COMMENTARY: If you want to be heard, you must serve other party

By Marie E. Matyjaszek 

Court motion dockets are held daily, usually grouped by subject matter, giving litigants the opportunity to have their issues heard. Due to my background, my largest involvement surrounds the domestic or family law docket. When the court is hearing the motions, I hold what I call my “disappointment docket,” where I have the unfortunate job of telling individuals that their motion likely won’t be heard that day due to failing to serve the opposing party or attorney.

While service times can vary, I’m focusing on Michigan Court Rule (MCR) 2.119. Pursuant to that rule, service of the written motion, notice of hearing and any briefs, etc. must be served upon the opposing side at least nine days before the hearing if you are mailing it first-class, or at least seven days before the hearing if you serve the other side personally. Personal service is exactly what it sounds like – physically delivering the documents, but also includes electronic service pursuant to MCR 1.109. Parties also can agree to allow service by email.

The key is to ensure you file a proof of service or certificate of mailing with the court, indicating how and when you served the other side. Without that, we don’t have any clue if and when service occurred and the motion can’t be heard if service was not properly effectuated. Many SCAO motion forms have a section for the movant to sign and date that the pleadings were served; however, many people fail to fill this out. It’s also common to have a proof of service for the motion but not the notice of hearing, and both are required.
No proof of service, or service not filed under the timelines required, will win you a spot on my disappointment docket where I will inform you of the deficiency. At times, the other side appears and was actually served despite no proof of service being filed. If everyone appears for the hearing, there is the option to go forward with the motion that day and waive the service issue. Other cases result in adjournments, giving the movant time to get it right.

To have a seamless transition from filing your motion to having it heard in the courtroom, ensure that you follow the court rules to avoid the disappointment of possibly ending up on my docket.
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Marie E. Matyjaszek is a judicial attorney at the Washtenaw County Trial Court; however, the views expressed in this column are her own. She can be reached by e-mailing her at matyjasz@hotmail.com.