UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERALAVIATION ADMINISTRATION WASHINGTON, DC FAADOCKETNO. 16-15-07
WILLIAMALFRED HICKS, JR. a/k/a BILLY HICKS, Complainant 

## RECEIVED SEP 

### 1 12015 PART 16 DOCKETS

v. CITY OF MOUNT AIRY, NORTH CAROLINA; and THE COUNTY OF SURRY, NORTH CAROLINA; through the MOUNTAIRY/SURRY COUNTY AIRPORTAUTHORITY, ) ) ) ) ) ) ) ) ) ) ) ) COMPLAINANT'S RESPONSE TO RESPONDENTS' MOTION TO STRIKE AND FOR APPROPRIATE RELIEF

Respondent.

SubmittedBy: RandolphM. James, N.C. Bar No. 10,000 Attorney for Complainant RANDOLPH M. JAMES, P.C. P.O. Box 20069 Winston-Salem, NC 27120 Phone: (336) 724-7707 Facsimile: (336) 724-9722 Email: rmjames@nnjameslaw.com Pursuantto 14 CFR, §16.26(b)(3) and §16.26(c)(3), William Alfred Hicks, Jr., by and through counsel, hereby answers the Respondents' Motionto Strike and for AppropriateRelief,
submittedbyRespondentMount Airy/Surry County AirportAuthority and adoptedby the City

ofMountAiry. CONCISE STATEMENT OFFACTS Complainant, William AlfredHicks, Jr. ("Billy" or "complainant"), a past
member ofthe MountAiry/Surry County Airport Authority andpasttenant at the Airport itself,
filed a formal complaint pursuantto Title 14 CFR, Part 16, againstthe MountAiry/Surry CountyAirportAuthority, the governing body ofthe Mount Airy/Surry CountyAirport ("KMWI("), as designatedby the City ofMount Airy and the County ofSurry, both located in North Carolina,
who are the Sponsors ofthe Airport. The Mount Airy/Surry CountyAirport Authority (herein "AirportAuthority") are appointedbythe Sponsors and make the policy andprocedure needed to
operate the facility. Billy's Complaint arises from actions taken bythe MountAiry/Surry County Airport Authority ("Airport Authority) that Billybelieves violate the Sponsor Assurances assumedby
the AirportAuthoritywhen accepting funding grants. The Federal AviationAdministration ("FAA") hasjurisdictionto determine compliance with obligations and assurances pertaining to
the Airport ImprovementProgram through Title 49 U.S.C. §47101, et. seq., and Airport Sponsor
Assurances through 49 U.S.C. §47107, etseq. Respondents have filed a Motionto Strike arising
from Complainants Response to Respondents' Motionto Dismiss, or in theAlternative for Summary Judgment. 

### ARGUMENT
InBilly'sResponse to Respondent's Motion to Dismiss, or inthe Alternative for Sunnnary Judgment, Complainantpresented an example ofC-III nmway design standards, with
Exhibit 8 (excerpt from AC 150/5300-BA,). The Airport Authority filed a Motionto Strike and
for Appropriate Relief, which was adoptedby Surry County. Inthe Motionto Strike, Respondents arguethe C-III design standards provided in Complainant's Response to Respondents' Motionto Dismiss, or in the Alternative for Summary Judgment is notrelevantto
the Complaint and in violation of 14 CFR, Part 16, 16.13(e). Respondent does correctlypoint out amistake made by complainant's counsel in describing the aircraft KMWK is intendedto serve as C-III instead ofB-II. However, this error

2as to the designation ofthe aircraft does notmake the correct designation or design standards
which are applicableto KMWK irrelevant or immaterial to the Formal Complaint and Respondent's Motionto Dismiss or In the Alternative for SummaryJudgment. Complainant
intendedto focus the FAA and the Surry County community at large on the issue ofwhetherthe airport expansionplan complies withFAArestricted areas and funding requirements in relation

to timing offunding and timing ofconstruction, and whether the Mount Airy-Surry County AirportAuthorityhas beentransparent with the FAA andthe governingbodies in disclosingthe
actual landthatwill be neededto complete this runway expansion. Procedurally, the FAA rules, including Part 16 rules, "find their genesis inthe Federal
Rules ofCivil Procedure," andas such federal cases canbepersuasive. Lo-Yu-Sun v. Portof Seattle, FAADocketNo. 16-06-13, p. 4 (Order) (Sept. 12, 2007) (Attached as Ex. 1). Motions to
strike pursuant to Federal Rules ofCivil Procedure, Rule 12(£), are for "redundant, immaterial, impertinent, or scandalous matter. Rule 12(f) motions are generally viewed with disfavor, however, because striking a portion ofa pleading is a drasticremedy andbecause it is often soughtbythe movant simply as a dilatory tactic." BuildersMut. Ins. Co. v. Drag as Mgmt. Corp.,
709 F.Supp.2d 432,437 (B.D. Va. 2010) (quoting Waste Mgmt. Holdings, Inc. v. Gilmore, 252
F.3d 316, 347 (4th Cir. 200l))(Included as Ex. 2). For a motionto strilce to be granted, the

movant should show the portion ofthepleading is "devoid ofrelevancy, materiality or pertinence" suchthat it shouldbe excluded, instead ofleaving the material for adjudication on
the merits. McDonaldv. GeneralMills, Inc., 387 F.Supp. 24, 41 (B.D. Ca. 1974) (citing 5 Wright
& Miller, Federal Practice and Procedure §1382, pp. 815-816).(Ex. 3).

3I. The PropertyRequired for the RunwayExpansion is atIssue intheFormal Complaint and Relevant to theRespondents' Motion to Dismiss, or in the Alternative for SummaryJudgment. Billy's Complaint alleges violations ofthe Airport SponsorAssurance 4, Good Title,
whichrequires the Airport Authorityto confirm the Authority, a public agency, or the Federal
Governmentholds good title to the landing area ofthe airport, or that good title will be acquired. Airport Sponsor Assurance 4(a). Complainanthas allegedthe Airport does not own goodtitle to
all the landrequired for the expansion project, includingtherunway extension. (Camp., p. 33).
The Complaint statedBillywas informed and believedthe Airport Authority did nothave good
title to all real property directly affected bythe airport extensionwhenthe expansionbegan in
2008 and up through April, 2015, still had not yet acquired good title to all the land required for
the airport expansion and could not give assurance that good title wouldbe obtained, as required by Sponsor Assurance 4. (Camp., p. 34).
Part ofdetermining whether goodtitle has or can be obtained bythe Authority is identifYing the minimum design standards which KMWK is requiredto satisfY, including requirements for runway protection. Complainant relies upon Advisory Circular for Airport Design, AC 150/5300-13Awhich defines runwayprotection areas bycategory ofaircraft. Although Complainantmistakenlyreferenced CategoryC-IIIto conclude real property fell
within the Runway Safety Area (RSA), an analysis ofthe conect category, B-II, still discloses
realpropertywith obstacles which are withinthe Runway Object Free Area (ROFA) for B-II
category aircraft for which no steps have beentakento secure the property onthe East side ofthe
KMWK 36-18 runway. As such, complainant believes the Respondents are not in compliance
with Sponsor Assurance 4, Good Title, because ofthe real propertywithhomes falls withinthe
ROFA.

4Respondents provided in the Motion to Dismiss, or inthe Alternative for Summary Judgment ("Motionto Dismiss") information aboutthe land surrounding the airport, including
the information aboutthe nmway expansion creating a 5,500 X 100 foot runway. (Resp. Mot. To Dismiss, p. 21-22). In Respondents' Motion to Dismiss, inEx. A-2 to theAffidavit ofJonathan Semones, is a map created July 9, 2015. This map shows property lots including houses directly adjacentto the runway, within 200 to 400 feet onthe East side ofRunway 36 -18. Encroaclunent
into the ROFA onthe East side ofrunway 36-18 byprivate property m11st be assessed in determining whetherRespondents are in violation ofSponsorAssurance 4, Good Title. Runway design andrunway extensions must evaluate runwayprotection, including Runway SafetyAreas (RSA), Runway Object Free Areas (ROFA), Runway Obstacle Free Zones (RPZ), and R1mway ProtectionZones (RPZ). AC 150/5300 -13A, p. 45. The following chart
entitled Runway design standard matrix, AlB-II Small Aircraft establishes RSA, ROFA, ROFZ,
POFZ and RPZ for the KMWK RunwayExpansion.

T.nbleA7-3.

**Ran~·my** de.sign standards matrix,

**.AlB~**ll Small .A.ircro:ft AircrdftApproa.clt Catego1)'/-4AC) .anrl AirrY.ltm.e.Desi"'u GronP {.Al)G): AlB

- llSmtill.Aircraft
Visual iNotLm,t•ertlb:..t:n)NO'tLowert'han) Lowe:rtfuan
RU01WAYD£SIG::-.1 R1.ID-\<.ray Length A Run\<m:fWidth B Shau!de:r- "V?idfu Blas;ttPad.Width Blas.tPad

**~ofu** Crossv.rindCompa-ne:ntr R1.1]'{v;tAY

**PROTECTIO~** Ruffi"my S:afet:f }\rea (RSA) Lengthbeyonddepartureernl

**~.1o** Lengthpriesto threshold \Vidth RUU\"'l::!Y ObjectFreeArea (ROF A) Lengthbeyond:runway·end Lengthprierto threshold \Vidfu

**R1l~X'ill<ly** ObstacleFreeZone (R.OFZ) Length Width PrecisionObstacleFreeZone (POFZ) I=gtn Width R p c
R p Q 75"
_1S<>_ft

3{]Dft 300ft 150ft

NiA. NIA I 1 mile I 3.f4 Illi1e I 3t4m.ile

75 l<lJ 95

# " 9

**~** l50 B

300ft 300ft 600ft

300ft 3·00fit 600ft 150ft 150ft 300ft

Rife1· toparag.rapli 308 Rqterto pm-agroph 308

N/A N/A 200ft NI'A NlA :SOOft AC 150/5300-13A, Appendix 7, Table A7-3, p. 271. (Ex. 4).
5Applyingthis matrixto the KMWK Runway 36-18 design, the ROFAminimum requirement for Visibility minimums is 500 feet offthe centerline, 250 feet each side ofthe

center line for visibility minimum ofvisual to not lowerthan% mile. KMWK has two GPS approaches which limit approaches by categoryto not less than 1mile ofvisibility. Therefore, in
order to satisfythe Runway design criteria for AC 150/5300 -13A, a ROFA of250 feet offthe
centerline ofRunway 36-18 is required. Applyingthis widththe full length ofRunway 36-18, approximately mid-runway it appears onthe eastern side ofthe runway real property with homes
encroachthe ROFA. To complainant's lmowledge, not steps have beentakento secure the real

estate encroaching onROFA onthe East side ofRunway 36-18.
This information is highly relevant to how much propertythe Airport Authority must
have good title to, or be able to assure itwill be acquired. Inthe Formal Complaint and in Complainant's responseto Respondents' Motion to dismiss or summaryjudgment, the intentwas

to make the FAA aware that structures, homes, lie within or immediately adjacent the Controlled
Areas ofthe planned B-II runway expansion. The designations are inplace to ensure the safety
ofthe airport, and as such are highly relevant. Though it appears KMWK will meet the requirements ofthe Runway SafetyAreas forBII aircraft designation, as provided byRespondent intheMotionto Strike, there still appears to
be encroachment ofprivateproperty within the Runway Object Free Area (ROFA) even withBII standards. Inthe KMWKApproach Plates for Runway 36 and Runway 18, the best visibility is one (1) mile. This visibility limitation then determines the requiredRunwayProtection The Runway
Obstacle Free Area (ROFA) for not lower than one (1) mile is 500 feet centered on the nmway
centerline. AC 150/5300-13A, p. 69,

**~309.** The 500 feet Runway Obstacle FreeAreawould

6extend 250 feet from the centerline ofRunway 18 and Runway 36. Byplacing a scale on the map presented as Ex. A-2 to the Affidavit ofJonathan Semones, provided with Respondents' Motion

to Dismiss, or inthe Alternative Summary Judgment, there is visible property within 200 feet on
the East side ofRunway 36. The Complainant is unaware ofanyprovisions for acquiring the
propertydiscussed bythe Respondents, in order to comply withthe standards provided in 1309
andAC 150/5300-BA, Appendix 7, Table A7-3, p 271. Though Complainantmayhave erred aboutthe designation ofKMWK aircraft as a C-III,
the proper designationofB-II and corresponding design criteria standards are relevant in detennining whether the Airport Authority has goodtitle to thereal estate affectedby and requiredfor the expansion, to determine thathomes and other structures which abut therunway

area lie within the controlled areas surrounding therunway. The design standards oftheKMWK

runway are relevantto the allegations in theFormal Complaint arguing the AirportAuthority's
lack oftransparency aboutthetitle to propertyrequiredby the runway expansion (Comp. pp. 33- 36), and thus Respondents' Motionto Strike shouldbe denied.
II. SubmittingInformation Relevant to IssuesRaised in the Complaint and Respondents' Motions, and is not a violation of 14 CFR §16.13. Respondents argue inthe Motionto Strike the aircraft designation andExhibit 8
contained inthe Response to Respondents' Motion to Dismiss is in violation of 14 CFR §16.13
because it is irrelevantto KMWK, as KMWK plans were for a B-II aircraft. However, aircraft designation andthe corresponding restricted areas surroundingthe airport is relevant, and 14
CFR §16.26(b)(3) allows the Complainantto provide documents relied upon inthe answer to a
motion.The Code ofFederal Regulations Part 16, §16.13(e) sets forth that every document filed
should be signed, andthat signature serves as certificationthatthe signer believesthe document

7is consistentwithPart 16, warranted by existing law orthat a good faith argument exists for the
extension or modification ofexisting law, andnot interposed for any improper purpose, 14 CFR

Part 16, §16.3(e). Respondents' assertion the information about aircraft designation and required restricted

areas in Complainant'sResponse to the Respondents' Motionto Dismiss, or in the Alternative Summary Judgment, are immaterial and a violation of§16.3. However, aircraft designation is
relevantto how much propertythe Airport Authority musthave goodtitle to orbe able to provide assurance that it can be acquired pursuantto Sponsor Assurance 4. When a motionto
dismiss aPart 16 formal complaint has been filed with the FAA, "complainantmay file an

answer to the motionto dismiss within 10 days ofthe date the motion is served onthe complainant, or within any otherperiod setbythe Director. The answer shall be accompaniedby

a concise statement ofreasons for opposing dismissal, andmaybe accompanied by affidavits

and other documentary evidence in support ofthat contention." 14 CFR §16.26(b)(3).
BothBilly's Complaint and Respondents' Motion to Dismiss provide maps showing the

runway andthe sunOlmding property, with a scale for the distance betweentherunway and the
property closest to the runway. ( (Comp., inEx. 26H-l, and Respondents' Motionto Dismiss, in

Ex. A-2 to the Affidavit ofJonathan Semones). To submitthe requirements for the controlled

zones aroundthe runway is directlyrelated to the property maps inthe Formal Complaint and Respondents' Motionto Dismiss, is relevantto an issue in dispute (Sponsor Assurance 4), is
consistent withPart 16.23(b)(3), warrantedby existing law (or a good faith argument exists for

the extension or modification ofexisting law), and is not interposed for any improper purpose pursuantto 14 CFRPart 16, §l6.3(e).

8Here, Complainant filed Exhibit 8, the excerpt from FAA Airport Design Advisory
Circular on RunwayDesignwithhis Answerto Respondents' Motionto Dismiss as a document

onwhichhe relied upon in good faith, pursuantto 14 CFR §16.26(b)(3). Though the proper
Exhibit shouldhave been the B-lltable and not the C-Illtable, Respondents have now provided
the correct designation, theB-II designation, and as such do notneed to strike the Complainant's
Exhibit 8. Information which is relevant to the Sponsor Assurances alleged as violated in the Complaint, and information pertaining to the Respondents' Motionto Dismiss, or in the
Alternative for Summary Judgment, should be included intherecord suchthatthe FAA will be
able to decide onthe merits ofthe case. The information and documents Complainanthas provided in referenceto restricted areas around the runway is to allow the FAAto determine the
issue on the merits ofthe case, and specifically, whetherthe AirportAuthorityholds goodtitle to

or can provide assurance that goodtitle can be acquiredto all the realproperty the expansionwill require, suchthatthe AirportAuthority is meeting the obligations ofSponsor Assurance 4, Good
Title. As all information aboutrelevantpropertylots affectedbythe expansion are material and relevant, presentedpursuantto 14 CFRPart 16, and as such, the Respondents' Motion to Strike
should be denied. CONCLUSION
For the foregoing reasons, Complainant respectfullyrequests the FAADENYthe Respondents' Motionto Strike and for Appropriate Relief, such that Respondents' Motionto
Dismiss or inthe Alternative Motion for Summary Judgment can be determinedbasedupon the
record.

9This, the gth day ofSeptember, 2015.

10 RandolphM. James, N.C. Attorney for Complain t P.O. Box20069 Winston-Salem, NC 120 Phone: (336) 724-7707 Facsimile: (336) 724-9722 Email: rn1james@rmiameslaw.comCERTIFICATE OF SERVICE I, RandolphM. James, certifY on September 8, 2015, I filed and served this Complainant's Response to Respondents' Motion to Strike and for AppropriateRelief(together
with all the attachments and exhibits hereto), byplacingthe original andthree copies addressed

to the FAA in a prepaid, first-class envelope in the custody ofthe United States mail as defined byTitle 14 CPRPart 16, §16.3, andbymailing a copyto counsel ofrecordby depositing the foregoing in U.S. mail, addressed to:

FAAPart 16 Docket Clerk, AGC-600 Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 (Original and Three Copies) Howard C. Jones, II 105 West Fourth Street, Suite 400-E Winston-Salem, NC 27101 Attorney for MountAiry/Surry County Airport Authority

11 EdwinM. Woltz 119 RawleyAvenue MountAiry, NC 27030 Attorney for the County ofSurry, NC Hugh B. Campbell, III 235 E. Independence Blvd. PO Box 1846 MountAiry, NC 27030 Attorney for the City ofMount Airy, NC

. JAMES,P.C.

olph M. James, N.C. B Attorney for Complainant P.O. Box 20069 Winston-Salem, NC 271 0 Phone: (336) 724-7707 Facsimile: (336) 724-9722 Email: rmjames@rmjameslaw.com•**'iP~** p:q ?

### 8**t~.,u** ,_.., <- 

### A !l): 

### Ol ) Vr Yu-Sun, ) ) Complainant ) ) FAA DocketNo. 16-06-13
v. ) ) 

# 00 rn 

# ill rn 

## n 

# wrn PortofSeattle } ) Respondent ) 

### SEP 

## 1 2 2007
OlWER FAA AIRPORTS PART 16 POCKETS
On September 14,2006, Complainant (or «petitioner") Lo-Yu-Sun, through.counsel, :filed 

### aComplaintwith the Federal Aviation Administration (FAA) under 14 C.F.R. Part 16 againstthe PortofSeattle (Respondent) allegingthePort failed to carryoutthe objectives ofthe Airport Concession Disadvantaged Business Enterprise (ACDBE) program under 49 C.F.R. § 23.1, and discrimination inviolation of49C.P.R.§ 26.7. On October6, 2006, the FAA issued aNotice advising the parties that the Complaint had been docketed and thattheRespondent Port ofSeattle was requiredto file an answer within 20days. The FAA nor,ed HostInternational Inc. (Host), was notthe Federal airport sponsor,proprietor, or operator, and was not aproperpartyto aPart 16 case, and that the Complainanthad notsubmitted any supporting documentation withhis Complaint On October 20,2006, Respondent filed aDesignation ofPersons to Receive Service for the PortofSeattle andrequested a 60·day extension oftime in which to file its Answer. 

### On October 26, 2006, theFAA granted Respondent'srequest for an extension oftime to file the Answerand advised that the Answerwould now be due onDecember 26, 2006. On December 18, 2006, Complainant filed documents in supportofhis September 14, 2006 Complaint. 

### On December22, 2006, Complainant filed aMotion to Amend Complaintto Provide Additional InformationPursuantto 14 C.F

### .R. § 16.23(g). 

# 00

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-1**-~OAn""""December-U,.WQe,-R<!Spl'lnG~€4** its Oppositioucto£ompTainanfs Motion to Amend Complainta.>d aMotion for ExtensionofTime to file its Answer. 

### 2

OnJanuary 17, 2007, the FAA issued an order granting Complainant'sMotiontoAmend Complaintto ProvideAdditional Information, andprovidingRespondentPort ofSeattle with an additional 30 days to file itsAnswer. OnFebruary 15, 2007, Respondentfiledits Answer, Motion to Dismiss, and a Memorandum ofPoints and Authorities andAffidavitin SupportofitsAnswer and Motionto Dismiss. 

### On February 15, 2007, Complainantfiled a Second Motionto Amend Complaint, an Amended Complaint, and four declarations. 

### On February 23, 2007, Respondent filed an 0Fpositionto Complainant's Second Motion to Amend its Complaint. OnMarch2, 2007, Complainant flied a Replyin Support ofSecondMotion to Amend Complaint and a Declaration. On March 7, 2007, Complainant filed his Opposition to Respondent'sMotion to Dismiss,
OnMarch 8, 2007,Respondent filed a JointMotionto (1) Strike Complainant's UnauthorizedReplyto Respondent's Opposition toComplainant's SecondMotionto Amendtbe Complaint; (2) Strike Complainant'sUntimelyOppositionto thePort's Motionto Dismiss; and (3) Bar Complainant from SubmittinganUntimelyReplyto Respondent's Answerto the Complaint. Backgrotmd The FAAhas beforeitthefollowing motions:

e Respondent's Motion toDismiss tbe First Amended Complaint

e Complainant's Second Motion to Amend Complaint
• Respondent's Opposition to Complainant's Second Motionto Amend tbe Complaint o Complainant'sReplyinSupportofSecond Motion to Amend Complaint and a Declaration , • Complainant's Oppositionto Respondent'sMotionto DismissFirstAmended Complaint • Respondent'sMotion to Strike Complainant'sUnauthorizedReply to Respondent's 

### Opposition to Complainant's Second Motion toAmend Complaint " Respond,ent's Motionto Strike Complainant'sUntimely OppositiontothePort's Motion to Dismiss FirstAmended Complaint, and
• Respondent'sMotionto BarComplainantfrom SubmittinganUntimelyReplyto Respondent's Answerto the FirstAmended Complaint.

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1·2

### 3

Complainant's Second Motionto Amend Complaint'
In this Motion, Complainantrequests the FAAto replace the name ofthe Complainant as an individual, "Lo-Yu-Sun,"with the Washington corporation, "Sun'sInc." Complainant
now advises that "Sun's Inc.,"ratherthan "Lo-Yu-Snn," is certified asan Airport ConcessionaireDisadvantagedBusiness Enterprise (ACDBE).
To support his request, Complainant states thatthetwo airportconcessions discussed in the Complaint

- ChinaFirstExpress andManchu Wok- are/were operated bySun's

### Inc., the certified ACDBE. Complainant advises thatonJanuary5, 2006, he transferred his40 percentmvnership interestinSun's Inc. to a 

### Mr. Yu (who is now the 100 percent shareholder), but thathe serves as vice president andgeneral managerofSun's Inc. Complainant states that the Complaint wasbroughtunderhis name as an individual rather than Sun's Inc. becausehis attorney who filed his Complaintwas not aware ofthe change ofownership structure, orthat Complainantno longerhad anyown.ership interest. Complainant indicates thatthe ownership issue was notbroughtto his attention- and hence his attorney's attention -until on or aboutFebruary7, 2007, when areview of Sun's Inc.'s ownership structure bythe State ofWashington's Office ofMinorityand Women'sBusiness Enterprises (OMWBE) brought outthe fact thatthe company's ownership had changed. Complainant advises that the Complaint was broughtunderhis name as anindividual becausehis position and duties asvice president and general managerhad not changed afterJanuary 5, 2006, and he did notrealize that amore specificreference to him as the minorityowner orpartownerwas needed. Complainant's counsel in a Declaration states thathe hadnotpreviouslybeen aware that Complainant only owned aminority 40percent interestin Sun's Inc., and thatitwas not until January 31, 2007 thathe learned from 

### Mr. SunthatSun was notthe sole ownerof Sun'sInc. and that Sun hadtransferred his 40percent interest to 

### Mr. Yu. Complainant urges theFAA to permithim to file a second amended complaintin the name ofSun'sInc., arguingthat: (1) the Director has discretionto acceptthe amended complaintunder 14 C.F.R. 16.ll(a);there would beno prejudiceto Respondent; (2) case law, legislative history, and similarrules ofpractice support acceptance ofan amended

1 The FAA alreadyproVidedComplainantwith one opportunityto amend his Complaint. On O!:tober 6, 2006, the FAA.placed Complainant on notice thathis Complaintlacked any supporting documentation, thatPart 16required thatpleadings beaccompanied by supporting documentation upon whichthepartiesrely, and thatthe Complainanthasthe burden ofproofto establishhis Complaint Overthree monthslater, onDecember 18, 2006, Complainantfiled documents in support ofits September 14, 2006 Complaint. OnDecember22, 2006, Complainant filed aMotion toAmendhis Complaint However, pursuantto the FAA's October 26, 2006!etter, the Respondent's Answerwas due on December26, 2006. Inits January 17, 2007, Order, theFAA advised Complainantthatthe supporting documentation shouldhave been filed withhis September 14, 2006 Complaint and thathis failure to do so has delayedthe proceeding. Despite Complainant's error, the FAA granted Complainant'sfirstrequestto amend the complaintas necessary or appropriate for a fair and completehearing ofthe matter.

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-34

**-~-~__,..ompla:i:nt-ID-fue-inter.est-BfJaim~s;+<jcSi:nce**FAAmJes, **inclndiru;J'mt,7::1':6~, fin~d~il:l;o'**  ,e1"'. -------- genesis inthe Federal Rules ofCivi1Procedure (FRCP), the latter shouldbehighly pexsuasive, theFRCP have a liberal policytoward the amendmentofpleadings;under Rule 15 oftheFRCP,parties tnay amend thcirpleadings once as amatterofcourse at any time before aresponsivepleadingis served; (4) Respondent has sufferedno prejudice, Complainanthas not actedinbad faith and its Complaintis not ftttile; (5)United States DepartmentofTransportationrules (14 C.F.R302.5)providethatan !!pplicationmaybe amendedpriorto the filing ofanswers thereto; and since Complainant filed hls amended complaintprio:rto Respondent filing its Answer,Respondent basnot suffered any prejudice. Inreply, Respondent argues: {1) the Second Motion to Amend Complaint fuils to meet appropriatelegal standards including those discussed inFomanv.Davis, 371 U.S. 178 (1962); (2)theMotion was filed afterRespondentfiled its Answer; (3) Complainantis askingto amendhis Complaintmore 

### 1han fivemonths afterfilinghis initial Complaint, and that Complainanthashad ample time 

### tomake this latest change; ( 4) the fact that Complainant'scotmsel was unaware ofthedefects in the Complaint isimmaterial; the Complainant is ultimatelyresponsible for the prosecution oftheproceeding; in both instances, Complainanthas filedboth ofhismotions to amend the Complaintataboutthe
sametimeRespondent's Answerwas due; (5) pennittingComplainantto amendhis Complaintyet again wouldbe extremelyprejudicialto Respondentbecause (a)itwould be anundueburdentorequireit, for a secondtime, toreviseitsAnswer andMotionto Dismisstorespondto new facts and allegations (particularly sinceRespondentbasedits Motion to Dismissinpart on the fuct that Mr, Lo·Yu-Sun isnot a certifiedACDBE), and (b)Respondent's legal positionbasbeen exposedto Complainant since Complainanthas already seenRespondent's response totheinitial and amended ccmplaints; (6) Complainant intentionallylied in a fraudulentmannerinhis Complaint andhas acted in bad faith; (7) Complainant's conduct and representations

### in thisproceeding are inconsistent withthe Part 23 andPart 26 requirements thatthe socially and economically disadvantaged individual maintain ownership and control overthebusiness; Mr. Sun broughtthe Complaintinhis individual capacity as the owner andoperator ofChina First Express and Manchu Wok; Respondenthas already submitted to FAA extensive correspondence concerning matters raised in the Complaint all ofwhichhave come from

orbeen directed to Mr. Sun; Respondent has norelationshipwith the actual owner of Sun's Inc., .Mr. Yu. The latter has notbeeninvolved in anyrecentdiscussions or communications withRespondentregarding ChinaFirstExpressorManchuWok, and has had no rolein thisproceeding. Decision TheFAAhereby grants Complainant's SecondMotionto Amend Complaint. A1; Complainantasserts, theproperidentificationofthe parties tothis proceedingwill eliminate anywaste of time andresources inhaving to correctthe confusion later on, and will facilitate the efficiency ofthe proceeding.

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-4

### 5

**-~- -------rruwever;the'FM~~ot.ioo.t4-Artlend.:wifb**  relnc:tance, 

## m partbecausePart 16 is an accelerated administrativeprocess, intendedto expedite substantially thehanding and disposition ohtirport relat-ed complaints. 61 Fvd Reg 53,998 (Qct. 16. 1996). Moreover, in a January 17, 2007letter, theFAA admonished Complainant thathis failure to support his September 14, 2006 Complaintwithsupportingdocumentation, as Part 16 expresslyrequires, hadalreadydelayed thisproceeding. And asRespondentpornts out, each timethat Complainanthas requestedto amend hisComplaint,ithasbeenserved on orabout the daythatRespondent's Answerwas due. The Complainant, whohasnow filed twomotionsto amend complaint,

### is thereforeplaced on noticethat evenunder FRC:P 15; "repeatedfailureto cure deficienciesby amendments previously allowed"
serves as a ground to deny leaveto amend. Fomsn, 371 U.S. at 182. Accordingly, no further motions to amend the complaintwill beentertained inthis proceeding. Analysis We look toFederal law when decidingthe issue ofcomplaintamendmentunderPart 16 be<:ause thatrule contains no specific amendmentprovision.FederalLaw sets a very liberal standard for parties to amend complamts. In fact, outrightrefusal to grant the leavewithout anyjustifyingreason mayconstitutes an abuse ofdiscretion andis inconsistent withthe spirit oftheFederalRules. F()man, 371 U.S. at 182. Rule 15 ofthe FRCPprovides that a partymayamenditscomplaint once "as a matterofcourse"before
a responsivepleading is served. Subsequently, the "partymay amend theparty'spleading onlybyleave ofcourtorbywritten consent ofthe adverseparty and leave shall befreely givenwhen justice so requires." Fed. R. Civ. P

.. 1S(a).
The Supreme Courthas interpreted "freelygivenwhenjustice so requires"to mean that "[i]nthe absenceofsny apparent ordeclaredreason- such as unduedelay, bad faith or dilatorymotive onthepart of the movant,repeated failure to curedeficienciesby amendmentspreviouslyallowed, undueprejudice to the opposing partybyvirtue of allowance ofthe amendment, futility ofthe amendment, etc.- the leave sought should, as therules require,be freely given." Foman, :371 U.S. at 182. See alsoDCDPrograms, Ltd. v. Leighton, 833 F.2d 1S3, 185 {91hCir. 1987) (Rule JS'spolicyoffavoring amendmentstopleadings shouldbe applied with "extremeliberality."). "Aliberal, proamendment ethos dominates theintentand judicialconstruction ofRule 15(a)." 3 Moore'sFederal

**Practice~** 15.14[1) (3d ed. 2003). Two additional factors are sometimesused to determine whetherjusticerequires granting leave to amend:judicial economy andwhether a partypreviouslyamendeda pleading. 3 Moore's Feder;U Practice'\]15.15[11 (3d ed. 2003). Theintentoftheruleis "to assist the dispositionoflitigation on themerits ofthecase rather than havepleadingsbecome ends in themselves." Sll!hmit OfficePark. Inc. v. U.S. Steel Collb 639 F.Zd 1278, 1284(5th Cir. 1981). 

### In exercising its discretion, "acourt mustbe guided bytheunderlyingpurpose ofRule 15 -tofacilitate decision onthe merits ratherthan on thepleadingsortechnicalities." DCDPrograms, 833 F.2dat 186. Courts

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT t-5I. 

### 6
s!multlfieely ·grrurt-iea'Ve-to amen&;imiJldiGt.iGnal-allegations 3Muor.e:s..Eederal Practice

'1!15.14[3] (3d ed. 2003). Also, a motionto makean amendmentis to beliberallygranted where from

**the~-acts** orcirc-mnstanc@s, iheplaintiffmaybe ableto state a claim. McCartin v. Norton, 674 F.2d 1317, 1321 (9thCir.1982).
We now tumto the factors usedto determinetheproprietyofa motion for leave to amend. Undue prejudice, considered 'by the courts to bekeyfactor, mayresult from delay bythemovantinrequesting leave to amend, butthe passage oftime alone is usually not enough to deny leaveto amend. SeeDCD Programs, 833 F.2d at 186)(delay byitselfis insufficient tojustifY denial ofleaveto amend). Jn most cases, courts will deny leave to amend only ifthe non-movingpartyis infactprejudicedbytbe delay. Prejudiceis especiallylikelyto existifthe amendmentinvolvesnew theories ofrecovery orwouldrequire additional discovery. 1fdelayis undulyexceasive, however, courtsmay deny leaveto amend on that factor alone. Moore'sFederal

**Prac~** '1!15.15[2) {Bender/Lexis on-line edition accessed May24, 2007). Complainant argues that Respondent would suffernoprejudice. Respondentdisagrees, arguing ithas been prejudiced becauseit wouldbe burdensome to require ittoreviseits pleadings a second time to respond to newfacts and allegations (particularly since Respondent based its Motion to Dismiss inpart on thefact that

### Mr. Lo-Yu-Sunis nota certified ACDBE);theirlegal position has been exposed to Complainant (i&, Complainanthas attemptedto amend its pleading after a responsivepleadinghasbeen · served); and Complainant waited toolongto file. Underthe caselaw, undueprejudice is likely to existifthe amendmentinvolves newtheories ofrecovery orwouldrequire additional discovery, orifthe delayisunduly excessive.
Itis unlikelythatRespondent willbe required to conduct additionaldiscovery. Also, as a result oflris mistake, Complainantwill notbe seekingnew theories ofrecovery. Complainant's allegations havenot substantially changed andthere shouldbeno need for "a great deal ofadditional discovery." Atcl:tinson v. District ofColumbia. 73 F.3d418, 426 (D.C. Cir. 1996). Moreover, Respondent shouldnot havebeen surprisedbythe proposed amendment since the subleases arebetweenRespondent's lessee, Host, and ChinaFirst Express and ManchuWok and Sun's 1uc., not Lo-Yu-suu. Respondent's Februaty 15, 2007 Memorandum on Points and Authorities, p. 11.
In addition, dueto the fact thatundertherules ofPart 16, Complainantwould havethe right to file a new complaintunderthename of"Sun's Inc"ifFAAwere to deny Complainant's SecondMotionto Amend and dismissthe complaint inits entiretywithout prejudice, anyprejudice to Respondent is minimized. TheComplainant'sproposed amendmentwill not change the factualbases ofhisclaims. The Complaint was written as ifLo-Yu-Sunwas anACDBE- the amendmentmerely substitutesthe correct party, Sun'sInc. Theproposed amendrrl.entwillnotunduly increase discovery, delaytheproceeding, or surprise Respondent. Youell v. FNU Russell, 2007 WL709041 (D. N.M. 2007).

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1·6

### 7

--- ·--4H'fie""!"'e,-Ffive-months-®es-net-eenstituteundue-delay.,..especially since theJ:nll-1\IDS still in thepieadings stage. SeeDoev. McMillan 566F.2d 713,720 (D.C.Cir.1977) (upholding
adenial ofleaveto amend te add anew allega-tion and anew defendant morethan thlee years afterlitigation began), cert. denied, 435 U$. 969 (1978); Jonesv. Childers, 18 F.3d 899, 909 (11'" Cir. 1994)( courtfound undue delaywhenplaintiffmotioned to add affirmative defenses fourye.ars 

### after complaintfiled); and DRR, L.L.C. v. Sears, i 71 F.R.D. 162, 167-168 (D. Del. l997)(party's delay in movingto amend complaint two and one-halfyears after entry ofsummaryjudgmentconstitutedunfairprejudiceto opposing party). Badfaith is defined as "dishonestyofbelieforpurpose." Black'sLawDictionary(8thed. 2004). A "dilatory"motive is one that tendsto causedelay. ld. TheRespondents describe

### Mr. Sun'spractices as "negligentand dilatory" and allegethathehas "intentionallyliedin a fraudulentmanner." PortofSeattle's Opposition to Complainant's SecondMotion to AmendComplaint(Feb. 23,2007),p. 4. However, the recordreveals onlynegligence on Mr. Sun'spart. As

### Mr. Sun argues, ithasbeenreadily apparent thathisclaim concerns the entitycertified as theACDBE. Moreover, RespondentPortacknowledges thatthe subleasesbetweenComplainant and Host International, 1nc. werewritten asbetween "Sun's Inc."andH<>st, and not "Lo-Yu-Sun" endHost. SothePortwas at least onnoticethattheACDBEwas "Sun's Inc." (or "Sun's 

### Inc. dlb/a ChinaFirstRestaurants'') andnot "Lo·Yu-Srro." Respondent's February 15, 2007Memorandum onPoints andAuthorities,p. 11. Concerningrepeated failure to curedeficienciesbyamendmentspreviously allowed,this is a factor occasionallyusedbythecourts when considering denialofa motionforleave
to amend. Thecaselaw indicates that a court's discretionoveramendmentsis especially broad "wherethecourthas already given a plaintiffoneormoreopportunities to amend his complaint." DCDPrograms, 833F.2d at 186,n. 3, citing

### Mirv. Fosburg, 646F.2d 342, 347 (9th Cir. 1980). Here,whileComplainanthas mo\ledfor a second opportunityto amendhls complaint,theFAAdoesnot view this fact as enoughto outweighthebenefit
tothisproceedingofhaving identification ofthepartiescorrectedearly on duringthe pleadings stage. Also,iftheFAA were to denyComplainant's SecondMotion to Amend, underthe rules ofPart 16and dismiss the complaint inits entiretywithout prejudice, Complainantwouldhavetheright to .file a new complaintunderthenameof "Sun's 1nc." Requiring Complainantto refilewould further delaythisproceeding and waste FAA's limitedresources. Concerning futility, courtswill generally not grant leaveto amendwherethe amendment merelyrestatesthe samefacts as the original complaintin differentterms, reasserts a claim onwhichthe courtpreviouslyruled, fails to state a legaltheory, or couldnot withstand amotiontodismiss. Moore'sFederalPractice, '1!15.15[3) (Bender!Lexis onlineedition accessedMay.24, 2007). Theproperpartytothisproceedingis "Sun's

## me" ratherthan "Lo-Yu-Sun." It would not befutile toperlllitComplainantto amendits Complaintto correctits errorinnamingtheproperpartybringingthecomplaint. Complainantisnot slinplyrestatingthe facts in differentterms. Nor is hereasserting a previouslyruled claim orfailingto state a legal theory. See Bankv. Pitt,928 F.2d 1108,

HICKS ANSWERTO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-7

# fi

. ' 8 --------1:ti-2i1-1Jh-EiT=--19911(iliaintiff.slloul4-hav.Mprpoctunityto amendwhep.m=or"'e'-'c""ar,_,e 00 fu..,l""ly,_______ _ drafted complaintmight state claim)( overruled inpartonothergrounds). Concerningjudicial economy, courts generallyconsiderhowtb.e amendmentwould affect theuse of judicialresources and the impact onthejudicial system. Moore's federal Practice, '1!15.15[1} (Bender!Lexis on-line editionaccessedMay24, 2007)). If anything, granting Complainant's SecondMotionto AmendComplaintwill actually expeditethese proceedings. As stated before, iftheFAA weretodenyComplainant's Motion anddismissthe complaint in its entirety, it would necessarilybewithout prejudiceto refiling. Assuming Complainantwouldrefile, denying Complainant's Motion would onlydelaythe dispositionon themerits. In granting Complainant's Motion, the FAA finds noprejudicetothe administration ofPart 16. Moreover, the publichas an interest in promptresolution ofdisputes.

**ACCORDlNGJ~Y,** it isordered that: Complainant's SecondMotionto Amend Complaintis granted. No further motions to ailJ.end the complaintwill beentertainedinthisproceeding? Respondent'sMotionto StrikeComplainant'sUnautholi:oed Replyto Respondent's Oppositionto Complainant's SecondMotion to Amend ComplaintandRespondent's Motion to Strike Complainant's Untimely Oppositionto thePort's MotiontoDismiss FirstAmended Complaint are granted.3 Respondent's Motionto DismisstheFirstAmended Complaint is denied as moot dueto tb.e admission ofihe second=ended complaintinthis proceeding. Respondent'sMotion to BarComplainantfrom Submitting an UntimelyReplyto Respondent's Answer to theFirstAmended Complaintisdenied asmoot dueto the admissionofthe second amended complaintinthisproceeding.

2 In paragraph 6.2 ofthe second amended complaintunder "Prayer ForRelief'Complainantrequests damages for its rel!So!lllb!e expenses and losses. The FAA is not authorized to award monetary damages underPan 16. ReliefunderPart 16 is lllnitedto orde:rs ofcompli3lleepursuant to section 16.109(a).
3 Complainant's "reply" ofMarch 2, 2007, in support ofits second motion to amend the.complaintwas an unauthorizedpleading, Section 16.!9permits a motiun and an answerto the motion. ltdoes notperxnit a reply. Complainant'sMarch 7, 2007, opposition toRespondent's February 15,2007,Motionto Dismiss First Amended Complaintwas lllltimely. Under section 16. !9(c) ananswer to .a motion mustbe filed witbin 10 d>ys. Even addlng an additional3 days under the mail ruleunder 16.17(c), Complainant'sresp()llse to the motion to dismiss was untimely. Further, Complainant <lid notprovide any eJ<:planationfor theuntimely filing and the recordprovides none.

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-8

### 9

Respefli!e'!lt may file :;m :;mswerto tlle second amended complaint, with a motion to dismiss ifappropriate, mthin 30 days ofthe service date ofthis order. Thereafter Complainantmay file aReply and Respondent aRebuttal pursuantto the 

### time periods in 14 C.F.R. § 16.23(e), (f). No otherpleadings 

### will be accepted from eitherparty inthis proceedingunless requestedbythe FAA.

David L. BeJJilett Director, Office ofAirport Safety and Standards4 

### SE.P 

### 12: 2007

4TheFAA's Office for Civil Rights has authorityto adjudicate and Issue decisions in eases involving civil rights allegations filed under 14 CFRPart 16, suchas this case.. On February 22,2002,the Directorofthe Office ofAi.Iport Safety and Standards delegated to the Deputy AssistantAdministratorforCivilRightsthe authority to prepareand issue director's determinationspursuantto 14 CFR Part 16 OnJannary 17, 2007, the Deputy .AssistantAdministratorfor Civil Righls issued the first orderin this case granting the first motionto amend complaint. Since that time theposition oftheDeputyAssistantAdrn:in:istrator for Civil Rightshasbecome vacant without an acting official. Inthe interimthe Director, Office ofSafety and Standards shaU act as the decision maker.

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-9

### •
CER1'IFJCA.l'E OFSERVICE

I HEREBY CERTIFYthat on September ( 

## <Q ,2007, I caused tobeplaced

### :in the United States mail (firstclass,postagepaid) orpersonallydelivered a true copyofthe foregoing document addressto: Mr. RodneyL Umberger, Jr. Ms. ClaireJ.:Hur Williams, Kastner & Gibbs, PLLC 601 Union Street, Suite4100 Seattle,WA 98101-2380 Fax (206) 628-6611



### · Mr. Craig R. Watson

General Counsel Port ofSeattle P.O. Box 1209 Seattle, WA 98111-1209 

### Mr. Arthur

### P. Berg 

### Mr. Daniel S. Reimer Kaplan, Kirsch & Rockwell LLP 730 FifthAvenue, Suite 900 New York, NY 10019 Fax (646) 514-5440 FAAPart 16 AllportProceedings Docket (AGC-610)
Office ofCivil Rights, ACR-4



# ~b~~AS/irJ ShanceJefferson Airports andEnvironmental LawDivision Office ofthe ChiefCounsel 10

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-10

### 709 F.Supp.2d432 United States District Court, E.D. Virginia, NorfolkDivision. BUILDERS MUTUAL INSURANCE COMPANY, Plaintiffand CounterclaimDefendant, 

### v. DRAGASMANAGEMENT CORPORATION, Defendant, Counterclaim Plaintiff, Crossclaim Plaintiff, and Crossclaim Defendant, and Firemen'sInsurance Company of

Washington, D.C., Defendant,

Crossclaim Defendant, and Crossclaim Plaintiff, and Dragas Management Corporation, Third-PartyPlaintiff, 

### v. Hanover Insurance Company and

Citizens Insurance Companyof America, Third-PartyDefendants. Civil Action No. 2:09cv185. 

### IMarch 24, 2010.

Synopsis Background: Insurer brought action against insured homebuilder seeking a declaratory judgment that it owed no duty to defend nor to indemnify for claims relating to "Chinese drywall," joining another insurer as a defendant. Insured filed a counterclaim for declaratory relief and breach of contract against insurer seeking a declaration that insurer did owe a duty to defend and indemnify, as well as seeking damages for drywall-related losses and insurer's bad faith in denying coverage. Insured filed a cross claim against another insurer, seeking the same relief. Insurers moved to dismiss.

Holdings: The District Court, Rebecca Beach Smith, J., 

### heldthat:

[ll 

### Virginia law applied to interpretation of policies; l 2

### l insured failed to state claim for breach of contract arising out ofcoverage denial; and

l3l 

### insured failed to state claim for bad faith.

Motions to dismiss granted.

West Headnotes (8)

1 11 

### Federal Courts r,;=Conflict ofLaws; Choice ofLaw
In a diversity suit, district court must apply the choice of law rules ofthe forum state.



### 1Cases that cite this headnote

[ZJ 

### Insurance

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2-1[3]

[4] PPlace ofcontracting or performance Virginia insurance law applies the law ofthe place where an insurance contract is written and delivered.

1 Cases that cite this headnote

Insurance "'"'LiabilityInsurance Insurance t=Bad faith and unfair practices; p1.mitive damages Under Virginia choice of law principles, law of Virginia, where insurance policies were delivered to insured homebuilder, rather than law of North Carolina where policies were allegedly written and mailed, applied to interpretation of commercial general liability (CGL) and umbrella policies and bad faith claims arising out ofinsurer's denial ofcoverage thereunder.

Cases that cite this headnote

Insurance f?Place ofcontracting or performance Critical inquiry, under Virginia law, in determining which law applies to an insurance contract is not from where the policies were delivered, but rather to where the policies were delivered.

1 Cases that cite this headnote

[SJ FederalCivil Procedure ccPMotion not favored Motions to strike are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic. Fed.Rules Civ.Proc.Rule 12(f), 28 U.S.C.A.

3 Cases that cite this headnote

[ 6

1 Declaratory Judgment ccPGrounds ofmotion
To the extent that the issues involved m insured homebuilder's counterclaim against commercial general liability (CGL) insurer, alleging that insurer owed duty to defend and seeking declaratory judgment that insurer had duty to indenmify, were repetitive, duplicative, or overlapped those raised in insurer's complaint, as well as those issues raised on the duty to defend and the duty to indenmify in

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2·2the crossclaim against another, insurer failed to show the prejudice necessary to warrant striking those cotmts of insured's counterclaim, since the issues were to be addressed ultimately in the lawsuit. Fed.Rules Civ.Proc.Rule 12(f), 28 U.S.C.A.

Cases that cite this headnote

[?J Insurance

[8] iF Insured's liability for damages Insured homebuilder failed to allege any facts to suggest it had a legal obligation to remediate defective "Chinese drywall" as damages, other than a voluntary business decision by insured after initiating its own letter inquiry to homeowners, as required to state breach of contract claim against insurers under Virginia law arising out of their denial of indemnity coverage, under provisions of commercial general liability (CGL) and umbrellapolicies governing such legal obligations, for costs ofremediationplan.

Cases that cite this headnote

Insurance C=Iuvestigations and inspections Because insured homebuilder had failed to plead a claim for indemnity coverage from commercial general liability (CGL) insurer with respect to costs of remediation plan for defective "Chinese drywall," insured could not state claim for bad faith against insurer in allegedly failing to perform a proper investigation before denying coverage under Virginia law.

Cases that cite this headnote

Attorneys and LawFirms *433 Danny Mark Howell, Michael Thomas Marr, Mikhael David Charnoff, Sands Anderson Marks & Miller, McLean, VA, Lisa Taylor Hudson, Sands Anderson PC, Douglas Aaron Winegardner, Sands Anderson Marks & Miller PC, Richmond, VA, for Builders Mutual Insurance Company. Kristan Boyd Burch, Richard Johan Conrod, Jr., William Edgar Spivey, Kaufman & Canoles PC, Norfoll,, VA, Kali Nneka Bracey, Lorelie Sue Masters, Matthew L. Jacobs, Jenner & Block LLP, Washington, DC, for Dragas Management Corporation. John Becker Mumford, Jr., Kathryn Elizabeth Kransdorf, Hancock Daniel Johnson & Nagle PC, Glen Allen, VA, for Firemen's Insurance Company of Washington, D.C. Thomas Simpson Garrett, Harman Claytor

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2-3Corrigan & Wellman, Richmond, VA, for Hanover Insurance Company and Citizens Insurance Company ofAmerica.

MEMORANDUM OPINION
REBECCA BEACH SMITH, District Judge. On April23, 2009, plaintiffBuilders Mutual Insurance Company ("BMIC") commenced 

### *

434 this action seeking a declaratory judgment that it owes no duty to defend nor to indemnify defendant Dragas Management Corporation ("Dragas") for injuries and property damage related to "Chinese drywall." On June 22, 2009, Dragas filed a Counterclaim for Declaratory Relief and Breach of Contract against BMIC seeking a declaration that BMIC does owe Dragas a duty to defend and to indemnify, as well as seeking damages for drywall-related losses and BMIC's bad faith in denying coverage. On that same date, Dragas filed a Crossclaim against defendant Firemen's Insurance Company of Washington, D.C. ("FIC"), seeking the same relief as it had against BMIC, but omitting the claim ofbad faith. On July 13, 2009, BMIC filed a Motion to Strike Counts I and II and to Dismiss Counts III and IV of the Counterclaim. 1 On July 21, 2009, FIC filed a Motion to Dismiss Count III of the Crossclaim. All motions have been fully briefed, and a hearing was held on March 12, 2010, on these motions. The matters are now ripe for review. 2 I. TheInsurance Policies Dragas has purchased five insurance policies relevant to the present motions,' three of which are BMIC policies and two ofwhich are.FIC policies.' The first BMIC policy, Policy No. CPP 0013394 03, is a Commercial Package Policy for the period of February 5, 2006 to February 5, 2007 ("2006 BMIC Policy"). The second BMIC policy, Policy No. CPP 0029923 01, is a Commercial Package Policy for the period ofMarch 1, 2008 to March 1, 2009 ("2008 BMIC Policy"). Coverage under both of these policies is limited to $1 million per occurrence and $2 million aggregate, with a $100,000 per occurrence deductible. The third BMIC policy, Policy No. UMB 0008545 00, is a Commercial Umbrella Policy for the policy period of March 1, 2008 to March 1, 2009 ("2008 BMIC Umbrella Policy"). Coverage under the 2008-2009 Umbrella Policy is limited to $7 million per occurrence and $7 million aggregate, with a $10,000 retention. The two FIC policies, which share the Policy No. CPA 0120994-10, are both for the period ofFebruary 5, 2007 to Febmary 5, 2008, with the first being a Commercial General Liability Policy ("2007 FIC Policy"), and the second being a Commercial Umbrella Policy ("2007 FIC Umbrella Policy"). The 2007 FIC Policy is limited to $1 million per occurrence for bodily injury and property damage and $2 million aggregate, with a $!million limit for personal injury. There is a $250,000 per occurrence deductible applicable to property damage liability. The 2007 FIC Umbrella Policy is limited to $2 million per occurrence and $2 million aggregate.

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2·4Among ihe BMIC and FIC policies, there are three commercial general liability ("CGL") policies: ihe 2006 BMIC Policy, the 2007 FIC Policy, and ihe 2008 BMIC Policy. Under all three of ihese *435 CGL policies, the insuring agreement covers "those snms ihat [Dragas] becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which [the] insurance applies."s The insurers furiher have the "right and duty to defend" Dragas against any "suit" seeking such damages. In addition to the three CGL policies, there
are two nmbrella policies at issue: the 2007 FIC Umbrella Policy and the 2008 BMIC Umbrella Policy. The insuring agreement of ihe 2007 FIC Umbrella Policy is essentially identical to ihe underlying CGL policy, agreeing to pay the "ultimate net loss" ihat Dragas becomes "legally obligated to pay as damages because of 'bodily injury' or 'property damage' " caused by an "occurrence." The language in the 2008 BMIC Umbrella Policy varies slightly, covering "ihe 'ultimate net loss' in excess of the 'retained limit' because of 'bodily injury' or 'property damage' to which [ihe] insurance applies." "Ultimate Net Loss" is ihen defined as "ihe total snm .. . that the insured becomes legally obligated to pay by reason of settlement or judgments or any arbitration or oilier alternate dispute meihod entered into with [BMlC's] consent." The 2008 BMIC Umbrella Policy covers only ihose sums in excess ofihe "retained limit" ' or the "available limits of 'underlying insurance.' " In snm, ihe BMIC and FIC umbrella policies are triggered when the underlying CGL insurance is exhausted. IL FactualHistory In early 2009, Dragas learned of potential third-party injury and property damage as a result of the installation of Chinese drywall by one of its subcontractors, Porter-Blaine Corporation ("Porter-Blaine"), in over 70 homes built by Dragas. (Countercl.

**~~** 19-24.) Based on information provided by Porter-Blaine, Dragas sent a letter on February 11, 2009, to homeowners whose homes were suspected ofcontaining Chinese drywall requesting access to their homes for inspection. 

### (Jd.

**~** 22.) Dragas received reports from the homeowners of various health symptoms and property damage alleged to have been caused by the defective drywall, including damage to a HV AC system, an exploding microwave, and various physical ailments. 

### (Id.

**~** 25-27.) Around the same time, Dragas filed insurance claims for its potential losses from the defective drywall under its CGL insurance, including ihe BMIC and FIC policies. Dragas entered into a series of correspondence with BM!C and FIC through BM!C's agent, Capstone ISG ("Capstone"), and through FIC's agent, Berkley Mid-Atlantic Group, LLC ("Berkley"). On March 11, 2009, Dragas sent letters to both

**~apst?ne** and Berkley indicating Dragas' mtentwns to begin remediation of the defective drywall immediately, attaching a proposedremediationplanfor the insurers to review. (Id

**~53;** Dragas' Opp'nFIC's Mot. Dismiss Ex. 1.).

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2-5After a series of meetings and correspondence with the insurers and their agents, Dragas sent BMIC a letter dated April 1, 2009, in which Dragas indicated it was interpreting BMIC's failure to object to the remediation plan as an indication of its consent. (BMIC's Mem. Supp. Mot. *436 Dismiss Ex. E.) In a letter dated April 6, 2009, BMIC denied Dragas' claim for coverage of drywall-related losses. (Countercl.

**~** 60.) On April 23, 2009, BMIC commenced this action seeking a declaratoryjudgmentthat it owes no duty to defend nor to indemnify Dragas for drywall-related claims, joining FIC as a defendant. By letter dated May 12, 2009, FIC also denied Dragas' claim for coverage. (Crosse!.

**~** 26.) On June 9, 2009, BMIC sent another letter agreeing to defend Dragas against any drywall-related lawsuits, subject to a reservation ofrights. (Countercl.

**~** 81.) On June 16, 2009, four complaints were in fact filed against Dragas for drywall-related damages in the Chesapeake Circuit Court. (BMIC's Mem. Supp. Mot. Dismiss Ex. F.) At the hearing on March 12, 2010, however, counsel for Dragas represented to the court that, because of the implementation of Dragas' remediation plan, those claims have been voluntarily dismissed by the homeowners and that no drywall-related cases are pending against Dragas at this time.

III. ApplicableLaw 1 11 1 21 Dragas has asked this court to apply North Carolina law to the interpretation of the BMIC policies. 6 In a diversity suit, this court must apply the choice of law rules of the foiTml state, which in this case is Virginia. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Virginia insurance law applies "the law ofthe place where an insurance contract is written and delivered." Buchanan v. Doe, 246 Va. 67, 70, 431 S.E.2d 289 (1993).
1 31 1 41Dragas argues that the BMIC policies were "written and delivered" in North Carolina because they were written by BMIC in that state and mailed from that location. Despite Dragas' contentions to the contrary, however, it is clear to the court that, as that phrase has been used in the past, the critical inquiry is not from where the policies were delivered, but rather to where the policies were delivered. See, e.g., CACI Intern., Inc. 

### v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154-55 (4th Cir.2009) ("Because St. Paul delivered the policies to CACI in Virginia, we apply Virginia law."); Admiral Ins. Co. v. G4S Youth Servs., 634 F.Supp.2d 605, 611-12 (E.D.Va.2009) (fmding, despite receipt of policy by insured's broker in Georgia, that "ultimate delivery" of the policy to the insured in Virginia required the application ofVirginia law). As BMIC delivered the policies to Dragas in Virginia, Virginia law applies to the policies' interpretation. Moreover, Dragas agrees that Virginia law applies to its clainl against BMIC for bad faith, as well as to its clainls under the FIC policies.' Therefore, this court will apply Virginia law to all claims.

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2-6IV. BMIC'sMotion to Strike BMIC has brought a Motion to Strike Counts I and II of the Counterclaim on the grounds that those counts are repetitive of the declaratory judgment sought in BMIC's Complaint. Count I of the Counterclaim alleges that BMIC owes Dragas a duty to defend Chinese drywall-related claims. Count II of the Counterclaim seeks a declaratoryjudgment that BMIC has a duty to indenmify Dragas for drywall-related damages. BMIC argues that these claims are identical to the declaratory *437 judgment sought in the Complaint, only inreverse.

[SJ Under Rule 12(f) ofthe Federal Rules of Civil Procedure, the court may, upon the motion of either party, "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Rule 12(f) motions are generally viewed with disfavor, however, "because striking a portion ofa pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic." Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir.2001). Thus, it is a "generally accepted view that a motion to strike for redundancy ought not to be granted in the absence of a clear showing of prejudice to the movant." 5C Charles Alan Wright & Arthur R. Miller, Federal Practice andProcedure § 1382 (3d. ed. 2004).

[61To the extent that the issues involved in Counts I and II of the Counterclaim are repetitive, duplicative, or overlap those raised in BMIC's Complaint, as well as those issues raised onthe duty to defend and the duty to indenmify in the Crossclaim against FIC, the issues will be addressed at the appropriate time in the underlying declaratoryjudgment action. The court sees no reason to strike Counts I and II of the Counterclaim at this juncture as repetitive, as such action accomplishes nothing, since these issues must be addressed ultimately in the lawsuit. Therefore, BMIC has failed to show the prejudice necessary to succeed on its motion to strike. Accordingly, the Motion to Strike Counts I andII ofthe Counterclaim is DENIED.

V. BMIC's andFIC'sMotions to Dismiss BMIC has moved to dismiss Counts III and IV ofDragas' Counterclaim on the grounds that each of those counts fails to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Likewise, FIC has moved to dismiss Count 

### III of the Crossclaim under Rule 12(b)(6) for failure to state a claim.

A. Standard ofReview To survive a Rule 12(b)(6) motion, a complaint must "aver enough facts to state a claim to relief that is plausible on its face." See Bell At/. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint's "[f]actual allegations must be enoughto raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955. Although the court must accept as true all factual allegations of

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2-7the complaint, 

### see id. at 555-56, 127 S.Ct. 1955, the court need not accept as true legal conclusions that are couched as factual allegations. I d. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). All elements of the complaint must be at least "suggested by the facts." 

### See id. at 569, 127 S.Ct. 1955.

B. Count Ill: Breach ofContract Count III of the Counterclaim and the Crossclaim seek damages for breach of contract on the grounds that B:MIC and FIC have breached their duty to indemnify Dragas for remediation costs. To survive the motion to dismiss with respect to Count III, Dragas must allege facts sufficient to suggest that its losses fall within the scope of the insuring agreement. Cf Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 636 (4th Cir.2005) (applying Virginia law) ("A policyholder bears the burden of proving that the policyholder's conduct is covered by the policy."); Detroit Water Team Joint Venture v. Agric. Ins. Co., 371 F.3d 336, 339 (6th Cir.2004) ("It is well-established *438 that an insured has the initial burden ofproving that its losses fall within the scope of the policy's insuring agreement."). Thus, Dragas must allege sufficient facts to support the conclusion it has become legally obligated to pay sums as damages because of bodily injury or property damage that is caused by an occurrence." Dragas contends that it has properly pled a legal obligation to pay sums as damages by seeking coverage for the costs of its remediation plan. In response, B:MIC and FIC contend that Dragas has not adequately pled it was "legally obligated to pay" sums "as damages," arguing that Dragas' remediation plan was voluntary and undertaken without the legal obligation that would arise from a lawsuit or government regulatory action. 9 For the following reasons, the court agrees with the insurers at thisjuncture. Courts are split as to whether a "legal obligation" to pay can arise before a lawsuit is filed against the insured. Compare Detroit Water Team, 371 F.3d at 339 ("[T]he term 'legal obligation' requires either a judicial determination of liability or a settlement between the insurer, insured and the claimant

...."), with Potomac Ins. ofIll. v. Huang, No. 00--4013-JPO, 2002 WL 418008, at *10 n. 3 (D.Kan. Mar. 1, 2002) (fmding insured was "legally obligated to pay" even though third-party lawsuit had never been filed, as neither Kansas case law nor the policy language made a third-party suit a condition precedent to the insurer's obligation to pay). Indeed, the issue as to whether an insured may incur a "legal obligation" to pay before a lawsuit has been filed against it has not been addressed under Virginia law. However, even if a "legal obligation" to paymay arise before a lawsuit has been filed in Virginia, such circumstances would be rare. Cf Potomac, No. 00--4013-JPO, 2002 WL 418008, at *10 n. 3 ("[T]he court has been tmable to locate another Kansas case in which the insured proactively settled a third-party claim before the thirdparty even filed a lawsuit."). Courts are further split as to whether an insured can have a legal obligation to pay sums "as damages," if a third-party lawsuit

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2-8has not been filed. This disagreement usually arises in the context of environmental remediation costs, when a govermuent agency seeks to compel an insured to clean up pollution damage. See Morrow Corp. v. Harleysville Mut. Ins. Co., 101 F.Supp.2d 422, 433-35 (E.D.Va.2000) (collecting cases). Some courts, relying on *439 the distinction between law and equity, have held that even a formally filed lawsuit, if that suit seeks restitution for clean-up costs, does not seek "damages" within that term's technical meaning. See, e.g., Md. Cas. Co. v. Armco, Inc., 822 F.2d 1348, 1352 (4th Cir.1987) (applying Maryland law). Other courts, however, have found that, even absent a formally filed lawsuit, enviromuental clean-up costs incurred in response to the requests of a govermuent agency constitute "damages" within that term's "ordinary meaning." See, e.g., Bausch & Lomb Inc. v. Utica Mut. Ins. Co., 330 Md. 758, 781-82, 625 A.2d 1021 (1993) ("To the extent it suggests that the term 'damages' imports a distinctively legal meaning in insurance matters, Armco misperceives the law of Maryland.... The reasonably prudent layperson does not cut nice distinctions between the remedies offered at law and in equity."). Under Virginia law, this district previously held that a third-party lawsuit seeking restitution for enviromuental remediation does in fact seek "damages," as that term is commonly understood. See Morrow, 101 F.Supp.2d at 434--35. Nevertheless, as Morrow involved an actual lawsuit that had been filed against the insured, the court is aware ofno decision under Virginia law in which payments made voluntarily by an insured, in the absence ofa lawsuit or regulatory action, were found to constitute "damages" within the meaning of the standard CGL policy language.
1 71 Currently, Dragas has alleged no facts regarding the extent to which the remediation plan has been executed or why it was undertaken at thejuncture that it was. Importantly, Dragas has failed to specifically allege any threats oflawsuits by individual homeowners, or even that specific demands were made by the homeowners before the plan was implemented. While these facts may also affect other aspects of coverage, 10 at minimmu, there has to be some factual support for a legal obligation to remediate, other than a voluntary business decision by Dragas after initiating its own letter inquiry to homeowners. While this court is well aware ofthe public policy considerations noted by Dragas of avoiding further property damage, possible physical injury, and urmecessary litigation, and while this court may agree that Dragas made an appropriate and well-conceived decision to remediate from a business, public relations, and moral standpoint, this court is not free to rewrite the BMIC and FIC policies to further those ends. Pilot Life Ins. Co. v. Crosswhite, 206 Va. 558, 561, 145 S.E.2d 143 (1965) ("It is the function of the court to construe the language of the contract as written, and the court carmot mal<e a new contract for the parties different from that plainly intended and thus create a liability not assumed by the insurer."). Although Dragas alleges that it had a "legal obligation to the homeowners and occupants to attempt to mitigate problems apparently associated with imported drywall" (Countercl.

**~** 83.), Dragas has alleged no facts to support that conclusion. Moreover, as candidly admitted by Dragas' counsel at

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT2-9the hearing, Dragas voluntarily began its remediation plan before a lawsuit had been filed against it, and the four lawsuits that were filed against Dragas were voltmtarily dismissed by the homeowners, without a settlement agreement. Simply put, Dragas has failed to plead facts sufficient to support its conclusion of a "legal obligation" to pay sums "as darnages." 11 *440 Because Dragas has failed to allege facts that, taken as true, could lead to the conclusion that Dragas was "legally obligated to pay" Chinese-drywall related costs "as damages," Dragas has currently failed to state a claim upon which relief can be granted. Therefore, the Motions to Dismiss Count III are GRANTED. 12 However, the Defendant may AMEND its Counterclaim and Crossclaim, within fourteen (14) days from the date of this Memorandum Opinion, to allege facts to support a breach of contract claim, ifit can do so.

C. Count IV: Breach oftheImplied Covenant ofGood Faith andFairDealing Count IV of the Counterclaim seeks damages for breach of contract on the grounds that BMIC breached the implied covenant of good faith and fair dealing by failing to perform a proper investigation before denying coverage. 13 In addition to damages for the breach, Dragas seeks attorney's fees tmder Va.Code. Ann. § 38.2-209, which provides: Notwithstanding any provision of law to the contrary, in any civil case in which an insured individual sues his insurer to determine what coverage, if any, exists under his present policy or fidelity bond or the extent to which his insurer is liable for compensating a covered loss, the individual insured shall be entitled to recover from the insurer costs and such reasonable attorney fees as the court may award. However, these costs and attorney's fees shall not be awarded unless the court determines that the insurer, not acting in good faith, has either denied coverage or failed or refused to make payment to the insured under the policy

.... With respect to this provision, the insured must show that the insurer either denied coverage or refused to make payments under the policy to which the insured was entitled. Thus, courts have held that the existence ofcoverage is a prerequisite to a bad faith claim under Virginia law. See, e.g., Brenner v. Lawyers Title Ins. Corp., 240 Va. 185, 193, 397 S.E.2d 100 (1990) ("There can be no bad faith inrefusing to defend where there is no coverage under the policy."). [SJ AlthoughBMIC initially denied coverage, it later agreed, before any lawsuits were filed, to defend Dragas subject to a reservation ofrights. (Countercl.

**~~** 60, 81.) Consequently, BMIC has not *441 refused to defend Dragas. Moreover, as discussed above, Dragas has failed to plead a claim for coverage with respect to the costs of its remediation plan. Accordingly, as coverage is a prerequisite to a claim for bad faith, the court GRANTS BMIC's Motion to Dismiss Count IV. However, Dragas may likewise AMEND its Counterclaim, within fourteen (14) days from the date of this Memorandum Opinion, to allege a claim of

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2-10bad faith, consistent with any amendment on Count III.



### VI. Conclusion For the foregoing reasons, BMIC's Motion to Strike Counts 

### I and 

### II ofthe Counterclaim is DENIED. BMIC's Motion to Dismiss Counts III and IV ofthe Counterclaim and PIC's Motion to Dismiss Count III of the Crossclaim are GRANTED. Pursuant to the legal conclusions stated above, this court will allow Dragas to AMEND its Counterclaim and Crossclaim, within fourteen (14) days from the date of this Footnotes Memorandum Opinion, to allege facts sufficient to state a claim upon which relief canbe granted onthe dismissed counts. The Clerk is DIRECTED to forward a copy ofthis Memorandum Opinion to counsel for the parties.
IT IS SO ORDERED.

All Citations 709 F.Supp.2d 432

After a Notice of Correction from this court, BMlC refiled the Motion to Dismiss separately from the Motion to Strike on July 14, 2009. 2 This case was under consideration for acceptance into multidistrict litigation in the Eastern District of Louisiana from October 7, 2009, until February 5, 2010, on which date the Judicial Panel on Multidistrict Litigation denied the transfer. See In Re: Chinese Manufactured Drywall Prods. Liab. Litig., MDL No.2047.
3 Although Dragas purchased other commercial insurance policies that cOuld be implicated by drywall-related losses, those other polices are not relevant to the present motions by BMIC and FIC.
4 The BMIC policies have been attached to the Complaint as Exhibits A, B, and C. The FIC policies are attached to Dragas' Crossclaim against FICas Exhibits 7 and 8.
5 The insurance applies only to "bodily injury" and "property damage" caused by an "occurrence," which is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The court does not reach the question ofwhether there was an uoccurrence" within the meaning of the policies, given its decision that a "legal obligation" to pay sums "as damages" has not been sufficiently alleged by Dragas in Count Ill of the Counterclaim and the Crossclaim. See infra Part V.B. and note 12.
6 Dragas agrees that Virginia law applies to the FIC policies, which were written and delivered in Virginia. (Dragas' Mem. Opp'n FIG's Mot. Dismiss 4 n. 6.)
7 See supra note 6.

8 This language is the same for all of the policies at issue, with the exception of the 2008 BMIC Umbrella Policy. See supra Part I. The requirements of the 2008 BMIC Umbrella Policy, however, are substantially similar, if not more restrictive, covering those instances in which Dragas "becomes legally obligated to pay by reason of settlement or judgments or any arbitration or other alternate dispute method entered into with [BMIC's] consent."
9 The !<legal obligation" required by the insuring agreement is a separate issue from the "voluntary payments" provision

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2-11extensively briefed by the parties. The voluntary payments provision reads that "[n]o insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent." This provision is a defense to coverage, see Safeway Moving & Storage Corp. v. Aetna Ins. Co., 317 F.Supp. 238, 243-244 (E. D.Va.1970) (finding similar provision to be a defense), and the court does not reach the issue in deciding these Motions to Dismiss. Similarly, the court does not reach the "no action" clause, on which FIC relies, as it also provides the insurer with a defense based upon the insured's failure to comply with the terms of the policy before filing suit against the insurer. Because the court does not reach these provisions asserted by the insurers, the court also does not reach Dragas' waiver and estoppel arguments asserted in response.
10 See supra note 9.

11 In point of fact, the legal obligation to pay these damages is the subject of multidistrict litigation in Louisiana, with the liability of individual entities, such as suppliers, manufacturers, and installers, yet to be determined. See In Re: Chinese Manufactured Drywall Prods. Liab. Litig., MDL No.2047. Indeed, one reason the Judicial Panel on Multidistrict Litigation denied the transfer of this case, despite accepting other insurance actions, is the absence of underlying litigation against the insured. See Order Denying Transfer, Feb. 5, 2010; supra note 2.
12 As this court agrees with BMIC and FIC that Dragas has not alleged a "legal obligation to pay" drywall-related sums "as damages," this court does not reach the issue of whether Dragas has alleged facts to support an "occurrence" within the meaning of the policies. Nevertheless, the court notes that Dragas has failed to provide any legal support for the proposition that the intentional decision by a subcontractor to use a defective material constitutes an "accident," and therefore an "occurrence" for purposes of the CGL policies. See supra note 5. The court is aware, however, that "damage a subcontractor's defective work causes to an insured's nondefective work constitutes an occurrence." See Stanley Martin Companies, inc. v. Ohio Cas. Group, 313 Fed.Appx. 609, 613-614 (4th Cir.2009) (unpublished opinion applying Virginia law). 13 Unlike the Counterclaim, the Crosse!aim does not allege a claim of bad faith against FIC.

End of Document © 2015 Tl1omson Reuters. No claim to original U.S. Government Works.

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2-12

### History (4)

Direct History (1)

- - •
**"-"-~:~~---•** •••-•

**---~---~-,'' •-•~-----·•**  **o:-~~--•'-·'r ----~~**  **-~·•••r·--•-o-~,--•<••~- -:~-**  **~~-~· •o•~r~----~---"**  **---~----~-~--** ,• **,-"----~-~---~-~·r•,•** •' 1. Builders Mut. Ins. Co. v. Dragas Management Corp. "" 709 F.Supp.2d 432, E.D.Va., Mar. 24, 2010



### Related References (3)
2. Builders Mut Ins. Co. v. Dragas Management Corp. 709 F.Supp.2d 441, E.D.Va., July 15,2010

"" 3. Builders Mut. Ins. Co. v. Dragas Management Corp. 793 F.Supp.2d 785, E.DVa. , June 13, 2011

Judgment Vacated 

### by
4. Builders Mut. Ins, Co. v. Dragas Management Corp. """ 497 Fed.Appx. 313, 4th Cir.(Va.), Nov. 20, 2012

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT2-13McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) 6(1o Fair Empi.Prac.Cas. (BNA)

**:3'79..~**



### 387F.Supp. 24 UnitedStates District Court, E.D. California. Ellizabeth G. McDONALD, Individually and onbehalfofall persons similarlysituated, Plaintiff, 

### v. GENERAL MILLS, INC., et al., Defendants. Civ. 

### No. S-2553. 

### IJan. 21, 1974, Motion to Reconsider Dec. 5, 1974.

Female college student brought action against employers which had interviewed at the college aud which allegedly engaged in sex discrimination. The District Court, MacBride, Chief Judge, held that student was not required to first submit her case to state Fair Employment Practice Commission where that Commission did not have jurisdiction over sex discrimination in employment at the time that complaint was filed with Equal Employment Opportunity Commission; that EEOC was not required to refer the case to the FEPC; that even if EEOC directive which delegated authority to issue right to sue letters was promulgated in violation of the Freedom of Information Act, the invalidity of the directive did not preclude student from bringing her action on basis ofright to sue letter issued by district director; that allegation that plaintiff had been deterred from applying for employment because of practices of the employers was sufficient to entitle her to bring the action even though she had not actually applied for employment with auy of the employers; and _that college which student had attended would be added as a party defendant. Order accordingly.

West Headnotes (20)

!11 CivilRights <FExistence ofother remedies; exclusivity Where, at time that student filed sex discrimination cha1ge with Equal Employment Opportunity Commission, state Fair Employment Practice Commission did not have authority to investigate aud remedy acts of discrimination based on sex, student was notrequired to complain to the FEPC before turning to the EEOC. Civil Rights Act of 1964, § 706(b) as amended 42 U.S.C.A. § 2000e-5(c); West's Ann.Cal.Labor Code,§ 1419(±).

1Cases that cite this headnote

1 21 Civil Rights

**~Evidence,** hearing, aud determination Where state Fair Employment Practice Commission did not have
'/'·lBstl,.;:cvvNexr ©2015 Thomson f.Zeuters. No claim to original U.S. GovernmentVVorks.
HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3·1McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974)

**~.,...,..~----** 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas. (BNA) 379

... jurisdiction to remedy acts of discrimination based on sex at time that student filed complaint with Equal Employment Opportunity Commission, EEOC was not required to refer the case back to the state FEPC once the latter agency acquired authority over sex discrimination cases. Civil Rights Act of 1964, § 706(b) as amended 42 U.S.C.A. § 2000e-5(c); West's Ann.Cal.Labor Code,§ 1419(f).

1 Cases that cite this headnote

l 3l CivilRights c=Rightto sue letter or notice; official inaction Valid right to sue notice issued pursuant to Civil Rights Act of 1964 is a prerequisite to federal district court acquiring jurisdiction in an action under the Civil Rights Act of 1964. Civil Rights Act of 1964, 

### § 706(e) as amended 42 U.S.C.A. § 2000e-5(f).

Cases that cite this headnote

l 4l CivilRights

**,.~Evidence,** hearing, and determination [5] ministerial act which can be delegated to subordinates. Civil Rights Act of 1964, § 706(e) as amended 42 U.S.C.A. § 2000e-S(f).

Cases that cite this headnote

Civil Rights

**~?Evidence,** hearing, and determination Equal Employment Opportunity Commission has no discretion or judgment with respect to issuance of right to sue notices. Civil Rights Act of 1964, § 706(e) as amended 42 U.S.C.A. § 2000e-S(f).

Cases that cite this headnote

JGJ Civil Rights

**~!=Evidence,** hearing, and determination If directive delegating authority to issue right to sue letters did not comply with requirements of Freedom of Information Act, which is a part of the Administrative Procedure Act, it did not co1Iform to standards of the Administrative Procedure Act as required by the Civil Rights Act of 1964, and the directive would be invalid. 5

__ U_.S.C.A. § 552(a)(2)(C); Civil

**'/'{csil.c•iiN~:<J** © 2015 Thomson Reuters. No claim to original U.S. GovernmentWorks. 2
HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-2McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas. (BNA) 379

...

[7] Rights Act of 1964, §§ 706(e), 713(a) as amended 42 U.S.C.A. §§ 2000e--S(f), 2000e--12(a).



### 3 Cases that cite this headnote

Federal Courts (=Presumptions and bmden ofproof
Emden of proof on motion to dismiss for lack of subject matter jmisdiction is on the party asserting jmisdiction. Fed.Rules Civ.Proc. rule

12(b)(1), 28 U.S.C.A.

Cases that cite this headnote

l8l Federal CivilProcedure

**~PMotion** and Affidavits

[9] Equivalent ofrehearing in trial court under the federal rules is a motion for a new trial. Fed.Rules Civ.Proc. rule 59, 28 U.S.C.A.

1 Cases that cite this headnote

Federal Civil Procedure ""Identification ofParties; Fictitious Names

**------·---~--** There is no provJsJon in federal statutes or federal rules for the use of fictitious parties.

Cases that cite this headnote

JlOJ Civil Rights

**~PParties** Female student who alleged that she was a victim ofsex discrimination in employment on the part of a number of employers which had interviewed at college that she attended could not include, among the varmus defendants in her civil rights action, several "Does." Civil Rights Act of 1964, § 701 et seq. as amended 42 U.S.C.A. § 2000e et seq. Cases that cite this headnote

Jlll CivilRights

**~~Right** to sue letter or notice; official inaction Where female student who alleged that she was victim of sex discrimination on part of various employers which had interviewed at college which she was attending had followed all the appropriate administrative channels as mandated by the Civil Rights Act of 1964, fact that directive of the Equal

**'\/'4·~s-a.;:;~•,,'ltNe;>'};'** © 2015 Thomson Reuters. !\lo cla!m to original U.S. Government VVorks. 3

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-3McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 

### 7 Fair Empi.Prac.Cas. (BNA)66, 10 Fair Empi.Prac.Cas. (BNA)

**379.~-----** ..- ... Employment Opportunity Commission delegating authority to issue right to sue letters was erroneously promulgated in violation of the Freedom of Information Act did not preclude the student from bringing civil rights action in federal court on the basis of right to sue letter issued by an EEOC district director. Civil Rights Act of 1964, §§ 701 et seq., 706(e) as amended 42 U.S.C.A. § 2000e et seq., 2000e-5(f).

8 Cases that cite this headnote

[121 CivilRights

[13] <?Administrative Agencies and Proceedings Neither action nor inaction of the Equal Employment Opporttmity Commission can affect a plaintiffs substantive rights under the Civil Rights Act of 1964. Civil Rights Act of 1964, § 701 as amended 42 U.S.C.A. § 2000e.

1 Cases that cite this headnote

Civil Rights rPleading Where employers had indicated an hire males, female student at college at which the employers were interviewing was entitled to bring civil rights action against the employers on the basis of allegation that she was deterred from maldng application and seeldng interviews with the employers because of their employment practices and it was not necessary that female student actually have applied for employment. Civil Rights Act of 1964, § 701 et seq. as amended 42 U.S.C.A. § 2000e et seq.; Fed.Rules Civ.Proc. mle 12(b)(6), 28 U.S.C.A.

4 Cases that cite this headnote

[l41 CivilRights ;;=Parties Federal Civil Procedure

**~Nonjoinder** in particular actions College which female student was attending at time that various employers conducted interviews at the college was a proper party to be joined infemale student's civilrights action against the employers and, since the court couldjointhe college as a party, it would do so rather than dismiss the action for failure to join an indispensable party. Civil Rights Act of 1964, § 701 et seq. as amended 42 U.S.C.A. § 2000e et seq.; Fed.Rules Civ.Proc. mles 12(b)(7), 19,28 U.S.C.A.

---..

### -~xpr'?_~~ference to interview_and ------·-·-·--·------··----

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT3-4McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair


### Empi.PC,ra:_:c'::.c:::a=-s.~(B~N:;-;A;;-)-:;37:;;9;- ..-.·--

2 Cases that cite this headnote

[151 Federal CivilProcedure

**;;~Pleading,** Defects In, in General Compliance with mle relating to class actions is not properly tested by motion to dismiss for failure to state a claim. Fed.Rules Civ.Proc. mles 12(b)(6), 23, 28 U.S.C.A.

2 Cases that cite this headnote

[16J Federal CivilProcedure !Pingeneral; certificationin general Although either plaintiff or defendant may move for determination of appropriateness of class action, court has independent obligation to decide the issue a11d need not wait for the parties to so move. Fed.Rules Civ.Proc. mle 23(c)(l), 28 U.S.C.A.

3 Cases that cite this headnote

[171 Federal Civil Procedure 

### G=In general; certification in general Where parties had not adequately



## ·---- enumerated the applicability or inapplicability of prerequlSltes for maintenance of class action, court would direct the parties to brief the issue for it; plaintiff had the burden of proof of showing that provisions for class action were satisfied. Fed.Rules Civ.Proc. mle 23(a, b), (c)(l), 28 U.S.C.A.

Cases that cite this headnote

(181 Federal Civil Procedure !F>Patiicular allegations FederalCivil Procedure Flmpertinent or scandalous matter Portions of complaint filed by female student which alleged discrimination in employment on part of employers who interviewed at college that she was attending and which alleged that the employers failed to adequately inform women of employment opportunities or openings in traditional male positions, that the employers failed to hire women for traditionally male positions, and that the employers failed to adopt affirmative recmitment progratns would not be stricken as irrelevant, immaterial and impertinent but rather would be left for adjudication on the merits. Civil Rights Act of 1964, §§ 701 et seq., 706(g) as amended 42 U.S.C.A. §§ 2000e et seq., 2000e.-5(g); Fed.Rules

1,

..

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT3-5McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas. (BNA) 379

... Civ.Proc. rule 12(f), 28 U.S.C.A.

1 Cases that cite this headnote

[191 Federal CivilProcedure il=Nature and purpose Technical forms of pleading are not reqillred under the federal rules and the only real function ofthe federal pleadings is to give notice to the other party of the claim or defense. Fed.Rules Civ.Proc. rule 8(a), 28 U.S.C.A.

Cases that cite this headnote

[ZOJ Federal CivilProcedure

**;;~Parties,** Defects as to Where female student who alleged discrimination on part of employers who interviewed students at school that she was attending listed three of the defendants in the caption of the complaint but did not identify those defendants elsewhere in the complaint, motions to dismiss for failure to state a claim would be granted without prejudice of female student to amend the complaint within 30 days. Civil Rights Act of 1964, 

### § 701 et seq. as amended 42 U.S.C.A. § 2000e et seq.; Fed.Rules Civ.Proc. rule 12(b)(6), 28 U.S.C.A.

1 Cases that cite this headnote

Attorneys andLaw Firms *26 Blackmon, Isenberg, Moulds & Elicker, John F. Moulds, III, Sacramento, Cal., for plaintiff. Robert S. Daggett, Brobeck, Phleger & Harrison, San Francisco, Cal., for General Mills Inc., Union Oil. Oliver F. Green, Carl W. Robertson, Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for S. S. Kresge Co. Nathan R. Berke, Severson, Werson, Berke & Melchior, San Francisco, Cal., for Connecticut Gen. Life Ins. Co. William L. Hooth, Burroughs Corp., Detroit, Mich., for Burroughs Corp. *27 Jeffrey S. Goldman, Kalvin M. Grove, Lederer, Fox & Grove, Chicago, Ill., for General Adjustment Bureau, Inc., St. Paul Fire & Marine Ins. Co., Liberty Mut. Ins. Co. J. Keith McKeag, Downey, Brand, Seymour & Rohwer, Sacramento, Cal., for International Harvester Co., Good-year Tire & Rubber Co., General Motors Acceptance Corp. V. Barlow Goff, McDonough, Holland,

**·/IB·~.H~?l,/N~Kt'** ©

**20~15** Thomson Reuters. No claim to original U.S. Government VVorks. 6

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT3-6McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974)

**~~~--------·-----** 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas. (BNA) 379

... Schwartz, Allen & Wahrhaftig, Sacramento, Cal., for A. Teichert & Son, Inc. Forrest A. Plant, Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Cal., for Chicago Bridge & Iron Co., Grove Valve & Regulator Co., Libby, McNeill and Libby, NewYork Life Ins. Co., JohnHancock Mut. Life Ins. Co., ConnecticutMut. LifeIns. Co.
Bruce D. Starkey, Gen. Atty., The Hartford Ins. Group, Hartford, Conn., for Hartford Life Ins. Co. (The Hartford Ins. Group) note: not served as correct entity. Don T. Hibner, Jr., Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for J. C. Penney Co., Inc. Robert 0. Fort, Schei, Fort, Taylor & Pendergast, Sacramento, Cal., for Mut. Life Ins. Co., Mut. Trust Life Ins. Co. C. Rex Boyd, San Mateo, Cal., James A. Pezzaglia, Martinez, Cal., and George W. Terry, Jr., Atlanta, Ga., for Phillips Petroleum Co. John M. Schobel, Ralston Purina Co., St. Louis, Mo., for Ralston Purina Co. Paul A. Dezurick, Graham & James, San Francisco, Cal., for Sea-Land Service, Inc. David B. Johnson, Rust, Armenis & Matheny, Sacramento, Cal., for Sierra Pacific Power Co. Pillsbury, Madison & Sutro, Charles F. Prael, Charles E. Voltz, David A. Rotman, San Francisco, Cal., for Western Electric, Prudential Ins. Co. Russell, Jarvis, Estabrook & Dashiell, Robert W. Jarvis, Sacramento, Cal., for The Travelers Ins. Co. McDermott, Will & Emery, Harry Sangerman, Chicago, Ill., and Littler, Mendelson & Fastiff, Wesley J. Fastiff, San Francisco, Cal., for Jewel Home Shopping. Kronick, Moskovitz, Tiedemann & Girard, Edward J. Tiedemann, Sacramento, Cal., for Boise Cascade. Wright, Nolan & Green, Vincent S. Wright, David B. Green, San Francisco, Cal., for Reliance Ins. Johnson, Greve & Clifford, Claire H. Greve, Sacramento, Cal., for Milmesota National Life. Bronson, Bronson & McKinnon, Edwin L. Currey, Jr., San Francisco, Cal., for Chubb & Son, Inc. Equal Employment Opportunity Commission, Richard S. Cohen, Washington, D.C., amicus curiae. Opinion
MEMORANDUMAND ORDER
MacBRIDE, ChiefJudge.

Plaintiff brings this class action claiming tmlawful sex discrimination in the employment practices of 31 corporate defendants in violation of Title VII of the Civil Rights Act of 1964,

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT3-7McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair EmpLPrac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas. (BNA) 379

... 2000e et seq., and seeking injunctive relief, compensatory damages, costs, and attorney's fees. The factual setting is not complex. The Sacramento State College Graduate Placement Center sent employer recruitment visit forms to fmns which had shown an interest in employment interviews on campus. The visit forms apparently contained boxes which could be checked ifa frrm preferred to interview either men or women graduates. Each of the defendants checked the box which indicated a preference for male graduates. Plaintiff, a student at Sacramento State, was scheduled to graduate in June, 1970. She and the class she represents allegedly sought to use the services of the Sacramento State College Graduate Placement Center during the spring of 1970, but were purportedly 'deterred from making application for employment *28 and seeking an interview' with representatives of the defendants. In addition, two of the defendants allegedly circulated printed recruitment brochures on campus which referred exclusively to employment opportunities for men. Plaintiff claims that those employment practices are sexually discriminatory and are therefore violative ofthe Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. Plaintiff initially filed charges with the Equal Employment Opportunity Commission (EEOC) on May 15, 1970. The instant action was filed on August 23, 1972, pursuant to 42 U.S.C.A. § 2000e-5(f),l after right to sue notices were issued to plaintiff on August 8, 1972. A number ofmotions have been filed in this action by various defendants. In addition, several defendants have joined in each and every motion on file. As the motions on which my decision is based apply equally to all defendants, I shall refer to the defendants collectively rather than singling out the defendant or defendants who actually authored the particular motion under discussion. Ill At the outset, the Court is constrained to meet the challenges to its subject matter jurisdiction. Defendants argue first of all that subject matter jurisdiction is absent in this action for the reason that plaintiffs charges were never brought before the California Fair Employment Practice Commission (FEPC). Section 706(b) ofthe Civil Rights Act, 42 U.S.C.A. § 2000e-5(c) requires an aggrieved party, before filing a charge with the EEOC, to complain first to whatever state or local agency is authorized 'to grant or seek relieffrom such (unlawful employment) practice or to institute criminal proceedings with respect thereto.' Unless that requirement has been complied with, neither the EEOC nor this Court has jurisdiction to entertain the charge. Crosslin v. Mountain States Telephone and Telegraph Co., 422 F.2d 1028 (9th Cir. 1970). California's Fair Employment Practice Commission has authority to investigate and remedy discriminatory employment practices in California. However, on May 15, 1970, when plaintiff filed her charge with the EEOC, the FEPC did not have authority to investigate and remedy acts of discrimination based on sex. It was not until November 1970, that sex discrimination became an unfair employment practice under § 1419(f) of the California Labor Code. Calif.Stats.l970, c. 1508, p, 2994, § 3. Therefore the Civil Rights Act of 1964 did notrequire plaintiffto complain to the FEPC

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-8McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) _..;__ 

# ___ _ 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.PraC:cas. (BNA) 379

... before turning to the EEOC. Donohue v. Shoe Corporation of America, 337 F.Supp. 1357 (C.D.Cal.1972).'

Defendants argue that even though plaintiff may not have been obligated to file with a state agency in May 1970, nevertheless it was innunbent upon the EEOC itself to refer the case to the FEPC once the latter agency acquired authority over sex discrimination cases in November 1970. 1 21 The Court recognizes that Congress, in enacting the Civil Rights Act of 1964, intended to give each state which establishes the proper administrative machinery a reasonable opportunity *29 to deal with alleged employment discrimination problems arising in that state before the EEOC gets involved in the case. E.E.O.C. v. Union Bank, 408 F.2d 867 (9th Cir. 1969). However, my research has netted no authority which supports the view that an employment discrimination charge of which the EEOC acquired competentjurisdiction at the time the charge was filed, must be referred to a state agency which subsequently acquiJ:es authority to deal with such charges. In the Court's view, it would be counterproductive for the EEOC to come to grips with a discrimination charge for a substantial period of time, only to be required midstream to refer the matter to a state agency which comes into being subsequentto the filing ofthe charge.

The opinion in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972) does not support a contrary view. In that case the complaint filed a charge with the EEOC in Colorado without frrst complaining to the Colorado Civil Rights Commission. As that agency was empowered to take action on discrimination charges at the time the charge was brought to the EEOC, the EEOC held the charge in abeyance and referred the matter to the Colorado Commission for action before taking jurisdiction. The Supreme Court held that the procedure followed in that case was proper, noting that 'Nothing in the Act suggests that the state proceedings may not be initiated bythe EEOC acting on behalfof the complainant rather than by the complainant himself.' In effect the Court in Love found that where a complainant files a charge with the EEOC before frrst filing with an existing state agency as required under 42 U.S.C.A. § 2000e-5(c), the EEOC may file with the state agency on behalf of the complainant. Thus the complainant himselfmust be under a statutory obligation to file with a state agency before the EEOC may file on his behalf. As I have already determined that a complainant such as the plaintiff here, is under no statutory duty to file a charge with a state agency which comes into existence after the charge has been filed with the EEOC, Donohue v. Shoe Corporation ofAmerica, supra, the opinion in Love v. Pullman, supra, cannot be read to require the EEOC to so file on behalf ofthe complainant before it can assume jurisdiction over the case. Accordingly, I find that the fact that neither the plaintiffnor the EEOC filed charges with the FEPC does not deprive the Cmrrt ofjurisdiction in this matter. 1 31 Our inquiry into the jurisdictional bases ofthis action does not end here. There is no question that a valid right to sue notice issued pursuant to 42 U.S.C.A. § 2000e-5(f)(l)' is also a prerequisite to a



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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3·9McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas. (BNAJ379

..

**~-** federal district court acquiringjurisdiction in a Title VII action. Stebbins v. Continental Insurance Co., 143 U.S.App.D.C. 121, 442 F.2d 843 (1971). Neither party disputes that a notice was issued in the instant case by an EEOC district director. The problem, as defendants view it, is that the notice here was invalidly issued, thereby depriving this Court of jurisdiction. They argue that the commission is without authority to delegate to district directors the issuance of right to sue notices, and that, in any event, no valid delegation of that responsibility has been made by the commission. Those precise arguments were considered and *30 rejected by the Federal District Court for the Northern District of California in Stone v. E.D.S. Federal Corp., 351 F.Supp. 340 (N.D.Cal.1972). In that sex discrimination case, Judge Schnacke found that the issuance of a right to sue notice was 'no more than a formality' not involving the exercise of discretion and personal judgment, and that 'it would be foolish to hold that (the commission) cannot delegate these clerical tasks to subordinates.' He also found that the commission had in fact delegated the authority to issue right to sue notices in a directive contained in an official EEOC manual.
1 41 1 51On examining the pertinent statute, 42 U.S.C.A. § 2000e-5(f)(1). 4 I am in agreement with Judge Schnacke that the issuance of a right to sue letter is indeed a ministerial act, see Cox v. United States Gypsum Co., 409 F.2d 289, 291 (7th Cir. 1969), which can be delegated to subordinates. Kiug v. Lincoln National Life Insurance Co., 245 F.2d 848, 853 (5th Cir. 1957); Shreveport Engraving Co. v. United States, 143 F.2d 222, 227, (5th Cir. 1944) cert. denied, 323 U.S. 749, 65 S.Ct. 82, 89 L.Ed. 600; see Greene v. McElroy, 360 U.S. 474, 506, 79 S.Ct. 1400, 3 L.Ed.2d 1377, 1396 (1959); N.L.R.B. v. John S. Barnes Corp., 178 F.2d 156, 159 (7th Cir. 1949). Section 2000e-5(f)(1) provides in substance that upon the passage of one hundred and eighty days from the filing of charges with the EEOC or the expiration of any period of reference to the state, whichever is later, 'the Commission

. . . shall so notify the person aggrieved.' The EEOC has implemented that congressional mandate by directing that after the expiration of the statutory waiting period (in this case 180 days), a right to sue notice shall be promptly issued upon the demand of a charging party. 29 C.F.R. § 1601.25a (1972). 5 Thus the EEOC is left with no discretion or judgment with respect to right to sue notices. Takingjudicial notice of the fact that the EEOC has been innundated with cases since its inception, I find it appropriate to quote from Krug v. Lincoln National Life Insurance Co., supra, where the court stated at 245 F.2d page 853 that 'the delegation of duties of a public office, the duties of which are so manifold and voluminous that they could not be actually and personally performed by the person holding the office and charged with the performance ofits duties' is appropriate where the duties are merely ministerial.
Having found that the EEOC has the authority to delegate the issuance ofright to sue notices, the Court must next determine whether a valid delegation has in fact been made. The court in Stone, supra, based its fmding that a valid delegation had been made on an EEOC directive which provided that 'Issuance ofnotices ofright-to-sue
...

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-10McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 

### 7 Fair Empl.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas.""(B"'N"'A 7 ) "'379

... is hereby delegated to the field offices.' 6 While it is clear that the commission intended by that directive to delegate its authority with respect to right to sue notices, I am concerned that the directive is contained in an EEOC manual which is conspicuously labeled 'ADMINISTRATIVELY RESTRICTED'

.7 To understand my concern it is *31 necessary to delve into the commission's authority to promulgate rules and regulations. Congress expressly authorized the commission to make rules when it provided in 42 U.S.C.A. § 2000e-12(a) that 'the Commission shall have authority from time to time to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this subchapter.' However, that authorization was not without limitations, for § 2000e-12(a) goes on to require that 'Regulations issued under this section shall be in conformity with the standards and limitations of the Administrative Procedure Act (APA).' While the AP

### A is a complex piece of legislation, the Court finds it necessary to consider only that portion known as the Freedom of Information Act, 5 U.S.C.A. § 552 (hereinafter the Information Act). That section provides as follows: '(a) Each agency shall make available to the public information as follows: (1) Each agency shall separately state and currently publish in the Federal Register for the guidance ofthe public-

....gen (B) statements of the general course and methodbywhich its functions are channeled and determined, including the nature and requirements of all formal and infmmal procedures available; (C) rules ofprocedure,
... ''' .fp (E) each amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published

. . .. (2) Each agency, in accordance with published rules, shall make available for public inspection and copymg-

.... ubl (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the FederalRegister; and (C) administrative staff manuals and instructions to staff that affect members of the public; unless the materials are promptly published and copies offeredfor sale.' [ 6 l From the record before this Court, it is unclear whether or not the EEOC complied with the Information Act in issuing its delegation directive. No showing has been made by the plaintiff either that the delegation directive is not subject to public disclosure under the Information Act, or that the directive has in fact been made available to the public in accordance with the "'y'Ve.stl.-:"-'i\·Next' © 2015 Thomson Reuters. No claim to original U.S. GovernmentWorks. 11
HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-11McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) (36, 10 Fair Empi.Prac.Cas. (BNA) 379

... requirements ofthe Act It is quite possible that Judge Schnacke had before him a well developed record on this point, which enabled him to reach his decision in Stone that the delegation was proper. However, there is no indication inthat opinion that the court was confronted with the question of the applicability of the Freedom of Information Act to the delegation directive. On the surface, it would seem that the EEOC directive in question is contained in an 'administrative staff manual' and constitutes an 'instruction to staffthat affect a member of the public' which should be made available to the public. 5 U.S.C.A § 552(a)(2)(C). Furthermore, it is not inconceivable that other sections of the Information Act- quoted earlier-might also require public disclosure of the directive. Assuming, arguendo, that public disclosure of the delegation directive is required under the Information Act, the fact that the directive is contained in a mmmal labeled 'ADMINISTRATIVELY RESTRICTED' leads this Court to suspect that the directive is not infact opento public inspection. Ifthe directive does not comply with the requirements of the Freedom of Information Act- which is part of the APA-it obviously does not conform to the stm1dards *32 and limitations ofthe APA as mandated by Congress in 42 U.S.C.A. § 2000e-l2(a),' and it is consequently invalid.

1 71 The burden of proof in a Rule l2(b )(l) motion to dismiss for lack of subject matter jurisdiction is on the party asserting jurisdiction; in this case the plaintiff. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct 673, 86 L.Ed. 951, 955 (1942); Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320, 1324 (3rd Cir. 1972). In order to establish that this Court has acquired jurisdiction, plaintiff must show, among other things, that a valid right to sue notice has been issued. Stebbins v. Continental Insurance Co., 143 U.S.App.D.C. 121, 442 F.2d 843 (1971). Plaintiffhas failed to carry that burden in that she has not shown that the delegation directive in question was validly issued. Accordingly, this action must be dismissed for lack of subject matter jurisdiction.

While I fmd it unnecessary to decide defendants' other motions in light of my decision to dismiss on jurisdictional grounds, I nonetheless feel constrained to point out that a recently decided Supreme Court case, cited by none of the parties, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct 1817, 36 L.Ed.2d 668 (1973), casts considerable doubt on the viability ofplaintiffs claim as presently set forth in her complaint In that case, involving alleged racially discriminatory employment practices, Justice Powell enunciated the elements of a prima facie case in a Title VII action as follows: 'The complainant in a Title VII trial must carry the initial burden under the statute (Civil Rights Act of 1964) of establishing a prima facie case ofracial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.' 93 S.Ct. at 1824, 36 L.Ed.2d at 677. In the case at bar, plaintiff has not 

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-12McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) ?F,;trE'mpi.Prac.Cas. (BNA) 66, 

### 1o Fair Empi.Prac.Cas. (BNA) 379

... alleged in her complaint (l) that she ever applied or asked to be interviewed at the college placement office by the defendants, (2) that she ever applied for employment with the defendaots, or (3) that any of the defendants has refused to hire her because of her sex or for any other reason. She alleges only that she sought to use the services of the Sacramento State College Graduate Placement Center aod was 'deterred from making application for employment and seeking ao interview' with representatives of the defendants. Without deciding, it appears that plaintiff has not established a prima facie case, in that she has failed to allege that she actually applied for either ao interview or a job with any of the defendaots. In the event plaintiff is able to overcome the jurisdictional defects in this case aod decides to file a new action, the standards enunciated in McDonnell Douglas Corp. v. Green should be given careful consideration. Itis ordered that this actionbe, and the same is hereby, dismissed for lack of subject matterjurisdiction. ONMOTION TO RECONSIDER l8l On January 21, 1974, this court issued a memoranduro in this case aod ordered the action dismissed for lack of subject matter jurisdiction. Plaintiff timely requested a rehearing of the memorandum aod order pursuaot to Federal Rules ofCivil Procedure 59, the motion for a new trial. The equivalent of a rehearing under the federal rules is a motion for a new trial. Heikkila v. Barber, 164 F.Supp. 587 (Cal.1958). A district court has inherent powers to reconsider *33 its decisions. Lemelson v. Ampex Corporation, 372 F.Supp. 708 (Ill.l974); Wetzel v. Liberty Mutual Insurance Co., 372 F.Supp. 1146 (Pa.1974).
l 9 l l10l Originally, this case was brought as a class action claiming unlawful sex discrimination in the employment practices of 3 2 corporate defendants, and several 'Does', alleging violation ofTitle VII ofthe Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., aod seeking injunctive relief, compensatory damages, costs aod attorney's fees. As ao initial matter, it should be noted that there is no provision in the federal statutes or federal rules for the use of fictitious parties. The Ninth Circuit has consistently rejected the inclusion of 'Does' in the complaint aod we do the same here. Fifty Associates v. Prudential Insurance Co., 446 F.2d 1187 (9th Cir. 1970); Craig v. United States, 413 F.2d 854 (9th Cir. 1969); Molnar v. National Broadcasting Company, 231 F.2d 684 (9th Cir. 1956).
A briefreiteration ofthe salient facts inthis case will be helpfuL The Sacramento State College (now State University) Graduate Placement Center sent employer recruitment forms to firms which had shown an interest in employment interviews on the campus. These forms contained boxes which could be checked if a firm preferred to interview men or women graduates. Each of the defendants purportedly checked the box which indicated a preference for male graduates. Plaintiff, a female student at Sacramento State, was scheduled to graduate in June, 1970. She aod the class she represents allegedly sought to use the Sacramento State Graduate Placement Center during the Spring of 1970, but were supposedly 'deterred from making application for employment aod seeking ao

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3·13McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair
**Empi.Prac.Cas~(BNA)** 

### 66, 10 Fair Empi.Prac.Cas. (BNA)

**379~**.. interview' with representatives of the defendants. Additionally, two defendants allegedly circulated printed recruitment brochures on campus which referred exclusively to employment opportunities for men. Plaintiff claims that such employment practices are sexually discriminatory and are therefore violative ofthe Civil Rights Act of 1964,42U.S.C.§ 2000e et seq. Plaintiff initially filed charges with the Equal Employment Opportunity Commission (hereafter EEOC) on May 15, 1970. The instant action was filed onAugust 23, 1972, pursuant to 42 U.S.C. § 2000e-5(f), after right to sue letters were issued bythe EEOC to plaintiffon August 8, 1972. A number of motions were filed in this action by various defendants. In addition, several defendants joined in virtually each and every motion on file. This court, as noted, disposed of the entire case by granting a motion to dismiss due to lack of subject matter jurisdiction, and no disposition was made as to the validity of any other motion. Because the January 21, 1974, granting of defendants' motion to dismiss has raised serious and substantial questions relating to the rights of private parties to sue tmder the Civil Rights Act, and because the parties have cited to this court several applicable district court decisions which were rendered subsequent to January 21, 1974, Shaffield v. Northrop Worldwide Aircraft Services, Inc., 373 F.Supp. 937 (M.D.Ala., 1974); Roney v. Amax Lead Co., Civil Cause No. 74-24 (E.D.Mo., May 14, 1974); Smith v. United Press International, No. 74 Civ. 555 (S.D.N.Y. June 17, 1974); Jones v. United Gas Improvement Corporation, 383 F.Supp. 420 (E.D.Pa.l974), this court is constrained to reconsider its grant of the motion to dismiss. In this endeavor, the court has been aided by briefs and opinions ofcounsel, and by a brief filed February 12, 1974, by counsel for the EEOC as amicus curiae. On rehearing and reconsideration, the court must conclude, as enunciated more fully below, that the requirements of subject matter jurisdiction are met in this case and that the motion to dismiss on that ground shouldhave been denied. *34 MOTION TO DISMISS- SUBJECT MATTERJURISDICTION Several defendants moved to dismiss for lack of subject matter jurisdiction on three separate bases: (1) that the administrative requirements of42 U.S.C. § 2000e-5(c) had not been met in that plaintiffhad not raised her claim with the California Fair Employment Practices Commission (hereafter FEPC), nor had the EEOC referred the claim to the FEPC; (2) that the August 8, 1972, right to sue letters had been invalidly issued because they had been issued by an EEOC district director rather than by the Commission itself and the Commission was without authority to make such a delegation; (3) that even if the Commission had the authority to delegate, the delegation in this case was invalid.
In the memorandum and order of January 21, 1974, this court rejected defendants' first basis in support of their motion to dismiss, and the court reaffirms that conclusion. Title 42 U.S.C. § 2000e-5(c) requires an aggrieved party, before filing a charge with

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-14McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) -7
**-Fa-irEm_p_I.-Pr-ac.Ca~·BNA)** 66, 10 Fair Empi.Prac';;.C::cas=-'.-:::(B:;:;NA-;-;):-;;3-::;;79,...-.-- fue EEOC, to complain flrst to whatever state or local agency is auihorized 'to grant or seek relief from such (unlawful employment) practice or to institute criminal proceedings wiih respect ihereto.' Unless that requirement has been complied wiih, neither the EEOC nor this court has jurisdiction to entertain the charge. Crosslin v. Mountain States Telephone and Telegraph Co., 422 F.2d 1028 (9th Cir. 1970). The California FEPC has authority to investigate and remedy discriminatory employment practices in California. However, on May 15, 1970, when plaintiff flied her charge with ihe EEOC, the FEPC did not have authority to investigate and remedy acts of discrimination based upon sex. It was not until November, 1970, that sex discrimination became an unfair employment practice under § 1419(f) ofthe California Labor Code. Calif.Stats.l970, c. 1508, p. 2994 #3. Therefore, the Civil Rights Act of 1964 did not require plaintiff to complain to the FEPC before turning to the EEOC. Donohue v. Shoe Corporation of America, 337 F.Supp. 1357 (Cal.1972). Neither was it incumbent upon the EEOC itselfto refer the case to the FEPC once ihe latter agency acquired auihority over sex discrimination cases in November, 1970. The court recognizes that Congress, in enacting the Civil Rights Act of 1964, intended to give each state which establishes the proper administrative machinery a reasonable opportunity to deal with alleged employment discrimination questions ansmg m that state before federal involvement through the EEOC. Equal Employment Opportunity Commission v. Union Baolc, 408 F.2d 867 (9th Cir. 1969). However, research has netted no authority which supports fue view that the employment discrimination charge ofwhich the EEOC acquired competentjurisdiction at the time the charge was flied, must be referred to a state agency which subsequently acquires authority to deal with such charges. Indeed, in the court's view, it would be counterproductive for the EEOC to come to grips with a discrimination charge for a substantial period of time, only to be required midstream to refer the matter to a state agency which acquires authority or comes into being subsequent to fue filing of the charge. Secondly, this court, in the January 21, 1974, memorandum and order, rejected defendants' second contention that the EEOC did not have the authority to delegate to district directors the power to issue right-to-sue letters. This court here reaffirms ihat conclusion. Title 42 U.S.C. § 2000e-5(f)(l) provides that fue EEOC will issue a right-to-sue letter to any claimant upon the expiration of 180 days, if ihe EEOC has not flied charges or reached a conciliation agreement withinfuat time. This court is in agreement with Judge Schnacke who held in Stone v. E.D.S. Federal Corporation, 351 F.Supp. 340 (Cal.1972), that the issuance ofa right to sue notice was 'no more than a formality' not involving the exercise of discretion and personal judgment, and that 'it would be *35 foolish to hold that (the Commission) cannot delegate these clerical tasks to subordinates.' As noted in Krug v. Lincoln National Life Insurance Co., 245 F.2d 848, 853 (5th Cir. 1957): 'the delegation of duties of a public office, the duties of which are so manifold and voluminous that they could not be actually and personally performed by the ·vi'"'"tl.co'··.·Ne:<:r © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15
HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-15McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair


### Empi:Prac·~.Co:-a-s.'-:-(B"'Nc-;A,-)""37""9... person holding the office and charged with the performance ofits duties' is appropriate where the duties are merely ministerial.
In the January 21, 1974, memorandum and order, this court found defendants' third basis in support oftheir motion to dismiss to be meritorious. The decision that the delegation to issue right to sue letters was an improper one was based on a violation by the EEOC ofa portion ofthe Administrative Procedure Act, specifically the Freedom of Information Act, 5 U.S.C. 

### § 552 (hereafter the FIA). The FIA requires that each agency shall malce available to the public various types of information, including: 'administrative staff manuals and instructions to staff that affect members of the public.' 5 U.S.C. § 552(a)(2)(C). This court found that the EEOC failed to comply with this mandate of the FIA since the directive to delegate was contained in an EEOC manual which was labeled 'ADMINISTRATIVELY RESTRICTED.' Section 678 EEOC Manual 1 (October 15, 1969). In fact, there is no real dispute that the EEOC failed to comply with the provisions of FIA when it published the administratively restricted manual on October 15, 1969. The EEOC subsequently removed the 'administratively restricted' designation from its manual on May 21, 1973, and delegated again the power to issue rightto sue letters onAugust 15,1973. This court determined on January 21, 1974, that plaintiff had the burden of proof to show that the court had acquiredjurisdiction and that the valid issuance of a right to sue letter was a segment of the jurisdictional

··--·-· 

### ··--- issue. Because plaintiff failed to carry that burden in that she failed to show that the delegation directive had been validly issued, the court concluded that subject matter jurisdiction was lacking and that the action must be dismissed. Ill! Upon reconsideration, however, this court must conclude that to dismiss plaintiffs action here due to the error ofthe EEOC would be to penalize private party plaintiffs for the mistakes of an administrative govermnental agency. While the EEOC was in error for not complying with the FIA, the plaintiff has followed all the appropriate administrative channels in accordance with 42 U.S.C. § 2000e et seq. To penalize plaintiff for the mistake ofthe EEOC would be a hollow triumph of form over substance. Procedural niceties should not be utilized to impede a claimant in quest ofa hearing onthe merits ofa case. Burns v. Thiokol Chemical Corporation, 483 F.2d 300, 305 (5th Cir. 1973).

l12l Additionally, to dismiss plaintiffs claim for her failure to spot a technical defect would serve neither the purposes ofthe Civil Rights Act of 1964, nor the Freedom of Information Act Six years ago in another employment discrimination case, this court noted the salutary qualities of the Civil Rights Act of 1964 and the necessity for a liberal procedural approach so that plaintiffs need not be required to 'dot every 'i' and cross every 't' on their way to the courthouse.' Antonopulos v. Aerojet-General Corporation, 295 F.Supp. 1390 (Cal.1968). Inthe instant case, plaintiff in fact has followed all the correct procedural steps and her only failure has been not to recognize that the EEOC failed to properly delegate the power to issue right We:cti.ofiNexr © 20'15 Thomson Reuters. No claim to original U.S. GovernmentWorks. 16
HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3·16McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7-F-air-Eilipi.Prac.Cas. (BNA) 66, 10 Fair Empi.P-ra-'c."'C-as-'.c::(B'"NA"")-:3::::79""".-

.. **~-~** to sue letters due to non-adherence with the FlA. As noted earlier, the issuance ofa right to sue letter is a mere formality. Stone v. E.D.S. Federal Corporation, 351 F.Supp. 340, 343 (Ca1.1972). The action or inaction of the EEOC cannot affect a plaintiffs substantive rights under the Civil Rights Act of 1964. *36 Beverly v. Lone Star Lead Construction Corporation, 437 F.2d 1136, 1142 (5th Cir. 1971). As for the purpose of the Freedom of Information Act, it was passed into law to protect the public from unwarranted governmental secrecy. Getman
v. National Labor Relations Board, 146 U.S.App.D.C. 209, 450 F.2d 670 (1971). It would be a perversion ofthe FIA for it to be used now to punish a member ofthe public for the secrecy ofa governmental agency. Certainly the burden ofproofin a Rule 12(b) motion to dismiss for lack of subject matter jurisdiction is on the plaintiff, the party asserting jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 S.Ct. 951 (1942). Further, it is established that in 42 U.S.C. 

### § 2000e actions, in order to show that the court has acquired jurisdiction, plaintiffmust show, inter alia, that a right to sue letter has been issued. Stebbins v. Continental Insurance Companies, 143 U.S.App.D.C. 121, 442 F.2d 843 (1971). To go beyond this point, however, and require this plaintiff to prove that the right to sue letters she received had been validly issued by the EEOC (e.g. that the delegation to issue the letters had been validly made pursuant to the FIA) would impose too onerous a burden. After an aggrieved person such as plaintiff in this case has filed a charge and obtained her right to sue letter from the EEOC, she has done all that is expected of her prior to bringing suit. She has carried every burden which Title VII requires her to carry prior to suing in the district court. Shaffield v. Northrop Worldwide Aircraft Services, Inc., 373 F.Supp. 937 (M.D.Ala.1974). Upon thorough reconsideration, therefore, this court must conclude that subject matter jurisdiction is proper in this case and the motion to dismiss for lack of subject matter jurisdiction must be denied. This conclusion does not dispose of the matter for various defendants have made numerous other motions which, because of the prior disposition, were not treated in the January 21, 1974, memorandum and order. Since the inception of this action, this court has ordered the dismissal of 10 of the named defendants due to voluntary compliance and settlement: Prudential Insurance; Boise Cascade; Western Electric; The Travelers; Cmmecticut General; Reliance Insurance; Chubb & Son; Jewel Home Shopping; John Hancock; and General Adjustment. Of the remaining 22 defendants, 11 have chosen to make pre-trial motions in lieu of answer. This court has previously considered the motions challenging its subject matter jurisdiction. Now it will consider the remammg motions made by various defendants. CONSIDERATION MOTIONS OF OiliER
(1) Motion to dismiss- failure to state a claim. Defendants General Mills, Union Oil, St. Paul Fire and Marine, Phillips Petroleum, Minnesota Life and Liberty Mutual have all
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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-17McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas. (·"'s"'Nc;-A'"'l 3"'7'"'9-

... -------------- moved to dismiss for failme to state a claim upon which reliefcan be granted pmsuant to F.RC.P. 12(b)(6). The essence of this motion is that plaintiffhas failed to allege in her complaint that she actually applied for employment with defendants and was rejected. In fact, the complaint in this action only alleges that plaintiff 'sought to use the services of the Sacramento State College Placement Center' and that she and the class she represents 'were deterred from making application for employment and seeldng an interview' with defendants, because oftheir allegedly discriminatory practices. Although not cited, defendants apparently rely on the recent Supreme Court case of McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). In that case, the Supreme Court stated: 'The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he *37 belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.' 93 S.Ct. at 1824. The Supreme Court, however, was careful to point out in a footnote to the above-cited passage, that the facts and incidents of the prima facie case mayvary: 'The facts necessarily will vary in Title VII cases, and the specification above (referring to the bmden of proof specification enumerated above) ofthe prima facie proof required from the complainant in this case is not necessarily applicable in everyrespect to differing factual situations.' 93 S.Ct. at 1824. The Supreme Comt seemedto be saying that the typical employment discrimination case would encompass the situation where the plaintiff actually applied for and was rejected for a job, due to unlawful discrimination. However, the specifications ofemployment discrimination cases can and do vary as illustrated by Hailes v. UnitedAir Lines, 464 F.2d 1006, 1009 (5th Cir. 1972). In that case, the plaintiff, a male, charged sex discrimination in the hiring of stewardesses and flight attendants. Plaintiff had not even applied for ajob but the court held that a complaint of sex discrimination need not allege that plaintiffactually applied for and was rejected for ajob, but that it is sufficient to allege that the practices ofthe defendant employer were so discriminatory as to inculcate a reasonable belief on plaintiffs part that even applying for thejob was futile. [13l Similarly, in the instant case, it is sufficient for plaintiff to allege in her complaint that she was deterred from making application and seeldng an interview with defendants because of their employment practices. Where the defendants had indicated an express preference to interview and hire 'males' it can reasonably by assumed that plaintiff would believe application for thejobs would be a futile gestme. On this basis, it is concluded that the complaint adequately

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-18McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 'i"Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas. (BNA) 379

... 

### --------

states a claim sufficient to withstand a challenge u11der F.R.C.P. 12(b)(6).
(2) Motion to dismiss- failure to join an indispensable party. Defendants Ralston-Purina and St. Paul Fire and Marine move to dismiss pursuant to F.R.C.P. 12(b)(7) in that indispensable parties- Sacramento State and the 'Does'- have not been joined in accordance with F.R.C.P. 19(a). Defendants Phillips Petroleum and Liberty Mutual make the same motion, but only with regard to Sacramento State. Since this court has already disposed of the question of 'Does', the motions to dismiss all relate to failure to join Sacramento State as a party. F.R.C.P. 12(b)(7) permits a motion to dismiss when there is absent a party without whom complete relief cam1ot be granted or whose interest in the dispute is such that to proceed in his absence might prejudice him or the parties already before the court. 5 Wright & Miller, Federal Practice and Procedure, § 1359, p. 628. F.R.C.P. 19(a) reads as follows: '(a) Persons to be Joined if Feasible. A person who is subject to service of process and whosejoinder will not deprive the court ofjurisdiction over the subject matter ofthe action shall bejoined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any ofthe persons already parties subject to a substantial risk of incurring double, multiple, or otherwise *38 inconsistent obligations by reason of his claimed interest

. . .. ' Since Sacramento State claims no interest relating to the subject of this action, the question becomes whether complete relief can be accorded in the absence of Sacramento State as a party. Compulsory joinder is an exception to the general practice of giving plaintiffthe right to decide who shall be parties to a lawsuit. Ford Motor Credit Co. v. Beard, 45 F.R.D. 523 (S.C.1968). Although courts must take cognizance of the traditional prerogative given to plaintiffs, the prerogative will have to be compromised when significant countervailing considerations mal<e the joinder of a party desirable, within the court's discretion under F.R.C.P. 19. 7 Wright & Miller, Federal Practice and Procedure, § 1602 p. 17. The Supreme Court noted four interests which are relevant to questions ofjoinder under F.R.C.P. 19 inthe case ofProvident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968): 'First, the plaintiffhas an interest in having a fonun

. . .. Second, the defendant may properly wish to avoid multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares with another

. . . Third, there is the interest ofthe outsider whom it would have been desirable to join

. . .. Fourth, there remains the interest of the courts and the public m complete, consistent, and efficient settlement of controversies.' 39 U.S. at 109-111, 88 S.Ct.

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3·19McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7F"'Oir EmpL

## p;ac

**Cas~(BNA)** 66,-·i"a-Fair Emp LPrac.Cas:(BNA) 379

... at 739. 1 141 Applying the principles of Provident Tradesmens, it becomes apparent that Sacramento State is a party which should be joined pursuant to F.R.C.P. 19(a). Joinder of Sacramento State would in no way deprive plaintiff of a forum or deprive this court of subject matter jurisdiction over the action. Defendants may properly wish to join Sacramento State as a party defendant to avoid inconsistent relief or sole responsibility; 42 U.S.C. § 2000e-2 proscribes not only unlawful employment practices of employers, but also by employment agencies. The Sacramento State Graduate Placement Center was the agency of Sacramento State which allegedly set up the employment interviews with defendants and prepared the forms which 'male/female' preferences. It is certainly within the interest of Sacramento State, as a public institution, and within the interest of the public in general, to join Sacramento State as a party so that complete, consistent, and efficient settlement of the controversy can be achieved. As noted in the case of Haas v. Jefferson National Banl,, 442 F.2d 394 (5th Cir. 1971), a party is considered indispensable when it is more than a key witness, but is an active participant in the alleged cause ofaction.

Since it is feasible to join Sacramento State as a party, the court may do so pursuant to F.R.C.P. 19(a), and need not consider dismissal ofthe action due to failure to join an indispensable party. 5 Wright & Miller, Federal Practice and Procedure, § 1359, p. 628. (3) Motion to dismiss- failure to state a claim on which relief can be granted in a class action. [151 St. Paul Fire and Marine moves to dismiss for failure to state a claim on which relief can be granted in a class action. F.RC.P. 23 enumerates the requirements which must be met before a suit may be pursued as a class action. Compliance with F.R.C.P. 23, however, is not properly tested by a motion to dismiss for failure to state a claim. Gillibeau v. City of Richmond, 417 F.2d 426, 432 (9th Cir. 1969). Instead, the district court, pursuant to F.RC.P. 23(c)(l) 'as soon as practicable after the commencement of an action brought as a class action

. . . shall determine by order whether it is to be so maintained.'

[1GJ Although either plaintiff or defendants may move for a determination of appropriateness of a class action pursuant to F.R.C.P. 23(c)(l), *39 Cook County Teachers Union v. Byrd, 456 F.2d 882 (7th Cir. 1972), cert. denied, 409 U.S. 848, 93 S.Ct 56, 34 L.Ed.2d 90, the court has an independent obligation to decide the issue and need not wait for the parties to so move. Franlcel, 'Some Preliminary Observations Concerning Civil Rule 23', 43 F.R.C. 39 (1967); Stebbins v. Nationwide Mutual Insurance Co., 469 F.2d 268 (4th Cir. 1972), cert. denied, 410 U.S. 939, 93 S.Ct. 1403, 35 L.Ed.2d 606.

F.R.C.P. 23(a) creates four prerequisites to the maintenance ofa class action: 'One or more members ofa class may sue or be sued as representative parties onbehalfof all only if (1) the class is so numerous that joinder of all members is impracticable, (2)

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-20McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas. (BNA) 379

... there are questions oflaw or fact commonto the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protectthe interests ofthe class.'
In addition to satisfying all the elements set out in Rule 23(a), the case must fall within one of the three categories of class actions described inRule 23(b): 'An action may be maintained as a class action ifthe prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution ofseparate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications
..., or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive
...; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory reliefwithrespect to the class as a whole; or (3) the court finds that the questions oflaw or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods (of) adjudication

l171Itis, however, inappropriate for the court to make a Rule 23( c)(1) determination at this time because the parties simply have not adequately enumerated the applicability or inapplicability ofthe prerequisites set out in Rule 23( a) and (b). Plaintiffhas the burden of proof of showing that the provisions of Rule 23(a) and (b) are satisfied. Bel Air Markets v. Foremost Dairies, Inc., 55 F.R.D. 538 (CaL1972). Therefore, the parties are directed, as set out in the order hereafter, to cite to this court points and authorities on the appropriateness of a class action suit in this case, preparatory to a Rule 23(c )(1) ruling by this court. The parties are directed to pay special attention to the following issues and questions:
(a) Whether the class is so numerous that joinder of all members would be impracticable. Although plaintiff need not showthe exact number ofpotential members of the class, she does bear the burden of showing impracticability. Cash v. Swifton Land Corp., 434 F.2d 569, 571 (6th Cir. 1970). (b) Whether there exist common questions oflaw or fact to the class. This court is not unmindful of authority which supports the proposition that a class action is typically appropriate to redress a grievance grounded in civil rights. Attention should be directed, however, to the identification of the aggrieved class (i.e. who are the members of the class?). (c) Whether plaintiffs claims are typical of the claims ofthe class. Attention should be directed to the question whether the claims of the class members must meet the jurisdiction requirements of 42 U.S.C. § 2000e et seq. To this end, the following opinions should be discussed: Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Bowe v. Colgate Palmolive Co., 416 F.2d 711 (7th Cir. 1969); Hecht v. Cooperative for American Relief, 351 F.Supp. 305 (N.YJ972), and Mather v. Western Air Lines, 59 F.R.D. 535

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-21McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas. (BNA) 379

... (Cal.1973). *40 (d) Whether plaintiff will fairly and adequately represent the class' interest. Case law should be cited on how this representation is affected, ifat all, by the ten settlements which have been reached in this case. (e) Which one ofthe three grounds stated in Rule 23(b) would be appropriate/inappropriate to support a class action in this case? (f) Presuming a class action is appropriate, how would notice be most appropriately given to members of the class, and how should costs ofnotice be borne? ( 4) Motion to strike. l18l Defendants Phillips Petroleum, Liberty Mutual, Libby-McNeill, St. Paul Fire and Marine, New York Life Insurance, Grove Valve and Regulator, and Chicago Bridge and Iron, have moved to strike paragraphs 13(b), 13(c), and 13(d) from the complaint as irrelevant, immaterial, and impertinent, pursuant to F.R.C.P. 12(£).
Paragraph 13 of the complaint alleges that the named defendants have discriminated against plaintiffand the class she represents by engaging inthe following practices: '(b) Failing to adequately inform women applying for positions through the services ofthe Graduate Placement Center during the Spring Semester 1970 of employment opportunities or openings in traditionally male positions. (c) Failing to hire women for traditionally male positions. (d) Failing to adopt an affirmative recruitment program which would overcome the continued effect of discrimination practiced by defendants, and each of them, against women m recruitment, interviewing, and hiring.' The language of Title 42 U.S.C. § 2000e-5(g) is clear in delineating the power of courts to effectively remedy and terminate discriminatory employment practices: 'If the court fmds that the respondent had intentionally engaged in or is intentionally engaging in an 1.mlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable reliefas the court deems appropriate.' The Ninth Circuit has held that a court may enjoin and may award damages, and can afford 'affirmative relief where appropriate under 42 U.S.C. § 2000e et seq. Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002, 1006 (9th Cir. 1972). The district courts, therefore, have broad equitable powers to remedy unlawful employment practices under § 2000e. Furthermore, because the motion to strike under F.R.C.P. 12(£) is such a drastic device, courts view it with disfavor and grant the motion infrequently. Harrington & Co. v. International Longshoremen's Association, 356 F.Supp. 1079 (Fla.1973); Teacher's Insurance v. Northridge Corp., 55 F.R.D. 1 (Wis.1972);



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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-22McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empi.Pra._c:..,.C_a_s."'(s""Nc:-A""') 3"'79"""

.. -. 21 F.R.D. 110 (N.Y.1957). Defendants have not shown that the above-cited allegations are so devoid of relevancy, materiality or pertinence so as not to raise any possible cause of action under 42 U.S.C. § 2000e et seq. In any case, the appropriateness of plaintiffs allegations and contentions in paragraph 13(b), (c), and (d) are better left for adjudication on the merits, than disposition on a motion to strike. 5 Wright & Miller, Federal Practice and Procedure § 1382, pp. 815-816. (5) Motion to dismiss- no charging allegations. Defendants Grove Valve and Regulator, Minnesota National Life, and Chicago Bridge and Iron, all move to dismiss due to failure to state a claim upon which reliefcan be granted pursuant to F.R.C.P. 12(b)(6). The gravamen of this motion is that although plaintiff has included these three defendants in the caption to the complaint, there are 

### *41 no charging allegations in the body ofthe complaint. Indeed, other than the caption, none ofthese defendants are identified in the complaint. While the complaint specifically sets out the state ofincorporation, place ofbusiness, and date of interview at Sacramento State for each ofthe other 29 defendant corporations, the complaint fails to set out this information as to the three defendants-movants. 1 191As succinctly stated byF.R.C.P. 8(a), the pleading need only set out (1) a short and plain statement of the grounds for jurisdiction, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment and relief. Technical forms of pleading are not required under the federal rules, and the only real function of the federal pleadings is to give notice to the other party of the claim or defense. Owens Generator Co. v. H. J. Heinz Co., 23 F.R.D. 121 (Cal.1958). Itwould appear to this court that even without the specific charging allegations, the three defendants-movants herein would be placed on adequate notice ofthe claim asserted against them. The only information which the complaint lacks as to these three defendants-movants is their place ofincorporation, their place ofbusiness, and the date of interviews at Sacramento State during the Spring of 1970. All this information should be within the lmowledge ofdefendants-movants.

1 201Nevertheless, the complaint as to these three defendants-movants is technically defective within the requirements of F.R.C.P. 8(a) and such defect may be challenged by a motion to dismiss under F.R.C.P. 12(b)(6). Such a motion to dismiss is generally not on the merits, however, and the courts will typically give plaintiff leave to file an amended complaint. Sidebotham v. Robison, 216 F.2d 816 (9th Cir. 1954); Hughes v. Johnson, 305 F.2d 67 (9th Cir. 1962). This generous procedure is in accord with the federal policy ofdeciding cases on the basis ofthe substantive rights involved rather than on technicalities and that plaintiffs should be given every opportunity to cure a formal defect inpleading. Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962).

ORDER Itis therefore ordered, that:
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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-23McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair

### Empi."'Pr:::ca-'-c."'c-as-.'-;;(B"'N"'A"')'""3~79;;-.- .. -- (1) On rehearing and reconsideration, defendants' motion to dismiss for lack of subject matter jurisdiction is denied, and statements contained within this court's January 21, 1974, memorandum and order inconsistent with this memorandum and order are hereby vacated; (2) Defendants' motion to dismiss for failure to state a claim upon which relief can be granted is denied; (3) Defendants' motion to dismiss for failure tojoin Sacramento State as an indispensable party is denied; the court, however, orders Sacramento State joined as a party pursuant to F.R.C.P. 19(a), and plaintiff is given 30 days from the date ofthis memorandum and order to file an amended complaint joining Sacramento State as a party defendant; ( 4) Defendants' motion to dismiss for failure to state a claim upon which relief may be granted in a class action is denied; in order that this court may make an appropriate determination in accordance with F.R.C.P. 23(c)(1), however, plaintiffis directed to file
Footnotes points and authorities addressing the question of class action as outlined in this memorandum within 30 days from the date of this order, any and all defendants may respond within 15 days following the filing of plaintiffs brief; plaintiff shall have 15 days thereafter to close; (5) Defendants' motionto strike is denied; (6) Defendants' motion to dismiss due to lack of charging allegations is granted: the cause is dismissed as to defendants Grove Valve and Regulator, Minnesota National Life, and Chicago Bridge and Iron, without prejudice to plaintiff to file an amended complaint within 30 days from the date of this order, not inconsistent with the memorandumherein.

All Citations 387 F.Supp. 24, 7 Fair Empl.Prac.Cas. (BNA) 66, 10 Fair Empl.Prac.Cas. (BNA) 379, 7 Empl. Prac. Dec. P 9100, 9 Empl. Prac. Dec. P 9868, 19 Fed.R.Serv.2d 795

Plaintiff also relied on 42 U.S.C.§ 1981 as an additional basis for jurisdiction in her complaint, but she abandoned that ground at the hearing on this matter held on February 26, 1973. Reporter's Transcript of February 26, 1973 at24.

2 Abshire v. Chicago and Eastern Illinois Railroad Co., 352 F.Supp. 601 (N.D.Ill.1972) does not support a contrary view, in that the court there apparently assumed that relief from alleged sex discrimination was available under lllinois law at the time the charges were filed with the EEOC, without realizing that such was not the case. Only on a careful reading ofthe facts in that case does it come to light that the charges there were filed with the EEOC on August 11, 1971, while the statute authorizing the Illinois FEPC to grant relief for sex discrimination did not become effective until August 27, 1971, As the court did not address the timing issue in Abshire, that case does not shed any light on the case before this Court. 3 42 U.S.C.A. § 2000e-5(f)(1) provides in pertinent part: 'If a charge filed with the Commission pursuant to subsection (b) ofthis section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charges
or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section

... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission

... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-24McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 

### 7Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Empl. Prac.Cas. (BNA) 379

.. charge (A) by the person claiming to be aggrieved

..
4 ld.

5 29 C.F.R. § 1601.25a (1972) provides in pertinent part: 'At any time after the expiration of sixty (60) days (now 180 days) from the date ofthe filing of a charge, or upon dismissal of the charges at any stage of the proceedings, or upon the expiration of the time for filing objections to dismissal by the Field Director pursuant to§ 1601.19, the charging party may demand in writing that a notice issue pursuant to§ 1601.25, and the Commission shall promptly issue such notice, with copies to all parties.' 6 The directive provides as follows: 'Issuance of notices of right-to-sue heretofore handled by headquarters, i.e., concurrent notice with notification of decision in no cause cases, and demands for notification under 1601.25(b), is hereby delegated to the field offices.' Section 678 EEOC Manual1 (Oct. 15, 1969).

7 The pertinent directive is attached to the reply memorandum of defendant Connecticut General Life Insurance Company which was filed on March 26, 1973.
8 42 U.S.C.A. § 2000e-12(a) provides: 'The Commission shall have authority from time to time to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this subchapter. Regulations issued under this section shall be in conformity with the standards and limitations ofthe Administrative Procedure Act.'

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-25'J/2812012 AC 150/5J00-13A Appendix7 TahleA7-3.Runwaydesign standardsmatrix, AlB-llSmall Aircraft f Aircrq(tAppra«clt Caiegory (AAG and AirplrmeDesi!m Grou; (ADG): AlB"' 11 SmallAil·craft
ITEM DIM' VIS!BlLHY MINIMUMS Visual NotLoYverthan Not Lmver than Lo\ve1· tl1nn 1mile 3/4 mfte 3/4 mile RUNWAY DESIGN Rllm:vay Lcngt11 A Rej<r!opartlgraphs302.cmd11M Runway \Vjd111 B 75ft 75ft 15 I\ 100 I\ Shoulder Width 10ft lO.ft 1orr 10 £\ BlastPad Width 95 I\ 95ft 95£\ 120ft BlastPad Length 150ft 150ft 150ft 150 l\ Crosswind Component 13 knots 13 kliots 13 knots 13 knots RUNWAY PROTECTION Rum.vay Safety Area (RSA) 

### r:Joo ft Length beyond dcpm·ture

**end~.** Hi R 300 it 300 it 600ft Length prior to t11reshold p 300ft 300ft 300ft 600ft Width 

### c !50ft 150fr !50ft 300ft Runway ObjectFreeArea(ROFA) Length beyond runway -end R 300 f! 300ft 300 f! 600ft Length prior to threshold p 30o n 100ft 300ft 600ft \'lidth Q 500ft 500 it 500 ll &00 .ll Runway Obstucie Free Zone (ROFZ) Length I

**R~fer**to earagrap;h308 Width 

### I Refer ro paragraph 308 PrecL,ion ObstacleFreeZone (POFZ) Length I NIA 'I NIA I NIA I 200ft Width NIA NIA NIA 800ft 'Approa-chRunway' Protection Zone (RPZ) Length L 1,000ft 1,000ft 1,700 ft 2,500 ft Inner Width u 250ft 250ft 1,000 ft 1,000 ft Outer Width v 450 .ft 450ft 1,510 I\ 1,750 ft Acres 8.035 8.035 48.978 79.000 Departure

**Rum~vay** Protect[on Zone (RPZ) Length L 1OOOft 1.000 I\ 1,000 ft 1,000 it Inner Width u 250.ft 250ft 500 I\ 500ft Ot1terWidth 

### v 450ft 450 ll 700 !1 700 j\ Acres 8.035 8.035 13.770 13.770 Rtrl\'WAY.SEPARATION Rtm11YIJ' centerlini!: to: Parallel runway centerline H Refer toparagraph 316 Holding Position 

### us ft 125ft 125ft _I 175 ft Parallel tnxiwn.y/taxi'lane centerli11e2 '4 D 240ft 240ft 240 I\ 'I 300 1l Aircraft parking aJ'ea G 250ft 250 I\ 250ft I 400ft Helicoptertouchdovvn pad Refer/0AC150/5390-2 Note:



### '

**Vah:~es**in the table nre rounded to 1l1e nearest foot. 1foot= 0.305 meters.

271 

# I

I I I 

# I

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 4-1 

# l I I I