, parties file and serve numerous documents on each other.  One such document is a pleading.  A pleading is a specific type of document defined by MCR 2.110(A).  The term pleading only includes the following: (1) a complaint; (2) a cross-claim; (3) a counterclaim; (4) a third-party complaint; (5) an answer to a complaint, cross-claim, counterclaim, or third-party complaint; and (6) a reply to an answer.  The rule further states that “[n]o other form of pleading is allowed.”

When one is served with a pleading, the natural reaction is to file a response.  However, under MCR 2.110(B), a party is only required to file a response to specifically enumerated pleadings.  These include: (1) a complaint, (2) a counterclaim, (3) a cross-claim, (4) a third-party complaint, and (5) an answer demanding a reply.

A responsive pleading is only required for those pleadings specified in MCR 2.110(B).  However, it is common to encounter a situation where a party demands a response to something that is either not a defined pleading, or not a pleading requiring a response under the Court Rules.  One example is when a defendant demands that the plaintiff respond to his affirmative defenses.

From reading the rules discussed above, it is clear that affirmative defenses are not identified as a pleading under MCR 2.110(A), nor does MCR 2.110(B) require that a party respond to them.  So, how does a party react when served with affirmative defenses that demand a reply?

The Michigan Court of Appeals addressed this issue in the case of McCracken v City of Detroit, 291 Mich App 522; 806 NW2d 337 (2011).  The defendants in this case filed their answer to plaintiffs’ complaint, but it did not include a demand for a reply.  However, defendants also file a separately captioned document attached to their answer, entitled special and affirmative defenses, which did include a demand for an answer.  Plaintiffs did not respond.

Defendants then moved for summary disposition, arguing that by failing to respond to their affirmative defenses, plaintiffs had admitted the truth of those defenses and that defendants were entitled to dismissal of their complaint.  The trial court granted defendants’ motion, and plaintiffs appealed.

The Court of Appeals first discussed the definitions of a pleading, finding that that under “the plain language of [MCR 2.110(A)], affirmative defenses are simply not pleadings…”  McCracken at 526.  The Court then found that that “according to the plain language of MCR 2.110(B), affirmative defenses are not pleadings requiring responses.”  Id. at 527.

Defendants argued that because their affirmative defenses were filed with their answer to plaintiffs’ amended complaint, the entire pleading was a an answer demanding a reply, and thus proper under MCR 2.110(B)(5).  The Court of Appeals disagreed, explaining that while MCR 2.111(F)(3) requires a party to plead affirmative defenses within their responsive pleadings, “they [affirmative defenses] are not synonymous with answers and other pleadings and are defined separately from them within the Michigan Court Rules.”  Id. at 528.

The Court further explained that the exclusive definitions of pleadings under MCR 2.110(A) “does not include affirmative defenses requiring a response.”  Id.  The Court concluded that despite the requirements of 2.111(F)(3), affirmative defenses are not, by themselves, a pleading, nor are affirmative defenses a pleading requiring a reply under MCR 2.110(B).  Id.

Therefore, not every document served on a party constitutes a pleading, and not every pleading requires a response from the party on whom it is served.  Thus, a party must look to the definitions contained within MCR 2.110(A) to determine if the document served upon him is a pleading.  He must then consider whether that pleading is one of those specifically listed within MCR 2.100(B), which require him to respond.

Despite an opposing party’s demand for a reply, a party is only required to respond to the specific pleadings enumerated by the Michigan Court Rules.  As discussed above, affirmative defenses filed with an answer, but distinguished by their own separate caption, do not require a response, even if the filing party demands it.