author: DAVID S. PORTER, Senior District Judge:

text:
    Paul D. DICHTER, Plaintiff, v. DISCO CORPORATION, James R. Cash and B.W. Morris, Defendants.
    No. F J 153.
    United States District Court, S.D. Ohio, W.D.
    Feb. 3, 1984.
    Dennis J. Buckley, Cincinnati, Ohio, for plaintiff.

      Michael G. Kohn, Cincinnati, Ohio, for B.W. Morris.
   MEMORANDUM AND ORDER

DAVID S. PORTER, Senior District Judge:

I. Introduction

This case is before the Court on plaintiffs motion for a conditional order of revivor (doc. 12), defendant B.W. Morris’s response (doc. 15) and plaintiff’s reply memorandum (doc. 17). Because of the novelty of the issues presented, some of which appear to be of first impression, we heard argument on the motion on November 21, 1983.

We determine that plaintiff’s motion for a conditional order of revivor should be granted. Our reasons will be set out in detail, but first it is in order to review the unusual history of this case.

On August 5, 1964, United States District Judge Sarah Hughes of the Northern District of Texas, Dallas Division, entered judgment on behalf of plaintiff and against defendants, including B.W. Morris, in the amount of $377,500.00. That judgment was based upon defendants “having appeared in open [court] to confess judgment and by written stipulation ... having confessed judgment.” Dichter v. Disco, et al., Civil No. CA-3-63-392 (N.D.Texas, August 5, 1964).

On August 19, 1964 — two weeks after the entry of judgment in Texas — plaintiff filed a certified copy of that judgment in the Eastern Division of this Court, at Columbus, Ohio. Dichter v. Disco, Misc. No. 217 (S.D.Ohio, filed August 19, 1964). Plaintiff’s filing of the judgment entry in Columbus was done pursuant to 28 U.S.C. § 1963, which provides:

A judgment in an action for the recovery of money or property now or hereafter entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.

The record does not reflect what transpired in this case between 1964 and 1983. However, the judgment was never collected, nor does it appear that any enforcement proceedings were attempted against this defendant.

In recent months, plaintiff determined that defendant Morris resided in the Cincinnati area. Unaware of the registration of judgment in this District, plaintiff filed a motion for a judgment debtor examination in an attempt to enforce the Texas judgment (doc. 1). The propriety of permitting plaintiff to proceed as he wished was heavily litigated (docs. 2-10), and in that process, plaintiff discovered the registered judgment and changed the focus of his case to an attempt to revive the Ohio judgment pursuant to Ohio law. At argument, plaintiff indicated his wish to proceed only on the motion for a conditional order of revivor.

Defendant responded to the motion to revive, raising a number of arguments including failure of jurisdiction, failure to comply with the correct Ohio procedures, the statute of limitations, improper registration, and presumption of payment.

II. 28 U.S.C. § 1963

The statute is clearly a novel one, and has not been extensively construed in the reported cases. However, it\is clear from the cases and the legislative history that the statute is a streamlining device which provides “rapid-track enforcement for judgments most amenable to that treatment.” In Re Professional Air Traffic Controllers Organization, 699 F.2d 539, 545 (D.C.Cir.1983). As noted by the Sixth Circuit,

[t]his statute has been held to have been adopted to protect both judgment creditors and judgment debtors from the additional cost and harassment of further litigation which otherwise would be incident to an action on the judgment in a foreign district.

Ohio Hoist Manufacturing Co. v. LiRocchi, 490 F.2d 105, 107 (6th Cir.), cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974) (citations omitted). Stated another way,

The purposes of § 1963 were to simplify and facilitate the enforcement of federal judgments, at least those for money, to eliminate the necessity and expense of a second lawsuit, and to avoid the impediments, such as diversity of citizenship, which new and distinct federal litigation might otherwise encounter.

Stanford v. Utley, 341 F.2d 265, 270 (8th Cir.1965) (citations omitted).

It is, we believe, clear that the statute was enacted with an eye toward providing as much assistance to judgment creditors as is consistent with the demands of the Constitution; that is, Congress intended to provide-as much steamlining of inter-district enforcement proceedings as its authority permitted. We are thus called upon to determine not only whether plaintiffs motion is within the purview of the statute, but whether reading the statute to permit revival of the Ohio judgment would, in this case, violate the due process clause of the Constitution. We are, however, disposed by the strong policy of enforcing the judgments of our sister courts to read the statute as broadly as the Constitution permits.

With that background, we turn to the issues raised by defendant in seeking to avoid revival of the judgment.

III. The “expiration of time for appeal” clause

Defendant asserts that the plain language of § 1963 requires us to hold that the judgment was prematurely registered in this District; that no valid judgment of this District was created because of that prematurity; and that, therefore, there is nothing to revive.

It is, of course, true that the language of the statute prevents the filing of a judgment in another district until it “has become final by appeal or by expiration of time for appeal.” 28 U.S.C. § 1963. However, the cases have uniformly held that where judgment was entered by consent, there was, viewing the matter practically, no right to appeal, and that the purpose of the statute would be frustrated by permitting judgment debtors by consent to avoid liability under a registered judgment by seeking shelter behind the clause. Air Traffic Controllers, 699 F.2d at 544 n. 19; Stanford v. Utley, 341 F.2d at 271; Hadden v. Rumsey Products, Inc., 196 F.2d 92, 94-96 (2d Cir.1952). In the Air Traffic Controllers case, the court concluded that, while the “time for appeal” clause was to be given full effect in a case where an appeal had been filed unsupported by a supersedeas bond, permitting immediate registration of a judgment by consent was a “common sense alignment of a judgment never amenable to appeal with a judgment no longer amenable to appeal.” 699 F.2d at 544 n. 19.

Defendant tries to overcome the weight of this authority by arguing that he might have had a right to appeal from the consent judgment in this case, because he entered into the consent decree based upon representations by plaintiffs then-counsel to the effect that no attempt would be made to enforce the judgment as against him. This allegation is supported to some extent by an affidavit from Morris's attorney in the Texas case.

It is not necessary to decide defendant’s claim that he consented to the Texas judgment on the strength of oral promises of plaintiff’s Texas counsel that there would be no attempt to enforce the judgment as to him. We discuss infra the relief that may be available to the defendant in the event he can prove his claim. However, we conclude that the facts alleged do not constitute a defense to a motion for a revivor.

Defendant asserts that, if there had been an attempt to collect the judgment immediately after its rendition, he would have had a right to appeal because of the alleged oral promise that the consent judgment would not be enforced against him. We disagree and conclude there is no reason not to revive the judgment because, like the one in Stanford, it was “never amenable to appeal.” Hence, the statute is fully applicable here.

IV. Due Process

Defendant agrees that § 1963 is constitutional on its face, but claims that it is unconstitutional as the plaintiff seeks to apply it here. First, he asserts that where, as here, the statute of limitations on revival of actions in the court of registration is arguably more favorable to plaintiff than the parallel state statute which would apply in the court of rendition, he is, in effect, being denied the “benefit of the bargain” he struck with plaintiff in consenting to entry of judgment in Texas. This argument fails, again on the basis of Stanford v. Utley. There, Judge (now Justice) Blackmun was faced with the following situation. A consent judgment had been rendered in federal district court in Mississippi; on the day after rendition, the judgment was registered, pursuant to § 1963, in federal district court in Missouri. Seven and one-half years later, plaintiff sought enforcement of the Missouri judgment. The judgment was void in Mississippi pursuant to that state’s law, which provided a seven year period for enforcement of judgments. However, Missouri provided a 10-year period for enforcement. In resolving the situation before him, which is quite similar on this issue to the case at bar, Judge Blackmun wrote that

For the present fact situation and for enforcement purposes, the Missouri federal registration equated with a new Missouri federal judgment on the original Mississippi federal judgment, that is, it is no different than a judgment timely obtained by action in Missouri federal court on that Mississippi judgment. It follows from this that the Missouri ten year period of limitations ... and not the Mississippi seven year period, applied so far as enforcement is concerned, and that execution proceedings by the plaintiff within the Missouri period, and otherwise proper, are not subject to dismissal.

Stanford, 341 F.2d at 268. Defendant properly points out that Stanford v. Utley, being an Eighth Circuit case, is not binding on this Court. However, even had Stanford not been written by such an eminent jurist, we think its reasoning and result are in accordance with the purpose of the statute. It is difficult to accept that defendant had any consideration of the period within which he might be liable on the judgment against him in mind when he entered into the consent decree. If he did, his mistake was one of law and is irrelevant to our determination today.

Defendant’s other due process challenge appears to be a question of first impression. It is undisputed that defendant had no property, nor did he reside, in this District when the judgment was registered in Columbus. It is fundamental that it offends the Constitution for a court to entertain an original action where it has no personal jurisdiction over the parties thereto. Thus, plaintiff argues, the Ohio judgment, when entered, was void ab initio because the courts of this District had no jurisdiction over him. He further argues that because only a judgment which was valid when entered can be revived, the instant motion should be denied.

We disagree. Defendant’s argument is essentially that regardless of the correctness of Stanford v. Utley and other cases which have broadly interpreted § 1963, it would be unconstitutional to apply the statute to permit revivor in this instance. We need not decide whether, as plaintiff asserts, “constitutional principles are applicable to the registration of judgments and ... under certain circumstance [sic] the registration of a Judgment [sic] pursuant to the lateral language of 28 U.S.C. § 1963 may be unconstitutional.” Letter of Defense Counsel dated December 1, 1983, at 2. We conclude that, while there may well be constitutional limitations on registration of judgments under the statute, personal jurisdiction in the court of registration upon the date of registration is not one of them.

We note in this regard the following:

It may be suggested that by authorizing the judgment-creditor to enforce his judgment through registration in other districts, as an alternative to an action on the judgment, substantive rights are conferred upon him, venue requirements are altered, and the jurisdiction of the district court is enlarged. But in purpose and effect the registration of judgments in other districts is only a more convenient and effective method of enforcing them according to their original terms.

2 Moore’s Federal Practice II 1.04[2] at 223 (1967). Defendant properly notes that Moore also states that “[i]f the registration of the judgment were to effect such a change in its character that the right asserted by the litigant and established in the judgment would be enlarged by the registration, and he might obtain in satisfaction of the registered judgment more than he would have been entitled to under the terms of the original judgment, then registration would affect a substantive right.” Id. at 223-24. Defendant asserts that this covers the instant case; because the judgment would arguably be uncollectible under Texas law, to permit its collection under Ohio law when this Court had no jurisdiction over defendant in 1964 would be enlarging the judgment.

It is widely accepted that § 1963 “is more than ‘ministerial’ and is more than a mere procedural device for the collection of the foreign judgment.” Stanford, 341 F.2d at 268. We do not view this as being in conflict with Moore’s analysis of the statute. He notes that “[w]ith respect to jurisdiction requirements, the federal statutes pertaining thereto are applicable only to original actions brought in the federal courts.” Moore’s Federal Practice, supra at 224. Defendant asserts that he had a constitutional right to have the judgment, into which he willingly and with assistance of counsel entered, interpreted only under the law of Texas. We disagree. Had registration occurred in a district where the relevant state law would be more restrictive than that of Texas, he would benefit from the terms of the statute; here, it works to his detriment. However, we cannot conclude that the Texas statutes pertaining to enforcement were encompassed by “the right asserted by [plaintiff] and established in the judgment,” or that, even though collection is now sought under the Ohio statutes, plaintiff is thereby able to “obtain in satisfaction of the registered judgment more judgment.” The crux of the matter is this: defendant agreed to subject himself to liability under the terms of the consent judgment and the debt has gone unsatisfied. He obtained the process that was due him in the Texas action, and our lack of personal jurisdiction in 1984 is simply irrelevant.

Y. The Ohio Revivor Statute

Under Ohio law, “[w]hen a judgment ... is dormant ... such judgment may be revived ... by action in the court in which such judgment was rendered.” Ohio Rev. Code Ann. § 2325.15, 17-18 (Page’s 1981).

Defendant raises two procedural objections, based on Ohio law, to revivor in this Court. First, defendant argues that Rule 25(A)(1), Ohio R.CiwP., precludes revivor. We disagree. The Rule provides, in its entirety, as follows:

(A) Death.
(1) If a party dies and the claim is not thereby extinguished, the court shall, upon motion, order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 through Rule 4.6 for the service of summons. Unless the motion for substitution is made not later than ninety days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
In this case, no one died.

Defendant’s other objection is that the motion for a conditional order of revivor has been brought in the Western Division of the Southern District of Ohio, while the judgment was registered in the Eastern Division of the district. We note that the two divisions of the Southern District of Ohio are one court. See 28 U.S.C. § 115. More to the point, if we were to consider this objection well taken, we would not deny the motion, but would transfer it for decision to the Eastern Division of the Court. At hearing, defendant stated that he would not urge the Court to order such a transfer. We therefore decline to do so, and do not see the requirement that the motion be brought in the court of rendition as an obstacle to its disposition here.

VI. Defendant’s Right to Challenge the Judgment

In Stanford, the court reserved the question, “[djoes the registration court have power, under Rule 60, [Fed.R.Civ.P.], to correct the registered judgment?” 341 F.2d at 271. The question was addressed by the court in United States ex rel. Mosh-er Steel Company v. Fluor Corporation, 436 F.2d 383, 384-85 (2d Cir.1970) (citations omitted):

The powers of a district court to grant relief against a judgment registered there under 28 U.S.C. § 1963 have not been comprehensively delineated. That it may grant relief in certain circumstances seems clear ____ Few would argue, however, that the court of registration lacks discretion in appropriate circumstances to refer the parties to the court which rendered judgment ____ [T]he analogy to the federal courts’ traditional forum non conveniens procedure is persuasive.

Similarly, in Fuhrman v. Livaditis, 611 F.2d 203, 205 (7th Cir.1979), the court approved the process of transferring a case where judgment had been registered to the court of rendition, noting that

[wjhile we do not conclude that a registering court presented with a motion for relief from judgment based on lack of personal jurisdiction [in the court of rendition] must in every instance defer to the court which originally issued the judgment, such deference is not an abuse of discretion.

We note the various possibilities regarding relief from judgment neither as an endorsement of either possibility nor as a suggestion that defendant is entitled to such relief. Indeed, we think it highly unlikely that either this Court or the Texas court would look favorably upon any such motion. However, it is our view that defendant should have an opportunity to make whatever challenges to enforcement of the judgment as may be authorized by the Rule. See Hadden, 196 F.2d at 96.

Plaintiff’s motion for a conditional order of revivor is granted, as he has met his burden of demonstrating his entitlement thereto. The Clerk of this Court is asked to consolidate this case with Dichter v. Disco, Mise. No. 217, and the case will proceed in this Division under that caption.

SO ORDERED.

      . The scant legislative history of § 1963 is appended to the court's decision in Ohio Hoist Manufacturing Co. v. LiRocchi, 490 F.2d 105, 108-09 (6th Cir.), cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974).

      . In this regard, however, we note that while it may be true that “a consent decree is in many respects a contract between the parties thereto," United States v. City of Jackson, Mississippi, 519 F.2d 1147, 1151 (5th Cir.1975), citing United States v. ITT Continental Banking Company, 420 U.S. 223, 236-37, 95 S.Ct. 926, 934-35, 43 L.Ed.2d 148 (1975), such a judgment "has the same force and effect as any other judgment until set aside in the manner provided by law,’ and “embrace[s] all of the attributes commonly accorded a judgment, as much so as if it had been the result of litigation.” United States v. Kellum, 523 F.2d 1284, 1287 (5th Cir.1975).

      . Under the Rules of this Court, the only papers permitted regarding a motion are the motion itself, a timely response, and a timely reply: "No additional memoranda beyond those enumerated above will be permitted, except upon leave of Court for good cause shown.” Rule 4.0.2, S.D.Ohio (1981). However, because the Court sought defendant’s response to an assertion contained in 1 Moore's Federal Practice ¶ 1.04[2] at 223 (1967), we have considered defendant’s December 1, 1983 letter, and have instructed that it be docketed and filed with the other papers in this case. Our resolution of this matter obviates the need to provide plaintiff an opportunity to respond to that letter.


source: Caselaw Access Project

author: DAVID L. RUSSELL, District Judge.

license: Public Domain

text:
    Mary B. DUCKETT, Plaintiff, v. ALLSTATE INSURANCE COMPANY, a foreign corporation, Defendant and Third Party Plaintiff, v. Dale L. CHEEK, Third Party Defendant.
    No. CIV 83-1815-R.
    United States District Court, W.D. Oklahoma.
    March 7, 1984.
    See also, D.C., 606 F.Supp. 728.
    James F. Self, Jr., Culp, Heath & Sushnik, Oklahoma City, Okl., for plaintiff.
    Kenneth R. Webster, McKinney, Stringer & Webster, Oklahoma City, Okl., Michael R. Chaffin, Huckaby, Fleming, Frailey & Chaffin, Chickasha, Okl., Barry R. Davis, Lee, Beuch & Davis, Oklahoma City, Okl., for defendants.
   ORDER

DAVID L. RUSSELL, District Judge.

The Plaintiff, Mary B. Duckett, brought this action against her insurer, Allstate Insurance Company, to recover damages suffered in an automobile accident with the third party Defendant, Dale L. Cheek. Duckett has since filed this Motion for Partial Summary Judgment in her favor.

The basis of Duckett’s motion is her assertion that a “limits of liability” clause in an automobile insurance policy is unenforceable under Oklahoma law inasmuch as the clause prohibits “stacking” of several medical payment provisions purchased by the insured. Allstate attacks this proposition by noting that the Supreme Court of Oklahoma has never directly addressed the issue of “stacking” of medical payment provisions; instead, that Court has addressed only the issue of “stacking” uninsured motorist coverage provisions. Allstate argues that “med pay” provisions are sufficiently distinguishable from uninsured motorist coverage that an analogy cannot be drawn between the two.

The Court concludes that the Plaintiff’s point of view represents the rule of law to be applied in this case. Limitations in insurance policies are unenforceable, to the extent that they prohibit “stacking” of uninsured motorist coverage provisions, under Oklahoma law. See e.g., Keel v. MFA Insurance Co., 553 P.2d 153, 156 (Okl.1976). This Court cannot perceive a meaningful distinction between a “med pay” provision and uninsured motorist coverage for purposes of “stacking”, since the issue in either case is whether the insurer can unjustly “avoid liability by asserting other insurance clauses denying the insured from receiving that for which he has paid a premium”. Aetna Casualty and Surety Co. v. State Board for Property and Casualty Rates, 637 P.2d 1251, 1256 (Okl.1981). Further, the Oklahoma Supreme Court has addressed the “med pay” issue, although indirectly; that Court has held that excess clauses governing “med pay” provisions, while permissible under statute, are nevertheless subject to the rule in Keel that “stacking” may not be prohibited by the clause. Aetna, 637 P.2d at 1256. Thus, the Court concludes that policy limitations prohibiting “stacking” of medical payment provisions are unenforceable under Oklahoma law.

Nevertheless, the Court is of the opinion that partial summary judgment is inappropriate in this case. Duckett and Allstate are in disagreement as to the number of cars covered by “med pay” provisions; Duckett claims that there are six (for a “stacked” amount of $6,000), while Allstate asserts that there are only five. Thus, the Court cannot determine the amount to which Duckett is entitled as a matter of law. There being a factual dispute as to this issue, summary judgment is inappropriate. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Ando v. Great Western Sugar Co., 475 F.2d 531 (10th Cir.1973).

Accordingly, the Plaintiff’s Motion for Partial Summary Judgment is denied.


author: DAVID L. RUSSELL, Judge.

text:
    Mary B. DUCKETT, Plaintiff, v. ALLSTATE INSURANCE COMPANY, a foreign corporation, Defendant and Third Party Plaintiff, v. Dale L. CHEEK, Third Party Defendant.
    CIV 83-1815-R.
    United States District Court, W.D. Oklahoma.
    March 18, 1985.

      James F. Self, Jr., Culp, Heath & Sushnik, Oklahoma City, Okl., for plaintiff.
    Kenneth R. Webster, McKinney, Stringer & Webster, Oklahoma City, Okl., Michael R. Chaffin, Huckaby, Fleming, Frailey & Chaffin, Chickasha, Okl., Barry R. Davis, Lee, Beuch & Davis, Oklahoma City, Okl., for defendant.
   ORDER

DAVID L. RUSSELL, Judge.

The Plaintiff in this action, Mary Duckett, was injured in an automobile accident allegedly caused by the negligence of the third party Defendant, Dale Cheek. Duckett brought suit against her automobile insurance carrier, the Defendant Allstate Insurance, alleging, inter alia, that Cheek was an uninsured motorist. Allstate impleaded Cheek as third party Defendant pursuant to Fed.R.Civ.P. 14. Subsequently, Duckett amended her Complaint to state claims against both Allstate and Cheek. Motions for Partial Summary Judgment have been filed by Duckett and Allstate, and the Court is now prepared to dispose of those motions as well as other motions pending in the action.

Duckett’s First Amended Complaint contained three separate claims for relief. The first, a negligence cause of action, was asserted against Cheek, the party whose negligence allegedly caused the accident in which Duckett was injured. Duckett and Cheek concluded a settlement agreement, and this claim was dismissed with prejudice. The second claim for relief, asserted against Allstate, alleged that Cheek was an uninsured motorist and made demand upon Allstate under the uninsured motorist provisions of Duckett’s policy. Duckett subsequently discovered that Cheek was neither uninsured nor underinsured and withdrew this second claim. Withdrawal of this claim obviates the need to consider Allstate’s third party claim, as it is premised upon Allstate’s potential liability under the uninsured motorist provisions of the policy. Therefore, Allstate’s third party Complaint is dismissed.

Thus, there remains but one claim for relief pending in this action: Duckett’s claim against Allstate for failure to deal fairly and in good faith with Duckett, its insured under the policy. E.g., Christian v. American Home Assurance Co., 577 P.2d 899 (Okla.1978). In support of this claim Duckett alleges that Allstate wrongfully refused to stack separate “med pay” provisions contained in the policy issued by Allstate to Duckett. Rather than a stacked amount of five thousand dollars, to which Duckett contends she is entitled, Allstate offered her only one thousand dollars, the maximum amount payable under the med pay provision applicable to the vehicle in which Duckett was injured.

This Court has previously determined that Allstate is required to stack the med pay provisions applicable to all of Duckett’s vehicles, the prohibition against stacking contained in the policy notwithstanding. Duckett v. Allstate Insurance Co., 606 F.Supp. 727, 728 (W.D.Okla.1984). However, the Court declined to grant par-However, the Court declined to grant partial summary judgment in Duckett’s favor, noting the existence of factual issues. Id. at 728. Those factual issues have now been resolved; there is no longer any dispute that there are but five med pay provisions to stack or that Duckett’s injuries exceed the stacked amount. Thus, Duckett is entitled to partial summary judgment in her favor in the amount of five thousand dollars and, as her Second Motion for Partial Summary Judgment requests this relief, it is hereby granted.

This grant of partial summary judgment leaves only the question raised by Allstate’s Motion for Partial Summary Judgment: Whether Duckett’s bad faith claim raises triable issues of fact which necessitate trial on the merits. Because the Court concludes that the question must be answered in the negative, Allstate is entitled to summary judgment in its favor on the bad faith claim.

The facts concerning the bad faith claim are undisputed. Duckett was injured in an automobile accident on May 25,1982. As a result of this accident she incurred medical expenses in excess of eight thousand dollars, and made demand upon her own automobile insurance carrier, Allstate, for six thousand dollars. This demand was based upon a policy issued by Allstate to Duckett which provided, inter alia, one thousand dollars med pay coverage for each of five of the six vehicles owned by Duckett. Allstate refused to stack the med pay provisions and offered Duckett only one thousand dollars, the amount applicable to the vehicle in which she was injured.

In rejecting Duckett’s demand to stack the med pay coverage, Allstate essentially relied on (1) the provision in the policy prohibiting stacking of med pay coverage; (2) the advice of counsel that Oklahoma jurisprudence does not require stacking of med pay; and, (3) three decisions of the District Court of Oklahoma County sustaining Allstate’s policy prohibition against the stacking of med pay coverage. However, Allstate admits that at the time of its denial of Duckett’s claim it was aware of the decision of this Court in Gray v. Allstate Insurance Co., No. CIY-82-1373-W (W.D.Okla. May 17, 1983) (per West, J.), in which the Court found unenforceable a policy provision prohibiting stacking of med pay coverage. Further, Allstate admits that it was also aware of Aetna Casualty & Surety Co. v. State Board, of Property & Casualty Rates, 637 P.2d 1251 (Okla.1981), on which this Court relied in finding that the policy prohibition against stacking in Duckett’s policy was unenforceable. Duckett, at 728.

Duckett argues that this set of facts creates a jury question on the issue of bad faith; in essence, she contends that under Christian and its progeny the issue of bad faith is always a question for the jury. Allstate, on the other hand, argues that, as the facts are undisputed and permit only one reasonable inference, summary judgment in its favor is appropriate at this juncture.

It is true, as Allstate contends, that summary judgment is appropriate where there are no triable issues and a trial on the merits would therefore be fruitless. E.g., Webbe v. McGhie Land Title Co., 549 F.2d 1358, 1360-1 (10th Cir.1977); Frey v. Frankel, 361 F.2d 437, 442 (10th Cir.1966); Traverse v. World Service Life Insurance Co., 436 F.Supp. 810, 811 (W.D.Okla.1977). However, this does not mean that the absence of factual disputes mandates summary judgment; summary judgment is inappropriate notwithstanding the existence of uncontroverted facts where the reasonable inferences to be drawn from those facts are in dispute. E.g., Londrigan v. FBI, 216 U.S.App.D.C. 345, 670 F.2d 1164, 1171 n. 37 (1981); United States v. Perry, 431 F.2d 1020, 1022 (9th Cir.1970); Chenette v. Trustees of Iowa College, 431 F.2d 49, 53 (8th Cir.1970); Lighting Fixture & Electric Supply Co. v. Continental Insurance Co., 420 F.2d 1211, 1213 (5th Cir.1969). Cf. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (Where different ultimate inferences can be drawn, the case is not a proper one for summary judgment); Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1377 (10th Cir.1980); Traverse, 436 F.Supp. at 811. Where a reasonable inference favorable to the party opposing summary judgment can be drawn, summary judgment should not be granted. Williams v. Borden, 637 F.2d 731, 734 (10th Cir.1980); Luckett, 618 F.2d at 1377, quoting Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33, 36 (10th Cir.1975); Webb v. Allstate Life Insurance Co., 536 F.2d 336, 339 (10th Cir.1976). Thus, the relevant question for purposes of Allstate’s motion is whether the above stated facts permit a reasonable inference of bad faith on the part of Allstate in denying Duckett’s claim.

The essence of the tort of bad faith “is the insurer’s unreasonable, bad faith conduct, including the unjustified withholding of payment due under a policy.” McCorkle v. Great Atlantic Insurance Co., 637 P.2d 583, 587 (Okla.1981). The reasonableness of the insurer’s conduct in dealing with its insured must be determined in light of the law applicable to the insured’s claim on the insurer. Timmons v. Royal Globe Insurance Co., 653 P.2d 907, 914 (Okla.1982).

The Court is satisfied that the only permissible inference which can be drawn from the facts of this case is that Allstate’s denial of Duckett’s demand to stack was reasonable in light of existing Oklahoma law. There is not now nor has there ever been definitive, controlling authority on the enforceability of policy provisions prohibiting the stacking of med pay coverage. Clearly, the decision of this Court in Gray does not represent controlling authority in matters of Oklahoma law. Further, the decision of the Supreme Court of Oklahoma in Aetna, relied on by this Court in finding the prohibition unenforceable, does not mandate that result; the case is inapposite factually and the language relied on, while persuasive, is mere dicta. Thus, Allstate’s only guidance before this action came from the decisions of the District Court of Oklahoma County, which determined that Allstate’s prohibition against stacking was enforceable and found in Allstate’s favor.

Given the state of the law on this issue, the Court cannot see how Allstate’s conduct could be found to be unreasonable and in bad faith. To so find would require the Court to assume (1) that Aetna is controlling; (2) that the state courts reached the wrong result; and, (3) that Allstate knew the state courts reached the wrong result. There is nothing in this case to support any of these assumptions. There is a “legitimate dispute” as to the applicability of the mechanism of stacking to multiple med pay provisions, and Allstate “had a right to have this dispute settled in a judicial forum.” Manis v. Hartford Fire Insurance Co., 681 P.2d 760, 762 (Okla.1984). The Court therefore concludes that, on the facts of this case, there is no permissible inference that Allstate acted unreasonably and in bad faith.

Duckett is quite correct in the assertion that the issue of bad faith will most often be a question for the jury. However, this is not inevitably so. As the Supreme Court announced in Christian, the case in which the tort of bad faith was formally adopted:

We do not hold that an insurer who resists and litigates a claim made by its insured does so at its own peril that if it loses the suit or suffers a judgment against it for a larger amount than it had offered in payment, it will be held to have breached its duty to act fairly and in good faith and thus be liable in
tort____ Resort to a judicial forum is
not per se bad faith or unfair dealing on the part of the insurer regardless of the outcome of the suit.

Christian, 577 P.2d at 904-5. See also McCorkle, 637 P.2d at 587. Likewise, the mere fact that Allstate did not correctly predict this Court’s decision on stacking does not mean that ipso facto the reasonableness of Allstate’s conduct becomes a question for the jury. A jury question arises only where the relevant facts are in dispute or where the undisputed facts permit differing inferences as to the reasonableness of the insurer’s conduct. Accord, Manis, 681 P.2d at 762-3.

As the facts in this case are undisputed and permit no reasonable inference that Allstate acted in bad faith, summary judgment in Allstate’s favor is appropriate on Duckett’s claim for failure to deal fairly and in good faith. Accordingly, Allstate’s Motion for Partial Summary Judgment is granted.

In summary, the Court reaches the following conclusions:

1. The Plaintiff’s Second Motion for Partial Summary Judgment is granted.
2. The Defendant’s Motion for Partial Summary Judgment is granted.
3. The Defendant’s third party claim is dismissed.
4. The Plaintiff is entitled to judgment in its favor in the amount of five thousand dollars. Such a judgment will be entered to dispose of the case.
5. As final judgment has been reached, the Plaintiff’s Motion to Compel and the Defendant’s Motion to Strike are both moot.

      . This settlement and dismissal is fortunate in that the Court is now persuaded that it lacked jurisdiction over Duckett's claim against Cheek. Cheek’s consent to be sued is insufficient to establish diversity jurisdiction under 28 U.S.C. § 1332 (1982), as both Cheek and Duckett are citizens of Oklahoma. Basso v. Utah Power & Light Co., 495 F.2d 906, 910 (10th Cir.1974) (Waiver of diversity requirement by nondiverse defendant does not confer jurisdiction). Cf. State Highway Commission v. Utah Construction Co., 278 U.S. 194, 199-200, 49 S.Ct. 104, 105-106, 73 L.Ed. 262 (1929). This is so because subject matter jurisdiction cannot be conferred on the Court by the agreement of the parties. E.g., People’s Bank v. Calhoun, 12 Otto (102 U.S.) 256, 260-1, 26 L.Ed. 101 (1880). See also 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3602 (1984).

      . Duckett originally believed that the policy afforded med pay coverage to all six of her vehicles and therefore demanded a stacked amount of six thousand dollars. However, it is now undisputed that she is entitled to a stacked amount of only five thousand dollars. See supra at 728.


author: ENSLEN, District Judge.

text:
    Elizabeth VERMETT, Plaintiff, v. Gerald L. HOUGH, Director of the Michigan Department of State Police; The Michigan Department of State Police; Harold Morrison, Captain; Lt. James Fries; Lt. James Haydon; Lt. William Tomczyk; Lt. Francisco Deon; Sgt. Earl Raczkowski; Sgt. Thomas Jefferson; and all officers and employees of the Michigan Department of State Police; and David R. Haire, individually and as a trooper in the Michigan Department of State Police, Defendants.
    No. G 82-55.
    United States District Court, W.D. Michigan, S.D.
    March 8, 1984.

      Marjorie Schaafsma, Evanston, 111., Jean L. King, Ann Arbor, Mich., for plaintiff.
    Deborah Devine, Asst. Atty. Gen., State Affairs Div., Lansing, Mich., for defendants.
   OPINION ON DEFENDANTS’ MOTION TO DISMISS COMPLAINT OR FOR SUMMARY JUDGMENT

ENSLEN, District Judge.

This case involves alleged sex based discrimination in employment; specifically, allegations of sexual harassment, sex discrimination, and constructive discharge brought by a female State Trooper against the Michigan Department of State Police and named officials and police officers. Plaintiff’s Complaint, filed February 5, 1982 and amended September 19,1983, is in seven counts. It states that it is brought to enforce civil and constitutional rights pursuant to 42 U.S.C. § 1983, the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), and the Michigan Elliott-Larsen Civil Rights Act (M.C.L.A. 37.2101 et seq.). Counts sounding in retaliation, breach of contract (settlement agreement and consent agreement), assault and intentional infliction of emotional distress are also included. Jurisdiction in this Court is purported to be based upon 28 U.S.C. § 1331, 28 U.S.C. § 1343(3), 28 U.S.C. § 1343(4), and this Court’s pendent jurisdiction over state law claims. Injunctive and monetary relief are requested. Presently before the Court is Defendants’ Motion to Dismiss Complaint or for Summary Judgment.

I. Factual Background

Plaintiff, in her Complaint, recites the following chronology of events leading to the filing of this lawsuit:

She was an employee of the Michigan Department of State Police (the Department), having been originally hired on or about February 19, 1978. Following completion of recruit training, Plaintiff was assigned as a trooper to the Sault Ste. Marie Post (Sault) on or about May 26, 1978. On approximately February 6, 1979, Plaintiff was discharged from her employment with the Department. She subsequently filed a complaint with the Michigan Department of Civil Rights (MDCR) and the Federal Equal Employment Opportunity Commission (EEOC), complaining that the Department and its employees had discriminated against her on the basis of sex, in violation of Title VII and the Elliott-Larsen Civil Rights Act. On approximately May 13, 1979, Plaintiff was reinstated and reassigned to the Fourth Squad at the Northville Post (Northville), where she worked under the supervision of Defendants Raczkowski and Jefferson.

During the course of her employment at Northville, it is alleged that Plaintiff was repeatedly subjected to offensive verbal and physical conduct by Defendant Trooper Haire and commanding officers. This conduct was, Plaintiff contends, intentional, deliberate, and purposeful discrimination and harassment based on her sex. She asserts that this conduct unreasonably interfered with her work and created an unsuitable work environment. As a proximate result, Plaintiff states that she suffered depression, mental anguish, emotional distress, humiliation, embarrassment, outrage, loss of professional standing and status, impairment of earning capacity, and loss of capacity for enjoyment of life.

On or about June 19, 1981, Plaintiff filed a complaint with the MDCR and the EEOC complaining of unlawful employment practices and conduct. She filed a second complaint on July 30, 1981, complaining of unlawful employment practices and acts of retaliation. Plaintiff has requested that the EEOC issue a right to sue letter. The instant lawsuit ensued.

II. Standard of Review

Defendants bring this motion pursuant to Federal Rule of Civil Procedure (FRCP) 12(b)(6) (dismissal for failure to state a claim upon which relief can be granted), and in the alternative for summary judgment pursuant to Rule 56 (no genuine issue as to any material fact). Since some of the issues involve matters outside of the pleadings, while others do not, the standard of review for both types of motions will be outlined.

A. Motion to Dismiss

Defendants assert that their Motion to Dismiss is brought pursuant to FRCP 12(b)(6). However, this provision applies only when a Motion to Dismiss for Failure to State a Claim is made before a responsive pleading has been filed. Since Defendants have filed answers to both Plaintiffs original and amended complaints, this motion will be treated as if brought pursuant to FRCP 12(c) (Motion for Judgment on the Pleadings). See FRCP 12(h)(2). The same standard will be applied for granting the appropriate relief as would have been employed had the motion been brought properly under Rule 12(b)(6). See Wright & Miller, Federal Practice & Procedure, Vol. 5 § 1367.

In applying Rule 12(b)(6), the Court is to take as true the allegations of Plaintiffs Complaint and then determine whether the statements are sufficient to make out a right to relief. The issue is not whether the Plaintiff will ultimately prevail, but whether she is entitled to offer evidence to support her claims. Because dismissal on the basis of a failure to state a claim is disfavored, the standard by which the rule is applied is that:

in appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief. Conley v. Gibson, 355 U.S. 41, 45-46 [78 S.Ct. 99, 102, 2 L.Ed.2d 80] (1957) (footnote omitted).

The question, therefore, is whether in the light most favorable to Plaintiff, and with every doubt resolved in her behalf, the Complaint states any valid claim for relief. Wright & Miller, supra at § 1357. Motions to dismiss complaints brought under the civil rights acts are, of course, scrutinized with special care. See, Lucarell v. McNair, 453 F.2d 836 (CA 6 1972); Westlake v. Lucas, 537 F.2d 857 (CA 6 1976).

B. Motion for Summary Judgment

In considering those portions of Defendants’ motion which direct the Court to materials outside the pleadings, the standard of review applicable to Motions for Summary Judgment will be applied. See FRCP 12(b) and (c) and FRCP 56.

To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor. Adickes v. S.H. Kress & Company, 398 U.S. 144, 147, 90 S.Ct. 1598, 1602, 26 L.Ed.2d 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (CA 6 1976). If no genuine issue as to any material fact is established, the moving party is entitled to judgment as a matter of law. Chevez v. Noble Drilling Company, 567 F.2d 287 (CA 5 1978); Irwin v. United States, 558 F.2d 249 (CA 5 1977).

In determining whether or not there are issues of fact requiring a trial, “the inferences to be drawn from the underlying facts contained in the [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corporation v. Storm King Corporation, 303 F.2d 425 (CA 6 1962). Even if the basic facts are not disputed, summary judgment may be inappropriate when contradictory inferences may be drawn from them. United States v. Diebold, supra; EEOC v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 189, 427 F.2d 1091, 1093 (CA 6 1970). In making this determination, the Court must make reference' to the entire record and all well pleaded allegations are to be accepted as true. Dayco Corporation v. Goodyear Tire and Rubber Company, 523 F.2d 389 (CA 6 1975); Holmes v. Insurance Company of North America, 288 F.Supp. 325 (D.C.Mich.1968).

It is with these principles in mind that I will now address the issues involved herein.

III. Count I — Title VII

Defendants raise several issues regarding Plaintiff’s Title VII claim. They will be discussed seriatim.

a. Statutory Requirements for Bringing a Title VII Action

1. Whether Plaintiffs Title VII Claim was the Subject of a Timely Filed Charge with Either the EEOC or MDCR

42 U.S.C. § 2000e-5(e) provides:

A charge under this section shall be filed within one hundred eighty days after the alleged unlawful employment practice occurred ..., except that in the case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings, with a State or local agency with authority to grant or seek relief from such practice ..., such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, ____

The United States Supreme Court has recently held that the timely filing of a charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but rather a requirement that, “like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). Nevertheless, Plaintiffs are required to prove that they have satisfied the conditions precedent to a Title VII action. See Jackson v. Seaboard Coast Line R. Company, 678 F.2d 992, 1010 (CA 11 1982).

In determining the timeliness of Plaintiff’s EEOC complaint, the Court must first identify precisely the alleged unlawful employment practice of which she complains. Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980). Plaintiff contends that the individual events specified in her Complaint are all related, in that they are part of the “continuing environmental nature” of sexual harassment and discrimination in the Department. Since there is this nexus between the discriminatory activity and work environment liability, Plaintiff contends, the fact that the last specific act of alleged discrimination occurred within 180 days of the filing of the EEOC charge is sufficient to bring all of the acts alleged properly within the purview of this lawsuit. Having carefully read the allegations in the Complaint, I believe there is merit in Plaintiffs argument.

In Held v. Gulf Oil Company, 684 F.2d 427 (CA 6 1982), the Sixth Circuit affirmed a trial court decision wherein it was held that the Plaintiff had been subjected to serious and continuous sex discrimination and that, since there was evidence that the discriminatory acts continued throughout her- period of employment, the employee’s action was not time barred. In addressing the timeliness question, the court stated:

[T]he Supreme Court of the United States in United Air Lines v. Evans, 431 U.S. 553, 558 [97 S.Ct. 1885, 1889, 52 L.Ed.2d 571], ... (1977) stated: >jc ‡ sjc $ >¡t *
A discriminatory act which is not made the basis of a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed____separately considered, it is merely an unfortunate event in history which has no present legal consequences.
Plaintiff’s termination was effective December 15, 1977, and her administrative claim was filed with the EEOC on February 16, 1978. Thus, any incident occurring more than 180 days prior to February 16, 1978, is legally insignificant. This result, however, does not obtain where subsequent identifiable acts of discrimination occur within the critical time period and are related to the time-barred incident____ In [ Woodward v. Virginia Board of Bar Examiners, 420 F.Supp. 211 (ED Va 1976); aff'd 598 F 2d 1345 (CA 4 1979) ], the District Court pointed out:
When a person challenges continuous discriminatory conduct rather than any single discriminatory act, the 180 day limitation period of Title VII ... [is] not operative.
420 F Supp at 214, n. 3.
# * $ $ >Je # Thus, if the discriminatory acts commenced prior to the 180 day period and there was a continuous pattern of discrimination that continued into the 180 day period, plaintiff may still maintain her action even though single discriminatory acts prior to the 180 days period are barred. Held, supra at 430.

See also, Coley v. Consolidated Rail Corporation, 561 F.Supp. 645 (E.D.Mich.1982) and Henson v. City of Dundee, 682 F.2d 897 (CA 11 1982) for discussions regarding the creation of a hostile or offensive “work environment” by continuous acts of sexual harassment.

In the instant case, Plaintiff is alleging continuous acts of sexual harassment and discrimination throughout her period of employment. I believe she should be allowed to attempt to prove her allegations. Should she be unable to support her contention that the harassment and discrimination alleged is of an on-going and continuous type, Defendants will be free to renew their § 2000e-5(e) timeliness motion at trial. This aspect of Defendants’ Motion to Dismiss is DENIED.

2. Whether Plaintiffs Failure to Name Any Individuals in the Administrative Charge Entitles Defendants to Dismissal of All the Named Individuals in the Title VII and Retaliation Counts of the Complaint

The named individual Defendants seek dismissal of all Title VII claims against them on grounds that they were not named as parties in the EEOC charges. In support of their position, the individual Defendants rely upon 42 U.S.C. § 2000e-5(f)(1), which provides that after notice of Right to Sue, “a civil action may be brought against the respondent named in the charge ... by the person claiming to be aggrieved____”

The requirement of having named a party in the administrative charge before filing a civil suit against that party serves two purposes:

First, it notifies the charged party of the asserted violation. Secondly, it brings the charged party before the EEOC and permits effectuation of the Act’s primary goal, the securing of voluntary complianee with the law. EEOC v. MacMillan Bloedel Containers, 503 F 2d 1086, 1092 (CA 6 1974), citing Bowe v. Colgate-Palmolive Company, 416 F 2d 711, 719 (CA 7 1969).

Although § 2000e-5(f)(l) has generally been interpreted to mean that a charge must be filed against the party with the EEOC before a civil action may be commenced against that party, see EEOC v. MacMillan Bloedel Containers, supra; Evans v. Sheraton Park Hotel, 503 F.2d 177, 181 (CA D.C.1974); Mickel v. State Employment Service, 377 F.2d 239 (CA 4 1967); Williams v. General Foods Corporation, 492 F.2d 399 (CA 7 1974), courts have been liberal in their interpretation of this provision. See, e.g., Glus v. G. C. Murphy Company, 562 F.2d 880 (CA 3 1977); Eggleston v. Chicago Journeyman Plumbers, Etc., 657 F.2d 890 (CA 7 1981). As explained in Evans, supra at 183:

We do not believe that the procedures of Title VII were intended to serve as a stumbling block to the accomplishment of the statutory objective. To expect a complainant at the administrative stage, usually without aid of counsel, to foresee and handle intricate procedural problems which could arise in subsequent litigation, all at the risk of being cast out of court for procedural error, would place a burden on the complainant which Congress neither anticipated nor intended.

Recognizing the advisability of adopting a liberal approach to the enforcement of § 2000e-5(f)(l), the court in Glus, supra at 888, announced a four-part test to determine whether failure to strictly comply with the section should be excused:

(1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purposes of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. See also, Eggleston, supra at 908.

Under this test, “each prong must be carefully evaluated in light of both Title VII’s remedial purposes as Well as the interests of the parties.” Eggleston, supra at 908.

Under the circumstances involved in this case, it would appear that Plaintiff could easily have ascertained the role of Defendants prior to filing her administrative complaints. It is unclear, however, whether there is reason to believe that the failure to specifically name Defendants was due to some representation which would fall within the fourth prong of the test.

I am of the opinion that the factors set out in the second and third prongs outweigh the other factors and call for denial of this aspect of Defendants’ motion. The interests of the individual Defendants are substantially similar to those of the Department. In addition, it does not appear that the individual Defendants have been prejudiced by not having been specifically named before the EEOC — especially since their interests would or could have been protected by the Department. For these reasons, this portion of Defendants’ Motion to Dismiss is DENIED.

3. Whether Some of the Allegations in Plaintiffs Complaint Were Not the Basis of an Administrative Charge and, Therefore, Should be Dismissed

Defendants seek dismissal of two paragraphs of the Title VII count of Plaintiff’s Complaint, on grounds that the administrative complaint filed with the MDCR and the EEOC on June 19, 1981 did not include these charges. '

As with the other preconditions to a civil suit alleging a Title VII violation, the requirement that a Title VII cause of action be based only upon specific charges made in the administrative complaint has been liberally construed in Plaintiffs favor. See, e.g., EEOC v. Bailey Company, Inc., 563 F.2d 439 (CA 6 1977); Gerlach v. Michigan Bell Telephone Company, 501 F.Supp. 1300 (E.D.Mich.1980); McBride v. Delta Air Lines, Inc., 551 F.2d 113 (CA 6 1977), vac’d on other grounds sub nom Delta Air Lines v. McBride, 434 U.S. 916, 98 S.Ct. 387, 54 L.Ed.2d 273 (1977). Thus, it has been held that a Title VII cause of action may be based not only upon the specific charge made in the administrative complaint, “but also upon any kind of discrimination like or related to the charge’s allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charge of discrimination.” Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 451 (CA 5 1983). See also, EEOC v. Bailey, supra; Gerlach, supra; Sanchez v. Standard Brands, Inc., 431 F.2d 455 (CA 5 1970).

The Sixth Circuit has articulated two reasons for this rule:

The first reason is that the rule permits an effective functioning of Title VII when the persons filing complaints are not trained legal technicians. $ >H sjc sj: sjc ♦
The second reason for limiting the scope of the EEOC complaint to the EEOC investigation that can be reasonably expected to grow out of the private party’s charge is explained in Sanchez v. Standard Brands, Inc., supra, 431 F.2d at 466.
The logic of this rule is inherent in the statutory scheme of Title VII. A charge of discrimination is not filed as a preliminary to a lawsuit. On the contrary, the purpose of a charge of discrimination is to trigger the investigatory and conciliatory procedures of the EEOC. Once a charge has been filed, the Commission carries out its investigatory function and attempts to obtain voluntary compliance with the law. Only if the EEOC fails to achieve voluntary compliance will the matter even become the subject of court action. Thus it is obvious that the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation.
EEOC v. Bailey, supra at 446-447.

Applying this rule to the circumstances herein, I am of the opinion that the ambit of investigation Plaintiff’s complaint might “reasonably” have expected to stimulate encompasses the claims made in the two disputed paragraphs of the Title VII count. The paragraphs in question appear to refer to the events surrounding Plaintiff’s employment and termination at Sault. Plaintiff’s June 19, 1981 MDCR and EEOC complaint refers specifically to the March 5,1979 EEOC complaint involving the Sault events. It is certainly reasonable to conclude that the EEOC investigation following the June 19, 1981 complaint would involve the March 5, 1979 complaint and the events leading to its having been filed. Applying the liberal approach to the permissible scope of judicial claims, this aspect of Defendants’ Motion to Dismiss is DENIED.

IV. Count III 42 U.S.C. § 1983

1. Stating a Claim Cognizable under 42 U.S.C. § 1983

a. Whether a Violation of Title VII May Not be Asserted as the Basis of a § 1983 Action

42 U.S.C. § 1983 is a remedial rather than a jurisdictional statute, involving circumstances where a party alleges she has been deprived of a right, privilege, or immunity secured by the Constitution and laws, by a person acting “under color of” state law. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979).

Plaintiff alleges in Count III of her Complaint that the acts and omissions outlined in the Title VII count, which she “repeats and realleges” in this Count, deprived her of equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution. Plaintiff further alleges that Defendants failed, neglected, and refused to afford her equal terms and conditions of employment with males similarly situated. She contends that she was treated unfairly and unequally and deprived of rights guaranteed by the Constitution, pursuant to a governmental plan and practice of the Department, in violation of § 1983. The acts of Defendants are said to have been intentional and with willful and reckless disregard for the rights and sensibilities of Plaintiff.

Defendants argue that Plaintiffs § 1983 Count should be dismissed because it is an attempt by Plaintiff to bring a damage action under 42 U.S.C. § 1983 to redress violations of rights created by Title VIL I find Defendants’ argument untenable.

The Supreme Court has clearly stated that, “despite Title VIPs range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies [she] possessed and is not limited to Title VII in [her] search for relief.” Johnson v. Railway Express Agency, 421 U.S. 454, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1975). Plaintiff herein has, based on the same facts, brought an action under Title VII and an action under 42 U.S.C. § 1983. The § 1983 action, however, is not based on the provisions of Title VII. Rather, it is specifically based upon the Fourteenth Amendment to the United States Constitution. I have found no basis, and Defendants have presented me with none, upon which to conclude that Plaintiff cannot assert these separate claims.

In Whiting v. Jackson State University, 616 F.2d 116 (CA 5 1980), the plaintiff sought relief for an alleged racially discriminatory discharge under 42 U.S.C. § 1981, 42 U.S.C. § 1983 and Title VII. The Fifth Circuit did not question this practice. In fact, the court stated (after outlining the elements of Title VII and § 1981 causes of action):

Section 1983 serves as a basis for relief for violations of federal law under color of state law. Insofar as it is used as a parallel remedy for transgression of section 1981 and section 706 of Title VII rights, the elements of the causes of action do not differ from those discussed above. The only other federal law that [plaintiff] suggests has been trammeled by [defendant’s] actions is the fourteenth amendment ... [He] claims his termination on racial grounds offends equal protection. Id. at 121.

This portion of Defendants’ Motion to Dismiss is DENIED.

b. Whether Dismissal is Proper Because Plaintiff has Failed to Properly Plead a § 1983 Claim

Defendants argue that Count III fails to state a claim under § 1983 because Plaintiff failed to specifically include the words “under color of state law”. This argument deserves little consideration.

While it is certainly true that, in order to state a cause of action under § 1983, a plaintiff must allege that some person deprived her of a federal right, and that the person acted under color of state or territorial law, see Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), it is inconceivable to me that a plaintiff may be held to have failed to state a claim under that statute merely because she failed to recite the magic words “under color of state law”. Indeed, case law indicates quite clearly that courts are concerned with whether the conduct alleged by a plaintiff was actually committed under color of state law, rather than whether the correct buzz words were used in the complaint. See, e.g., Parratt, supra; Kurzawa v. Mueller, 545 F.Supp. 1254 (E.D.Mich.1982).

The Court has examined Plaintiff’s Complaint, and it is readily apparent that Plaintiff is alleging conduct by Defendants committed under color of state law. While I could liberally grant Plaintiff the opportunity to amend her Complaint to insert the words “under color of state law”, such would serve no purpose except to delay these proceedings. The Court being unwilling to dismiss Plaintiff’s § 1983 claims on the technicality embraced by Defendants, this aspect of their Motion to Dismiss is DENIED.

c. Whether the Defendant, Michigan Department of State Police, is Not a Person Within the Meaning of 4-2 U.S.C. § 1983, and is Immune from Suit

d. Whether the Eleventh Amendment to the United States Constitution Provides Immunity from Suits for Damages Against the State of Michigan as Well as its Various Departments and Agents

Plaintiff has failed to address either of these issues. They have been combined for purposes of this Opinion.

The Eleventh Amendment to the United States Constitution provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Eleventh Amendment is generally recognized as a bar to suits against a State unless specifically overriden by act of Congress, or unless the State has consented to be sued. See Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Eleventh Amendment’s bar extends to suits against departments or agencies of the State. Alabama, supra; Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Laskaris v. Thornburgh, 661 F.2d 23 (CA 3 1981). When suit is brought against state officials, the question becomes whether that action is a suit against the State itself. If the State is the “real, substantial party in interest,” the Eleventh Amendment bars suit. Ford Motor Company v. Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). Thus, where the action is in effect one seeking money damages from the State, relief sought nominally against a state official is, in reality, against the State, because the decree would operate against the latter. Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963); Ford Motor Company, supra. See also Schueur v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Eleventh Amendment’s jurisdictional bar applies regardless of whether the suit is for damages or injunctive relief. Alabama, supra; Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

An exception to the general rule was stated in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), where the court held that a suit challenging the constitutionality of a state official’s action is not one against the State. However, this ruling was later limited somewhat by the court’s ruling in Edelman, supra, that, in a suit against a state official alleging a violation of federal law, a federal court may award prospective injunctive relief, but not retroactive monetary relief.

Although Title VII has been held to be a congressional override of the State’s Eleventh Amendment immunity, § 1983 is not. See Fitzpatrick, supra; Quern, supra. Thus, when a § 1983 claim is brought directly against a State or one of its departments or agencies, the Eleventh Amendment bars this Court from granting any relief on that claim. See Alabama, supra; Pennhurst, supra. When a lawsuit is brought under § 1983 against state officials alleging a constitutional claim, this Court is barred from awarding damages against the state treasury. See Quern, supra; Pennhurst, supra; Edelman, supra.

In the instant case, Plaintiff has brought a § 1983 claim alleging a constitutional violation against the Michigan Department of Police and numerous officers of that Department. The officers named in this Count are being sued in their official capacity. Damages and injunctive relief are sought. Any monetary award will be paid from public funds in the state treasury. Therefore, applying the principles outlined above, Defendants’ Motion to Dismiss Plaintiff’s § 1983 claim against the Michigan Department of Police is GRANTED. Defendants’ Motion to Dismiss Plaintiff’s § 1983 claim against the various officers named is GRANTED as to any request for monetary damages; it is DENIED as to any request for prospective declaratory or injunctive relief against these officers.

Moreover, neither a state nor its departments and agencies are “persons” within the meaning of § 1983, and thus are not subject to suit under this statute. Quern, supra at 343, 99 S.Ct. at 1146; Ruiz v. Estelle, 679 F.2d 1115, 1137 (CA 5 1982), modified on other grounds, 688 F.2d 266 (CA 5 1982); Clark v. Michigan, 498 F.Supp. 159, 161 (E.D.Mich.1980).

As to the remaining Defendants and their argument that liability cannot be imposed upon a respondeat superior theory, I believe granting dismissal of Plaintiff’s remaining § 1983 claims on this basis is, at this stage in these proceedings, premature. See, e.g., Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1973).

V. Pendent Jurisdiction

a. The Eleventh Amendment and Pendent State Claims

A recent Supreme Court decision, not cited by the parties herein, raises an interesting issue as to the pendent state claims Plaintiff seeks to assert. Pennhurst, supra, involved a controversy over conditions of care at the Pennhurst State School and Hospital, a Pennsylvania institution for the care of the mentally retarded. After extensive trial and appellate court proceedings, prospective injunctive relief had been awarded on the basis of Pennsylvania’s Mental Health and Mental Retardation Act of 1966.

Justice Powell, writing for the majority, found reversal appropriate on grounds that the Eleventh Amendment prohibits federal courts from ordering state officials to conform their conduct to state law. Although the claim that defendants had violated state law in carrying out their official duties at Pennhurst was one against the state, the principles of Ex Parte Young and Edelman were inapplicable because the rationale behind those decisions — the vindication of the supreme authority of federal law — is not present when a federal court grants either prospective or retroactive relief against state officials on the basis of state law. As stated by the court:

[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism which underlie the Eleventh Amendment.
The reasoning of our recent decisions on sovereign immunity thus leads to the conclusion that a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when — as here — the relief sought and ordered has an impact directly on the state itself. Id., 465 U.S. at-, -, 104 S.Ct. at 911, 917.

The court went on to reject plaintiffs’ argument that the doctrine of pendent jurisdiction somehow displaces the Eleventh Amendment’s limitation on federal jurisdiction, stating:

This constitutional bar applies to pendent claims as well... [P]endent jurisdiction is a judge-made doctrine of expediency and efficiency derived from the general Art. Ill language conferring power to hear all “cases” arising under federal law or between diverse parties... The Eleventh Amendment should not be construed to apply with less force to this implied form of jurisdiction than it does to the explicitly granted power to hear federal claims.
If we were to hold otherwise, a federal court could award damages against a State on the basis of a pendent claim. Our decision in Edelman v. Jordan, supra, makes clear that pendent jurisdiction does not permit such an evasion of the immunity guaranteed by the Eleventh Amendment.
In sum, ... neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment. A federal court must examine each claim in the case to see if the court’s jurisdiction over that claim is barred by the Eleventh Amendment. We concluded above that a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment____ We now hold that this principle applies as well to state-law claims brought into federal court under pendent jurisdiction, (citations and footnote omitted). Id. at---, 104 S.Ct. at 919.

Applying the rule of Pennhurst and the cases cited earlier to the pendent state claims asserted by Plaintiff, I am constrained to hold that this Court is without jurisdiction to consider all of Plaintiff’s asserted pendent state claims against Defendants, with the exception of the claim in Count VI against Defendant Haire, individually, in tort for assault and intentional infliction of emotional distress. Therefore, Plaintiff’s claims for violation of the Elliott-Larsen Civil Rights Act, Breach of Settlement Agreement (made only against the Department), Retaliation (except as to Title VII and 42 U.S.C. § 1983), and Breach of Consent Agreement (made only against the Department), are DISMISSED.

b. Whether Pendent Jurisdiction is Inappropriate for Plaintiffs Remaining State Claim

The seminal case guiding this Court in the consideration of whether the exercise of pendent jurisdiction is appropriate is United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). There it was observed that, under the Federal Rules of Civil Procedure, the impulse is toward a trial court entertaining the broadest possible scope of action consistent with fairness to the parties. Thus, joinder of claims, parties and remedies is strongly encouraged. Accordingly, the Supreme Court held that a federal district court is empowered with pendent jurisdiction to hear claims founded upon state law so long as

there is a claim “arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made under their Authority...,” U.S. Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional “case.” The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. (Citation omitted.) The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in the federal courts to hear the whole. Id. at 724-725, 86 S.Ct. at 1138.

Pendent jurisdiction, the Supreme Court emphasized, is a power which need not be exercised in every case in which it is found to exist. It is a doctrine of discretion, and does not grant to a plaintiff the right to litigate claims before a federal forum. “Its justification lies in considerations of judicial economy, convenience and fairness to the litigants.” Id. at 726, 86 S.Ct. at 1139.

In Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), the court emphasized that pendent jurisdiction is based on the “common sense policy” of “the conservation of judicial energy and the avoidance of multiplicity of litigation.” Id., at 405, 90 S.Ct. at 1214.

In the instant case, I have already ruled, on Eleventh Amendment grounds, that this Court is without jurisdiction to hear all of Plaintiffs pendent claims but the claim against Defendant Haire, individually, for assault and intentional infliction of emotional distress. Had I not made such a ruling, I may have been more inclined to exercise pendent jurisdiction. However, since Plaintiff will be required to pursue several claims, including her claim based upon the Elliott-Larsen Civil Rights Act, in state court, I believe there is no reason to exercise pendent jurisdiction over the sole remaining state claim. In fact, it seems to me that interests of judicial economy, convenience, and fairness to the litigants compel the conclusion that the state claim against Defendant Haire should be resolved with Plaintiffs other state claims in state tribunals. I, therefore, exercise my discretion and dismiss Plaintiffs Count VI claim for assault and intentional infliction of emotional distress. The aspect of Defendants’ motion relative to this claim is GRANTED.

VI. Breach of Sault Settlement Agreement

Defendants contend that, by virtue of the settlement agreement entered into between Plaintiff and the Department in resolution of the EEOC charge filed in 1979 subsequent to her termination from the Sault Post, they are entitled to summary judgment on all allegations pertaining to Plaintiff’s employment at Sault. Plaintiff, on the other hand, contends that the Sault civil rights action is revived by Defendants’ failure to perform the settlement agreement; specifically, Defendants’ failure to remove certain documents from her file.

As a rule, settlements reached in pursuance of EEOC practice are entitled to the treatment accorded voluntary settlements of litigation generally. Spiridigliozzi v. Bethlehem Mines Corporation Cambria Division, 558 F.Supp. 734 (W.D.Penn.1980). Thus, what would amount to “waiver, release or covenant not to sue in any civil litigation is sufficient to produce the same consequences with respect to matters covered” by an EEOC settlement agreement. Id at 736.

Defendants cite a footnote in Spiridigliozzi, supra at 736 fn. 1, in support of their argument. The footnote states:

The release is “subject to the performance by the Respondent of the promises and representations contained herein.” But plaintiff makes no specific allegations of non-compliance except as to ex-pungement of material from her employment file____ Such charges of non-compliance must be made to the EEOC. The settlement agreement specifies that EEOC “shall determine whether the Respondent has complied with the terms of this Agreement.” At the present stage of proceedings no non-compliance can be assumed. The issue is prematurely presented to this Court which therefore now lacks jurisdiction. In any event the alleged non-compliance does not appear to relate to a matter sufficiently substantial to justify the invalidation of the settlement agreement after receipt of the $5,692.00 by plaintiff.

Since there is no clause in the settlement agreement involved herein which states that compliance will be determined by the EEOC, this footnote is not particularly helpful on that point. Nevertheless, involved herein is the analogous situation wherein Plaintiff was paid over $4,000 and was reinstated at the post of her choice. The reasoning of the last sentence of the cited footnote is equally applicable herein. In reaching this conclusion, however, I express no opinion as to the use of evidence of the breach in support of Plaintiff’s claims for retaliation; or her June 1981 MDCR and EEOC charge, in which she specifically refers to the breach as part of the continuing practice of discrimination practiced by Defendants. The only claims affected by my ruling are the ones which attempt to revive the underlying Title VII action against the personnel at Sault.

Moreover, even if the alleged breach were more substantial, Plaintiff would be precluded from reviving the underlying Title VII Sault claim.

In Henderson v. McRae, 148 Mich. 324, 327-328, 111 N.W. 1057 (1907), the Michigan Supreme Court stated:

In matters of accord and satisfaction, there is a well defined and easily recognized distinction between two classes of agreements:
1. Where the agreement of the creditor is to accept the performance of the debt- or’s new promise or agreement in satisfaction of the demand.
2. Where such promise or agreement itself, based upon sufficient consideration, is accepted in satisfaction of the demand____
And in this class of cases it must clearly appear that the intention of the party was to accept such promise, and not the performance, in satisfaction of the original demand. In the first class of cases, the accord must be fully executed to bar an action on the original demand... In the second class the original demand is extinguished, and cannot be the foundation of an action. (Citations omitted.)

This rule has been cited with approval many times. See Fricke v. Forbes, 294 Mich. 375, 293 N.W. 686 (1940); Belrose v. Kanitz, 284 Mich. 497, 280 N.W. 33 (1938); Hoffman v. Burkhammer, 373 Mich. 187, 128 N.W.2d 503 (1964); Williams v. Slazinski, 55 Mich.App. 221, 222 N.W.2d 189 (1974). In Belrose, supra 284 Mich, at 502, 280 N.W. 33, the court stated:

The distinction between an agreement which is, per se, to satisfy and extinguish an existing debt, and an agreement, the performance of which is to have that effect, must not be overlooked. The former operates as an immediate satisfaction of the debt; the latter, only when performed.

The settlement agreement involved herein provides that “in exchange for the promises made by” the Department, Plaintiff will not institute a Title VII action based upon the Sault events. Comparing this language with the principles and cases cited above, I am of the opinion that this agreement was intended, per se, to satisfy the “debt” owed by the Department to Plaintiff; and was thus, in itself, sufficient to extinguish Plaintiff’s Sault Title VII claim. Plaintiff’s remedy for the alleged subsequent breach is in an action for breach of contract, not under Title VII for the underlying claim.

This aspect of Defendants’ Motion for Summary Judgment is GRANTED.

VII. Performance Evaluations

Defendants argue, in two separate issues, that Plaintiff was properly evaluated utilizing the same criteria used for every trooper, and therefore her allegations concerning the use of different criteria are without merit. Having considered this argument, and the material cited in support thereof, I am in agreement with Plaintiff that genuine issues of material fact exist as to the objective and unbiased nature of the performance evaluations in question. Defendants’ Motion for Summary Judgment on these issues is DENIED.

VIII. Immediate Corrective Action

Defendants argue that they are entitled to summary judgment on Plaintiff’s sexual harassment claims on the ground that immediate and appropriate corrective action was taken upon Plaintiff’s complaint. I am again in agreement with Plaintiff that genuine issues of material fact exist as to this issue. This portion of Defendants’ Motion for Summary Judgment is DENIED.

IX. Parroting of EEOC Guidelines

Defendants contend that the allegations in Plaintiff’s Complaint parroting the EEOC guidelines found in 29 CFR 1604.11 et seq fail to state a claim, because the EEOC guidelines do not impose affirmative duties upon Defendants. They contend that three paragraphs of Plaintiff’s Complaint should, therefore, be dismissed.

The EEOC guidelines constitute administrative interpretation of Title VII by the enforcing agency, and are thus “entitled to great deference.” Albermarle Paper Company v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975). An examination of the paragraphs in question reveals that a few of the numerous allegations found therein contain language like that found in the EEOC guidelines. However, I find no basis, and Defendants have provided me with none, upon which to conclude that this somehow renders these paragraphs subject to dismissal. Plaintiff will be required to satisfy her burden of proof at trial as to her various allegations, based upon the appropriate legal principles. Defendants’ Motion to Dismiss on this ground is DENIED.

X. Conclusion

In accordance with the above, Defendants’ Motion to Dismiss Complaint or for Summary Judgment is GRANTED in part; DENIED in part.

Because of my conclusions herein, I find it unnecessary to address Defendants’ remaining arguments. However, the issues raised by Defendants were somewhat complex, and often confusingly interrelated. Should it appear that an issue not addressed by this Court pertains to the remaining counts in Plaintiff’s Complaint, Defendants may re-submit pleadings on that issue within ten (10) days from the date of this Opinion. Plaintiff shall have ten (10) days thereafter in which to respond.