In Anne M. Hanton Trust v. Hantz Financial Services, Inc., No. 314889, the Michigan Court of Appeals held that a plaintiff is not barred from bringing a class action lawsuit by the time limits for class certification under MCR 3.501(B)(1) in a separate lawsuit in which the plaintiff was merely an unnamed putative class member.  Furthermore, because the class was not certified in the prior action, the 91-day clock for filing a motion for class certification never started running for Hanton.
 
Hanton brought a suit alleging that the defendants sold promissory notes to her and others as part of a Ponzi scheme. When she attempted to certify the class of plaintiffs, the defendants argued that she was barred from bringing a class action because of an order entered in a previous suit. Before Hanton brought her action, Raymond Bergin filed suit against the same defendants for the same claims. He failed to make a timely motion to certify the class under MCR 3.501(B)(1) and was left to proceed as an individual.  In their subsequent dismissal order and settlement agreement, Bergin and the defendants agreed that any order by the court regarding Bergin and “those similarly situated . . . shall be deemed final and binding in any refiled case.”
 
The Court of Appeals held that the Bergin order did not bar Hanton’s motion to certify the class.  The defendants argued that Hanton was within the class of “plaintiffs” as defined under MCR 3.501(B)(1) and 2.201(A), and was thus barred from bringing suit.  Not so, said the Court.  Instead, the Court held that “plaintiff” under the relevant court rules did not include Hanton for two reasons: (1) the “the” before “plaintiff” in MCR 3.501(B)(1) indicates that the rule applies only to the person who commenced the civil action (i.e., Bergin, not Hanton); and (2) the class was never certified in Bergin, meaning that Bergin could not have acted as Hanton’s class representative.  The Court then held that Hanton could proceed with her motion for class certification at the trial court.