Wendell MacKey v. Jeff Rising
369212
Mich. Ct. App.May 21, 2025Background
- Plaintiff Wendell Mackey and defendant Jeff Rising were adversaries in local Adrian, Michigan politics; Mackey ran a blog criticizing Rising, a former city commissioner.
- An online dispute in 2017 led Mackey to post negative comments and a photo on Facebook, after which Rising allegedly phoned Mackey’s mother with a threatening message.
- Mackey filed a federal lawsuit in 2020, alleging §1983 First Amendment retaliation and a Fourteenth Amendment violation, asserting Rising acted under color of state law.
- The federal claims were ultimately dismissed; the federal court declined supplemental jurisdiction over proposed state-law tort claims (intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence).
- Mackey then filed the state-law claims in Michigan state court on October 14, 2022.
- The trial court granted summary disposition to Rising on statute of limitations grounds, holding that the prior federal action did not toll the state limitations period, and denied reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statute of limitations was tolled by federal suit | Filing federal lawsuit tolled state claims | Federal suit did not include state claims | No tolling; state claims not tolled by federal action |
| Whether official vs. individual capacity matters for tolling | Parties should be considered the same | Different defendants—official vs individual | Court declined to reach, as claim failed on other grounds |
| Applicability of MCL 600.5856 to non-pending state claims | Filing alone tolls limitation period | Tolling only if claim is pending in action | Tolling statute applies only to pending claims |
| Timeliness considering COVID-19 administrative orders | Limitation period extended by 101 days | No dispute on extension, just not enough | COVID orders extended time, but still untimely |
Key Cases Cited
- Sunset Resort Ass'n, Inc v. Cheboygan Co Road Comm, 511 Mich 325 (Mich. 2023) (de novo review standard for summary disposition)
- Armijo v. Bronson Methodist Hospital, 345 Mich App 254 (Mich. Ct. App. 2023) (standards for MCR 2.116(C)(7) summary disposition)
- Isack v. Isack, 274 Mich App 259 (Mich. Ct. App. 2007) (service of process and personal jurisdiction)
- Mair v. Consumers Power Co, 419 Mich 74 (Mich. 1984) (jurisdiction by consent and tolling)
- Ashley Ann Arbor, LLC v. Pittsfield Charter Twp, 299 Mich App 138 (Mich. Ct. App. 2012) (tolling statute applies when action dismissed for lack of jurisdiction)
- Lenz v. City of Detroit, 376 Mich 156 (Mich. 1965) (seeking different relief in prior action does not toll limitation period on separate claims)