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STATE OF MICHIGAN
COURT OF APPEALS


FENTON MCKENZIE, Plaintiff-Appellant, v FORD MOTOR COMPANY, MILAN PLASTICS PLANT, Defendant-Appellee.

UNPUBLISHED May 16, 1997

No. 189688 Washtenaw Circuit Court LC No. 93-535-CL

Before: Cavanagh, P.J., and Reilly, and C.D. Corwin*, JJ. PER CURIAM. Plaintiff appeals as of right a circuit court order granting summary disposition in favor of defendant. The court held that a provision in the collective bargaining agreement between defendant and the union representing plaintiff required arbitration of plaintiff's civil rights claims. We conclude that defendant waived any right to arbitrate these claims and reverse. Plaintiff filed his complaint on April 27, 1993. In its answer filed July 9, 1993, defendant stated as an affirmative defense that plaintiff's claims are "pre-empted in whole or in part by the collective bargaining agreement." The record indicates that for the next twenty months after the answer was filed, defendant took no action suggesting an assertion of a right to arbitrate plaintiff's claims. Defendant attempted to take plaintiff's deposition, and when he failed to appear, sought dismissal and costs.1 The record also indicates that the parties exchanged interrogatories. A pre-trial summary statement prepared by defendant and submitted to the court does not mention arbitration. Rather, it states that the estimated length of trial was sixteen days and that the case would be a jury trial. Attached to the document was lengthy list of potential witnesses for defendant. According to a pre-trial summary statement signed by the circuit court judge on December 29, 1993, trial was originally scheduled for September 12, 1994. Mediation took place July 27, 1994. When plaintiff sought leave to amend the complaint in July, 1994, defendant opposed the motion, arguing, "Defendant cannot, in the short time prior to trial, investigate, take discovery, and otherwise prepare to defend against the proposed new claims." The final

* Circuit judge, sitting on the Court of Appeals by assignment. -1

settlement conference was held on September 12, 1994, immediately before jury selection was to take place. At that time, it was discovered that the complaint served on defendant did not contain the breach of contract claim that was included in the complaint filed with the court. On the basis of the breach of contract claim, defendant asserted that the federal court had jurisdiction pursuant to

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