Amended complaints; Amendment as a matter of course; MCR 2.118(A)(1); Badeen v PAR, Inc; Motion to strike; MCR 2.115(B); Service of process; MCR 2.105; Summons; MCR 2.102(E)(1); Dismissal for failure to comply with court rules; MCR 2.504(B)(1); Improper service; MCR 2.105(K)(3); Hill v Frawley; Complete failure of service; Holliday v Townley

The court held that plaintiffs properly amended their complaints as a matter of right and that service of the amended complaints with the original summonses did not warrant dismissal. In four sewage-flooding actions, plaintiffs filed original complaints in four trial courts, and summonses were issued. Before serving defendants or allowing the summonses to expire, plaintiffs filed amended complaints without leave of court or defendants’ consent and then served the amended complaints with the original summonses. The Southfield trial court struck the amended complaint and dismissed that case, the Beverly Hills trial court struck the amended complaint but did not dismiss, and the Royal Oak and Birmingham trial courts declined to strike or dismiss. On appeal, the court first held that MCR 2.118(A)(1) permitted plaintiffs to amend before defendants served responsive pleadings. Relying on Badeen, it reasoned the rule sets “an outer boundary” on when amendment by right may occur but “does not require the filing of a responsive pleading by an adverse party before that right is triggered.” The court rejected defendants’ argument based on prior court-rule language because nothing showed the Supreme Court intended to make the right to amend “contingent on the opposing party.” The court next held that service was proper because the amended complaints superseded the originals, and there was “no basis to conclude” the court rules prohibit service of a properly amended complaint with the original summons during the summons’s life. It further held that even if service was technically improper, MCR 2.105(K)(3) barred dismissal because defendants received notice of the actions and the circumstances did not amount to “a complete failure of service.” Affirmed in part, reversed in part, and remanded.