“MCR 2.116(D)(1) requires that the defense of lack of personal jurisdiction ‘be raised in a party's first motion under [MCR 2.116] or in the party's responsive pleading, whichever is filed first, or [it is] waived.’ However, MCR 2.111(F)(3) provides that ‘[a]ffirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118.’” (Robert A Hansen Family Trust v. FGH Industries, LLC (2008) 760 N.W.2d 526, 533 n.7.)
“The plaintiff bears the burden of establishing personal jurisdiction over the defendant.” (Yoost v. Caspari (2012) 295 Mich. App. 209, 222.)
“Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing.” (Yoost v. Caspari (2012) 295 Mich. App. 209, 222.)
“The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.” (Yoost v. Caspari (2012) 295 Mich. App. 209, 222.)
“When examining whether a Michigan court may exercise limited personal jurisdiction over a defendant, this Court employs a two-step analysis.” (Electrolines, Inc. v. Prudential Assurance Co., Ltd. (2003) 260 Mich.App. 144, 167 [internal citations omitted].) “First, this Court ascertains whether jurisdiction is authorized by Michigan's long-arm statute. Second, this Court determines if the exercise of jurisdiction is consistent with the requirements of the Due Process Clause of the Fourteenth Amendment.” (Id.)
“Both prongs of this analysis must be satisfied for a Michigan court to properly exercise limited personal jurisdiction over a nonresident.” (See Green v. Wilson (1997) 455 Mich. 342, 350–351.)
“Long-arm statutes establish the nature, character, and types of contacts that must exist for purposes of exercising personal jurisdiction. Due process,on the other hand, restricts permissible long-arm jurisdiction by defining the quality of contacts necessary to justify personal jurisdiction under the constitution.” (Yoost v. Caspari (2012) 295 Mich. App. 209, 222-23 citing id. at 348.)
“While it is true that the plaintiff has the burden of establishing jurisdictional facts, a motion for summary disposition based on lack of personal jurisdiction must be resolved on the evidential support submitted by both parties.” (Elsey Son v. American (1991) 191 Mich. App. 146, 148 citing MCR 2.116(C)(1) and (G)(5); Gooley v. Jefferson Beach Marina, Inc. (1989) 177 Mich. App. 26.)
The court of appeals “reviews a trial court's grant or denial of summary disposition de novo.” (Electrolines, Inc. v. Prudential Assurance Co. (2004) 260 Mich. App. 144, 163 [internal citiations omitted].) “Likewise, [the]Court reviews de novo a trial court's jurisdictional rulings....” (Electrolines, Inc., supra, 260 Mich. App. at 163.)
“The governing court rule provides that whether a court lacks jurisdiction over the person or property is a ground that ‘must be raised in a party's first motion under this rule or in the party's responsive pleading, whichever is filed first, or [it is] waived.’” (Electrolines, Inc. v. Prudential Assurance Co. (2004) 260 Mich. App. 144, 163-64 citing MCR 2.116(D)(1).) “Further, a party waives an affirmative defense unless the defense is set forth in its first responsive pleading.” (Id., citing MCR 2.111(F).) “The term ‘pleading’ includes a complaint, a counterclaim, a third-party complaint, an answer to one of the above, or a reply to an answer. (Id., citing MCR 2.110(A).)
“In Fitzwater v. Fitzwater, the Court [of Appeals] held that a Michigan trial court did not have personal jurisdiction over the defendant father in an action to modify child support where he was served in Texas and had no contact at all with Michigan. (Fitzwater, infra, pp. 93, 100.) However, [the] Court noted in a footnote that, had the respondent been served while present in Michigan, personal jurisdiction would have been obtained under MCL 600.701 [and] MSA 27A.701.” (Haefner v. Bayman (1988) 165 Mich. App. 437, 441 citing Fitzwater v. Fitzwater (1980) 97 Mich. App. 92; p. 98, n 3.)
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