UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

FAADOCKETNO. 16-15-07 

WILLIAM ALFRED HICKS, JR. 

a/k/a BILLY HICKS, 

Complainant 

RECEIVED 

SEP 1 1 2015 

PART 16 DOCKETS 

v. 

CITY OF MOUNT AIRY, NORTH 

CAROLINA; and THE COUNTY OF 

SURRY, NORTH CAROLINA; through 

the MOUNT AIRY/SURRY COUNTY 

AIRPORT AUTHORITY, 

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COMPLAINANT'S RESPONSE 

TO RESPONDENTS' MOTION 

TO STRIKE AND FOR 

APPROPRIATE RELIEF 

Respondent. 

Submitted By: 

Randolph M. 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 

Pursuant to 14 CFR, §16.26(b)(3) and §16.26(c)(3), William Alfred Hicks, Jr., by and 

through counsel, hereby answers the Respondents' Motion to Strike and for Appropriate Relief, 

submitted by Respondent Mount Airy/Surry County Airport Authority and adopted by the City 

of Mount Airy. 

CONCISE STATEMENT OF FACTS 

Complainant, William Alfred Hicks, Jr. ("Billy" or "complainant"), a past 

member of the Mount Airy/Surry County Airport Authority and past tenant at the Airport itself, 

filed a formal complaint pursuant to Title 14 CFR, Part 16, against the Mount Airy/Surry County 
Airport Authority, the governing body of the Mount Airy/Surry County Airport ("KMWI("), as 

designated by the City of Mount Airy and the County of Surry, both located in North Carolina, 

who are the Sponsors ofthe Airport. The Mount Airy/Surry County Airport Authority (herein 

"Airport Authority") are appointed by the Sponsors and make the policy and procedure needed to 

operate the facility. 

Billy's Complaint arises from actions taken by the Mount Airy/Surry County Airport 

Authority ("Airport Authority) that Billy believes violate the Sponsor Assurances assumed by 

the Airport Authority when accepting funding grants. The Federal Aviation Administration 

("FAA") has jurisdiction to determine compliance with obligations and assurances pertaining to 

the Airport Improvement Program through Title 49 U.S.C. §47101, et. seq., and Airport Sponsor 

Assurances through 49 U.S.C. §47107, et seq. Respondents have filed a Motion to Strike arising 

from Complainants Response to Respondents' Motion to Dismiss, or in the Alternative for 

Summary Judgment. 

ARGUMENT 

In Billy's Response to Respondent's Motion to Dismiss, or in the Alternative for 

Sunnnary Judgment, Complainant presented an example of C-III nmway design standards, with 

Exhibit 8 (excerpt from AC 150/5300-BA,). The Airport Authority filed a Motion to Strike and 

for Appropriate Relief, which was adopted by Surry County. In the Motion to Strike, 

Respondents argue the C-III design standards provided in Complainant's Response to 

Respondents' Motion to Dismiss, or in the Alternative for Summary Judgment is not relevant to 

the Complaint and in violation of 14 CFR, Part 16, 16.13(e). 

Respondent does correctly point out a mistake made by complainant's counsel in 

describing the aircraft KMWK is intended to serve as C-III instead of B-II. However, this error 

2 
as to the designation of the aircraft does not make the correct designation or design standards 

which are applicable to KMWK irrelevant or immaterial to the Formal Complaint and 

Respondent's Motion to Dismiss or In the Alternative for Summary Judgment. Complainant 

intended to focus the FAA and the Surry County community at large on the issue of whether the 

airport expansion plan complies with FAA restricted areas and funding requirements in relation 

to timing of funding and timing of construction, and whether the Mount Airy-Surry County 

Airport Authority has been transparent with the FAA and the governing bodies in disclosing the 

actual land that will be needed to complete this runway expansion. 

Procedurally, the FAA rules, including Part 16 rules, "find their genesis in the Federal 

Rules of Civil Procedure," and as such federal cases can be persuasive. Lo-Yu-Sun v. Port of 

Seattle, FAA Docket No. 16-06-13, p. 4 (Order) (Sept. 12, 2007) (Attached as Ex. 1). Motions to 

strike pursuant to Federal Rules of Civil 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 of a pleading is a drastic remedy and because it is often 

sought by the movant simply as a dilatory tactic." Builders Mut. 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 motion to strilce to be granted, the 

movant should show the portion of the pleading is "devoid of relevancy, materiality or 

pertinence" such that it should be excluded, instead of leaving the material for adjudication on 

the merits. McDonald v. General Mills, Inc., 387 F.Supp. 24, 41 (B.D. Ca. 1974) (citing 5 Wright 

& Miller, Federal Practice and Procedure §1382, pp. 815-816).(Ex. 3). 

3 
I. The Property Required for the Runway Expansion is at Issue in the Formal 

Complaint and Relevant to the Respondents' Motion to Dismiss, or in the 

Alternative for Summary Judgment. 

Billy's Complaint alleges violations of the Airport Sponsor Assurance 4, Good Title, 

which requires the Airport Authority to confirm the Authority, a public agency, or the Federal 

Government holds good title to the landing area of the airport, or that good title will be acquired. 

Airport Sponsor Assurance 4(a). Complainant has alleged the Airport does not own good title to 

all the land required for the expansion project, including the runway extension. (Camp., p. 33). 

The Complaint stated Billy was informed and believed the Airport Authority did not have good 

title to all real property directly affected by the airport extension when the expansion began 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 would be obtained, as required 

by Sponsor Assurance 4. (Camp., p. 34). 

Part of determining whether good title has or can be obtained by the Authority is 

identifYing the minimum design standards which KMWK is required to satisfY, including 

requirements for runway protection. Complainant relies upon Advisory Circular for Airport 

Design, AC 150/5300-13A which defines runway protection areas by category of aircraft. 

Although Complainant mistakenly referenced Category C-III to conclude real property fell 

within the Runway Safety Area (RSA), an analysis of the conect category, B-II, still discloses 

real property with obstacles which are within the Runway Object Free Area (ROFA) for B-II 

category aircraft for which no steps have been taken to secure the property on the East side of the 

KMWK 3 6-18 runway. As such, complainant believes the Respondents are not in compliance 

with Sponsor Assurance 4, Good Title, because of the real property with homes falls within the 

ROFA. 

4 
Respondents provided in the Motion to Dismiss, or in the Alternative for Summary 

Judgment ("Motion to Dismiss") information about the land surrounding the airport, including 

the information about the nmway expansion creating a 5,500 X 100 foot runway. (Resp. Mot. To 

Dismiss, p. 21-22). In Respondents' Motion to Dismiss, in Ex. A-2 to the Affidavit of Jonathan 

Semones, is a map created July 9, 2015. This map shows property lots including houses directly 

adjacent to the runway, within 200 to 400 feet on the East side of Runway 36 -18. Encroaclunent 

into the ROFA on the East side of runway 36-18 by private property m11st be assessed in 

determining whether Respondents are in violation of Sponsor Assurance 4, Good Title. 

Runway design and runway extensions must evaluate runway protection, including 

Runway Safety Areas (RSA), Runway Object Free Areas (ROF A), Runway Obstacle Free Zones 

(RPZ), and R1mway Protection Zones (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 Runway Expansion. 

T.n ble A 7-3. Ran~·my de.sign standards matrix, .AlB~ ll Small .A.ircro:ft 

Aircrdft Approa.clt Catego1)'/-4AC) .anrl 

AirrY.ltm.e .Desi"'u GronP {.Al)G): 

AlB - ll Smtill. Aircraft 

Visual iNotLm,t•ertlb:..t:n)NO'tLowert'han) Lowe:rtfuan 

RU01WAYD£SIG::-.1 

R1.ID-\<.ray Length A 

Run\<m:f Width B 

Shau!de:r- "V?idfu 

Blas;tt Pad. Width 

Blas.t Pad ~ofu 

Crossv.rind Compa-ne:ntr 

R1.1]'{v;tAY PROTECTIO~ 

Ruffi"my S:afet:f }\rea (RSA) 

Length beyond departure ernl ~.1o 

Length pries to threshold 

\Vidth 

RUU\"'l::!Y Object Free Area (ROF A) 

Length beyond :runway ·end 

Length prier to threshold 

\Vidfu 

R1l~X'ill<ly Obstacle Free Zone (R.OFZ) 

Length 

Width 

Precision Obstacle Free Zone (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 3t4 m.ile 

75 

l<lJ 

95 " 9 

~ l50 

B 

300ft 300ft 600ft 

300ft 3·00fit 600ft 

150ft 150ft 300ft 

Rife1· toparag.rapli 308 

Rqter to 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). 

5 
Applying this matrix to the KMWK Runway 36-18 design, the ROFAminimum 

requirement for Visibility minimums is 500 feet off the centerline, 250 feet each side of the 

center line for visibility minimum of visual to not lower than% mile. KMWK has two GPS 

approaches which limit approaches by category to not less than 1 mile of visibility. Therefore, in 

order to satisfy the Runway design criteria for AC 150/5300 -13A, a ROFA of250 feet off the 

centerline of Runway 36-18 is required. Applying this width the full length of Runway 36-18, 

approximately mid-runway it appears on the eastern side of the runway real property with homes 

encroach the ROFA. To complainant's lmowledge, not steps have been taken to secure the real 

estate encroaching on ROF A on the East side of Runway 36-18. 

This information is highly relevant to how much property the Airport Authority must 

have good title to, or be able to assure it will be acquired. In the Formal Complaint and in 

Complainant's response to Respondents' Motion to dismiss or summary judgment, the intent was 

to make the FAA aware that structures, homes, lie within or immediately adjacent the Controlled 

Areas of the planned B-II runway expansion. The designations are in place to ensure the safety 

of the airport, and as such are highly relevant. 

Though it appears KMWK will meet the requirements of the Runway Safety Areas forBII aircraft designation, as provided by Respondent in the Motion to Strike, there still appears to 

be encroachment of private property within the Runway Object Free Area (ROFA) even with BII standards. 

In the KMWK Approach Plates for Runway 36 and Runway 18, the best visibility is one 

(1) mile. This visibility limitation then determines the required Runway Protection 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 Free Area would 

6 
extend 250 feet from the centerline of Runway 18 and Runway 36. By placing a scale on the map 

presented as Ex. A-2 to the Affidavit of Jonathan Semones, provided with Respondents' Motion 

to Dismiss, or in the Alternative Summary Judgment, there is visible property within 200 feet on 

the East side of Runway 36. The Complainant is unaware of any provisions for acquiring the 

property discussed by the Respondents, in order to comply with the standards provided in 1309 

andAC 150/5300-BA, Appendix 7, Table A7-3, p 271. 

Though Complainant may have erred about the designation ofKMWK aircraft as a C-III, 

the proper designation of B-II and corresponding design criteria standards are relevant in 

detennining whether the Airport Authority has good title to the real estate affected by and 

required for the expansion, to determine that homes and other structures which abut the runway 

area lie within the controlled areas surrounding the runway. The design standards of the KMWK 

runway are relevant to the allegations in the Formal Complaint arguing the Airport Authority's 

lack oftransparency about the title to property required by the runway expansion (Comp. pp. 33-

36), and thus Respondents' Motion to Strike should be denied. 

II. Submitting Information Relevant to Issues Raised in the Complaint and 

Respondents' Motions, and is not a violation of 14 CFR §16.13. 

Respondents argue in the Motion to Strike the aircraft designation and Exhibit 8 

contained in the Response to Respondents' Motion to Dismiss is in violation of 14 CFR §16.13 

because it is irrelevant to KMWK, as KMWK plans were for a B-II aircraft. However, aircraft 

designation and the corresponding restricted areas surrounding the airport is relevant, and 14 

CFR §16.26(b)(3) allows the Complainant to provide documents relied upon in the answer to a 

motion. 

The Code of Federal Regulations Part 16, §16.13(e) sets forth that every document filed 

should be signed, and that signature serves as certification that the signer believes the document 

7 
is consistent with Part 16, warranted by existing law or that a good faith argument exists for the 

extension or modification of existing law, and not 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's Response to the Respondents' Motion to Dismiss, or in the Alternative 

Summary Judgment, are immaterial and a violation of §16.3. However, aircraft designation is 

relevant to how much property the Airport Authority must have good title to or be able to 

provide assurance that it can be acquired pursuant to Sponsor Assurance 4. When a motion to 

dismiss a Part 16 formal complaint has been filed with the FAA, "complainant may file an 

answer to the motion to dismiss within 10 days of the date the motion is served on the 

complainant, or within any other period set by the Director. The answer shall be accompanied by 

a concise statement of reasons for opposing dismissal, and may be accompanied by affidavits 

and other documentary evidence in support of that contention." 14 CFR §16.26(b)(3). 

Both Billy's Complaint and Respondents' Motion to Dismiss provide maps showing the 

runway and the sunOlmding property, with a scale for the distance between the runway and the 

property closest to the runway. ( (Comp., in Ex. 26H-l, and Respondents' Motion to Dismiss, in 

Ex. A-2 to the Affidavit of Jonathan Semones). To submit the requirements for the controlled 

zones around the runway is directly related to the property maps in the Formal Complaint and 

Respondents' Motion to Dismiss, is relevant to an issue in dispute (Sponsor Assurance 4), is 

consistent with Part 16.23(b)(3), warranted by existing law (or a good faith argument exists for 

the extension or modification of existing law), and is not interposed for any improper purpose 

pursuant to 14 CFR Part 16, §l6.3(e). 

8 
Here, Complainant filed Exhibit 8, the excerpt from FAA Airport Design Advisory 

Circular on Runway Design with his Answer to Respondents' Motion to Dismiss as a document 

on which he relied upon in good faith, pursuant to 14 CFR §16.26(b)(3). Though the proper 

Exhibit should have been the B-ll table and not the C-Ill table, Respondents have now provided 

the correct designation, the B-II designation, and as such do not need 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' Motion to Dismiss, or in the 

Alternative for Summary Judgment, should be included in the record such that the FAA will be 

able to decide on the merits of the case. The information and documents Complainant has 

provided in reference to restricted areas around the runway is to allow the FAA to determine the 

issue on the merits of the case, and specifically, whether the Airport Authority holds good title to 

or can provide assurance that good title can be acquired to all the real property the expansion will 

require, such that the Airport Authority is meeting the obligations of Sponsor Assurance 4, Good 

Title. As all information about relevant property lots affected by the expansion are material and 

relevant, presented pursuant to 14 CFR Part 16, and as such, the Respondents' Motion to Strike 

should be denied. 

CONCLUSION 

For the foregoing reasons, Complainant respectfully requests the FAA DENY the 

Respondents' Motion to Strike and for Appropriate Relief, such that Respondents' Motion to 

Dismiss or in the Alternative Motion for Summary Judgment can be determined based upon the 

record. 

9 
This, the gth day of September, 2015. 

10 

Randolph M. James, N.C. 

Attorney for Complain t 

P.O. Box 20069 

Winston-Salem, NC 120 

Phone: (336) 724-7707 

Facsimile: (336) 724-9722 

Email: rn1james@rmiameslaw.com 
CERTIFICATE OF SERVICE 

I, Randolph M. James, certifY on September 8, 2015, I filed and served this 

Complainant's Response to Respondents' Motion to Strike and for Appropriate Relief (together 

with all the attachments and exhibits hereto), by placing the original and three copies addressed 

to the FAA in a prepaid, first-class envelope in the custody of the United States mail as defined 

by Title 14 CPR Part 16, §16.3, and by mailing a copy to counsel of record by depositing the 

foregoing in U.S. mail, addressed to: 

FAA Part 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 Mount Airy/Surry County 

Airport Authority 

11 

EdwinM. Woltz 

119 Rawley Avenue 

Mount Airy, NC 27030 

Attorney for the County of Surry, NC 

Hugh B. Campbell, III 

235 E. Independence Blvd. 

PO Box 1846 

Mount Airy, NC 27030 

Attorney for the City of Mount 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 Docket No. 16-06-13 

v. ) 

) 

00 

rn ill rn n w rn 

Port of Seattle } 

) 

Respondent ) SEP 1 2 2007 

OlWER FAA AIRPORTS 

PART 16 POCKETS 

On September 14,2006, Complainant (or «petitioner") Lo-Yu-Sun, through. counsel, :filed 

a Complaint with the Federal Aviation Administration (FAA) under 14 C.F .R. Part 16 

against the Port of Seattle (Respondent) alleging the Port failed to carry out the objectives 

of the Airport Concession Disadvantaged Business Enterprise (ACDBE) program under 

49 C.F.R. § 23.1, and discrimination in violation of49 C.P.R.§ 26.7. 

On October 6, 2006, the FAA issued a Notice advising the parties that the Complaint had 

been docketed and that the Respondent Port of Seattle was required to file an answer 

within 20 days. The FAA nor,ed Host International Inc. (Host), was not the Federal 

airport sponsor, proprietor, or operator, and was not a proper party to a Part 16 case, and 

that the Complainant had not submitted any supporting documentation with his 

Complaint 

On October 20,2006, Respondent filed a Designation of Persons to Receive Service for 

the Port of Seattle and requested a 60·day extension of time in which to file its Answer. 

On October 26, 2006, the FAA granted Respondent's request for an extension of time to 

file the Answer and advised that the Answer would now be due on December 26, 2006. 

On December 18, 2006, Complainant filed documents in support ofhis September 14, 

2006 Complaint. 

On December 22, 2006, Complainant filed a Motion to Amend Complaint to Provide 

Additional Information Pursuant to 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 Complaint a.>d a Motion for Extension ofTime to file its Answer. 

2 

On January 17, 2007, the FAA issued an order granting Complainant's Motion to Amend 

Complaint to Provide Additional Information, and providing Respondent Port of Seattle 

with an additional 30 days to file its Answer. 

On February 15, 2007, Respondent filed its Answer, Motion to Dismiss, and a 

Memorandum ofPoints and Authorities and Affidavit in Support of its Answer and 

Motion to Dismiss. 

On February 15, 2007, Complainant filed a Second Motion to Amend Complaint, an 

Amended Complaint, and four declarations. 

On February 23, 2007, Respondent filed an 0Fposition to Complainant's Second Motion 

to Amend its Complaint. 

On March 2, 2007, Complainant flied a Reply in Support of Second Motion to Amend 

Complaint and a Declaration. 

On March 7, 2007, Complainant filed his Opposition to Respondent's Motion to Dismiss, 

On March 8, 2007, Respondent filed a Joint Motion to (1) Strike Complainant's 

Unauthorized Reply to Respondent's Opposition to Complainant's Second Motion to 

Amend tbe Complaint; (2) Strike Complainant's Untimely Opposition to the Port's 

Motion to Dismiss; and (3) Bar Complainant from Submitting an Untimely Reply to 

Respondent's Answer to the Complaint. 

Backgrotmd 

The FAA has before it the following motions: 

e Respondent's Motion to Dismiss tbe First Amended Complaint 

e Complainant's Second Motion to Amend Complaint 

• Respondent's Opposition to Complainant's Second Motion to Amend tbe 

Complaint 

o Complainant's Reply in Support of Second Motion to Amend Complaint and a 

Declaration , 

• Complainant's Opposition to Respondent's Motion to Dismiss First Amended 

Complaint 

• Respondent's Motion to Strike Complainant's Unauthorized Reply to 

Respondent's Opposition to Complainant's Second Motion to Amend Complaint 

" Respond,ent's Motion to Strike Complainant's Untimely Opposition to the Port's 

Motion to Dismiss First Amended Complaint, and 

• Respondent's Motion to Bar Complainant from Submitting an Untimely Reply to 

Respondent's Answer to the First Amended Complaint. 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1·2 
3 

Complainant's Second Motion to Amend Complaint' 

In this Motion, Complainant requests the FAA to replace the name of the Complainant as 

an individual, "Lo-Yu-Sun," with the Washington corporation, "Sun's Inc." Complainant 

now advises that "Sun's Inc.," rather than "Lo-Yu-Snn," is certified as an Airport 

Concessionaire Disadvantaged Business Enterprise (ACDBE). 

To support his request, Complainant states that the two airport concessions discussed in 

the Complaint - China First Express and Manchu Wok- are/were operated by Sun's Inc., 

the certified ACDBE. Complainant advises that on January 5, 2006, he transferred his 40 

percent mvnership interest in Sun's Inc. to a Mr. Yu (who is now the 100 percent 

shareholder), but that he serves as vice president and general manager of Sun's Inc. 

Complainant states that the Complaint was brought under his name as an individual 

rather than Sun's Inc. because his attorney who filed his Complaint was not aware of the 

change of ownership structure, or that Complainant no longer had any own.ership interest. 

Complainant indicates that the ownership issue was not brought to his attention- and 

hence his attorney's attention -until on or about February 7, 2007, when a review of 

Sun's Inc.'s ownership structure by the State of Washington's Office of Minority and 

Women's Business Enterprises (OMWBE) brought out the fact that the company's 

ownership had changed. Complainant advises that the Complaint was brought under his 

name as an individual because his position and duties as vice president and general 

manager had not changed after January 5, 2006, and he did not realize that a more 

specific reference to him as the minority owner or part owner was needed. 

Complainant's counsel in a Declaration states that he had not previously been aware that 

Complainant only owned a minority 40 percent interest in Sun's Inc., and that it was not 

until January 31, 2007 that he learned from Mr. Sun that Sun was not the sole owner of 

Sun's Inc. and that Sun had transferred his 40 percent interest to Mr. Yu. 

Complainant urges the FAA to permit him to file a second amended complaint in the 

name of Sun's Inc., arguing that: (1) the Director has discretion to accept the amended 

complaint under 14 C.F.R. 16.ll(a); there would be no prejudice to Respondent; (2) case 

law, legislative history, and similar rules of practice support acceptance of an amended 

1 The FAA already proVided Complainant with one opportunity to amend his Complaint. On 

O!:tober 6, 2006, the FAA. placed Complainant on notice that his Complaint lacked any 

supporting documentation, that Part 16 required that pleadings be accompanied by supporting 

documentation upon which the parties rely, and that the Complainant has the burden of proof to 

establish his Complaint Over three months later, on December 18, 2006, Complainant filed 

documents in support ofits September 14, 2006 Complaint. On December 22, 2006, 

Complainant filed a Motion to Amend his Complaint However, pursuant to the FAA's October 

26, 2006!etter, the Respondent's Answer was due on December 26, 2006. In its January 17, 

2007, Order, the FAA advised Complainant that the supporting documentation should have been 

filed with his September 14, 2006 Complaint and that his failure to do so has delayed the 

proceeding. Despite Complainant's error, the FAA granted Complainant's first request to amend 

the complaint as necessary or appropriate for a fair and complete hearing of the matter. 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-3 
4 

-~-~__,..ompla:i:nt-ID-fue-inter.est-BfJaim~s;+<jcSi:nce 

FA A mJes, inclndiru;J'mt,7::1':6~, fin~d~il:l;o' ,e1"'.--------

genesis in the Federal Rules of Civi1 Procedure (FRCP), the latter should be highly 

pexsuasiv e, the FRCP have a liberal policy toward the amendment of pleadings; under 

Rule 15 of the FRCP, parties tnay amend thcirpleadings once as a matter of course at any 

time before a responsive pleading is served; ( 4) Respondent has suffered no prejudice, 

Complainant has not acted in bad faith and its Complaint is not ftttile; (5) United States 

Department of Transportation rules (14 C.F .R 302.5) provide that an !!pplication may be 

amended prior to the filing of answers thereto; and since Complainant filed hls amended 

complaint prio:r to Respondent filing its Answer, Respondent bas not suffered any 

prejudice. 

In reply, Respondent argues: {1) the Second Motion to Amend Complaint fuils to meet 

appropriate legal standards including those discussed in Foman v. Davis, 371 U.S. 178 

(1962); (2) the Motion was filed after Respondent filed its Answer; (3) Complainant is 

asking to amend his Complaint more 1han five months after filing his initial Complaint, 

and that Complain ant has had ample time to make this latest change; ( 4) the fact that 

Complainant's cotmsel was unaware ofthe defects in the Complaint is immaterial; the 

Complainant is ultimately responsible for the prosecution of the proceeding; in both 

instances, Complainant has filed both ofhis motions to amend the Complaint at about the 

same time Respondent's Answer was due; (5) pennitting Complainant to amend his 

Complaint yet again would be extremely prejudicial to Respondent because (a) it would 

be an undue burden to require it, for a second time, to revise its Answer and Motion to 

Dismiss to respond to new facts and allegations (particularly since Respondent based its 

Motion to Dismiss in part on the fuct that Mr, Lo·Yu-Sun is not a certifiedACDBE), and 

(b) Respondent's legal position bas been exposed to Complainant since Complainant has 

already seen Respondent's response to the initial and amended ccmplaints; (6) 

Complainant intentionally lied in a fraudulent manner in his Complaint and has acted in 

bad faith; (7) Complainant's conduct and representations in this proceeding are 

inconsistent with the Part 23 and Part 26 requirements that the socially and economically 

disadvantaged individual maintain ownership and control over the business; Mr. Sun 

brought the Complaint in his individual capacity as the owner and operator of China First 

Express and Manchu Wok; Respondent has already submitted to FAA extensive 

correspondence concerning matters raised in the Complaint all of which have come from 

or been directed to Mr. Sun; Respondent has no relationship with the actual owner of 

Sun's Inc., .Mr. Yu. The latter has not been involved in any recent discussions or 

communications with Respondent regarding China First Express or Manchu Wok, and 

has had no role in this proceeding. 

Decision 

The FAA hereby grants Complainant's Second Motion to Amend Complaint. A1; 

Complainant asserts, the proper identification of the parties to this proceeding will 

eliminate any waste of time and resources in having to correct the confusion later on, and 

will facilitate the efficiency of the proceeding. 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-4 
5 

-~- -------rruwever;the'FM~~ot.ioo.t4-Artlend.:wifb relnc:tance, m part because Part 16 

is an accelerated administrative process, intended to expedite substantially the handing 

and disposition ohtirport relat-ed complaints. 61 Fvd Reg 53,998 (Qct. 16. 1996). 

Moreover, in a January 17, 2007letter, the FAA admonished Complainant that his failure 

to support his September 14, 2006 Complaint with supporting documentation, as Part 16 

expressly requires, had already delayed this proceeding. And as Respondent pornts out, 

each time that Complainant has requested to amend his Complaint, it has been served on 

or about the day that Respondent's Answer was due. The Complainant, who has now 

filed two motions to amend complaint, is therefore placed on notice that even under 

FRC:P 15; "repeated failure to cure deficiencies by amendments previously allowed" 

serves as a ground to deny leave to amend. Fomsn, 371 U.S. at 182. 

Accordingly, no further motions to amend the complaint will be entertained in this 

proceeding. 

Analysis 

We look to Federal law when deciding the issue of complaint amendment underPart 16 

be<:ause that rule contains no specific amendment provision. Federal Law sets a very 

liberal standard for parties to amend complamts. In fact, outright refusal to grant the 

leave without any justifying reason may constitutes an abuse of discretion and is 

inconsistent with the spirit of the Federal Rules. F()man, 371 U.S. at 182. Rule 15 of the 

FRCP provides that a party may amend its complaint once "as a matter of course" before 

a responsive pleading is served. Subsequently, the "party may amend the party's pleading 

only by leave of court or by written consent of the adverse party and leave shall be freely 

given when justice so requires." Fed. R. Civ. P .. 1S(a). 

The Supreme Court has interpreted "freely given when justice so requires" to mean that 

"[i]n the absence of sny apparent or declared reason- such as undue delay, bad faith or 

dilatory motive on the part of the movant, repeated failure to cure deficiencies by 

amendments previously allowed, undue prejudice to the opposing party by virtue of 

allowance of the amendment, futility of the amendment, etc.- the leave sought should, as 

the rules require, be freely given." Foman, :371 U.S. at 182. See also DCD Programs, 

Ltd. v. Leighton, 833 F.2d 1S3, 185 {91

hCir. 1987) (Rule JS'spolicyoffavoring 

amendments to pleadings should be applied with "extreme liberality."). "A liberal, proamendment ethos dominates the intent and judicial construction of Rule 15(a)." 

3 Moore's Federal Practice~ 15.14[1) (3d ed. 2003). Two additional factors are 

sometimes used to determine whether justice requires granting leave to amend: judicial 

economy and whether a party previously amended a pleading. 3 Moore's Feder;U 

Practice'\]15.15[11 (3d ed. 2003). 

The intent of the rule is "to assist the disposition of litigation on the merits of the case 

rather than have pleadings become ends in themselves." Sll!hmit Office Park. Inc. v. U.S. 

Steel Collb 639 F.Zd 1278, 1284 (5th Cir. 1981). In exercising its discretion, "a court 

must be guided by the underlying purpose of Rule 15 -to facilitate decision on the merits 

rather than on the pleadings or technicalities." DCD Programs, 833 F .2d at 186. Courts 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT t-5 
I. 6 

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

'1!15.14[3] (3d ed. 2003). Also, a motion to make an amendment is to be liberally granted 

where from the~-acts or circ-mnstanc@s, ihe plaintiff may be able to state a 

claim. McCartin v. Norton, 674 F.2d 1317, 1321 (9th Cir.1982). 

We now tum to the factors used to determine the propriety of a motion for leave to 

amend. Undue prejudice, considered 'by the courts to be key factor, may result from 

delay by the movant in requesting leave to amend, but the passage of time alone is 

usually not enough to deny leave to amend. See DCD Programs, 833 F.2d at 186)( delay 

by itself is insufficient to justifY denial ofleave to amend). Jn most cases, courts will 

deny leave to amend only if the non-moving party is in fact prejudiced by tbe delay. 

Prejudice is especially likely to exist if the amendment involves new theories of recovery 

or would require additional discovery. 1f delay is unduly exceasive, however, courts may 

deny leave to amend on that factor alone. Moore's Federal Prac~ '1!15.15[2) 

{Bender/Lexis on-line edition accessed May 24, 2007). 

Complainant argues that Respondent would suffer no prejudice. Respondent disagrees, 

arguing it has been prejudiced because it would be burdensome to require it to revise its 

pleadings a second time to respond to new facts and allegations (particularly since 

Respondent based its Motion to Dismiss in part on the fact that Mr. Lo-Yu-Sun is not a 

certified ACDBE); their legal position has been exposed to Complainant (i&, 

Complainant has attempted to amend its pleading after a responsive pleading has been · 

served); and Complainant waited too long to file. Under the case law, undue prejudice is 

likely to exist if the amendment involves new theories of recovery or would require 

additional discovery, or if the delay is unduly excessive. 

It is unlikely that Respondent will be required to conduct additional discovery. Also, as a 

result oflris mistake, Complainant will not be seeking new theories ofrecovery. 

Complainant's allegations have not substantially changed and there should be no need for 

"a great deal of additional discovery." Atcl:tinson v. District of Columbia. 73 F.3d 418, 

426 (D.C. Cir. 1996). Moreover, Respondent should not have been surprised by the 

proposed amendment since the subleases are between Respondent's lessee, Host, and 

China First Express and Manchu Wok and Sun's 1uc., not Lo-Yu-suu. Respondent's 

Februaty 15, 2007 Memorandum on Points and Authorities, p. 11. 

In addition, due to the fact that under the rules of Part 16, Complainant would have the 

right to file a new complaint under the name of"Sun's Inc" ifFAA were to deny 

Complainant's Second Motion to Amend and dismiss the complaint in its entirety without 

prejudice, any prejudice to Respondent is minimized. 

The Complainant's proposed amendment will not change the factual bases of his claims. 

The Complaint was written as ifLo-Yu-Sun was an ACDBE- the amendment merely 

substitutes the correct party, Sun's Inc. The proposed amendrrl.ent will not unduly 

increase discovery, delay the proceeding, or surprise Respondent. Youell v. FNU 

Russell, 2007 WL 709041 (D. N.M. 2007). 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1·6 
7 

---·--4H'fie""!"'e,-Ffive-m onths-®es-net-eenstitute undue-delay.,..especially since theJ:nll-1\IDS still in 

the pieadings stage. See Doe v. McMillan 566 F.2d 713,720 (D.C.Cir.1977) (upholding 

a denial ofleave to amend te add a new allega-tion and a new defendant more than thlee 

years after litigation began), cert. denied, 435 U$. 969 (1978); Jones v. Childers, 18 F.3d 

899, 909 ( 11 '" Cir. 1994)( court found undue delay when plaintiff motioned to add 

affirmative defenses four ye.ars after complaint filed); and DRR, L.L.C. v. Sears, i 71 

F.R.D. 162, 167-168 (D. Del. l997)(party's delay in moving to amend complaint two and 

one-half years after entry of summary judgment constituted unfair prejudice to opposing 

party). 

Bad faith is defined as "dishonesty of belief or purpose." Black's Law Dictionary (8th ed. 

2004). A "dilatory" motive is one that tends to cause delay. ld. The Respondents 

describe Mr. Sun's practices as "negligent and dilatory" and allege that he has 

"intentionally lied in a fraudulent manner." Port of Seattle's Opposition to 

Complainant's Second Motion to Amend Complaint (Feb. 23, 2007), p. 4. However, the 

record reveals only negligence on Mr. Sun's part. As Mr. Sun argues, it has been readily 

apparent that his claim concerns the entity certified as the ACDBE. Moreover, 

Respondent Port acknowledges that the subleases between Complainant and Host 

International, 1nc. were written as between "Sun's Inc." and H<>st, and not "Lo-Yu-Sun" 

end Host. So the Port was at least on notice that the ACDBE was "Sun's Inc." (or "Sun's 

Inc. dlb/a China First Restaurants'') and not "Lo·Yu-Srro." Respondent's February 15, 

2007 Memorandum on Points and Authorities, p. 11. 

Concerning repeated failure to cure deficiencies by amendments previously allowed, this 

is a factor occasionally used by the courts when considering denial of a motion for leave 

to amend. The case law indicates that a court's discretion over amendments is especially 

broad "where the court has already given a plaintiff one or more opportunities to amend 

his complaint." DCD Programs, 833 F.2d at 186, n. 3, citing Mir v. Fosburg, 646 F.2d 

342, 347 (9th Cir. 1980). Here, while Complainant has mo\led for a second opportunity to 

amend hls complaint, the FAA does not view this fact as enough to outweigh the benefit 

to this proceeding of having identification of the parties corrected early on during the 

pleadings stage. Also, if the FAA were to deny Complainant's Second Motion to 

Amend, under the rules of Part 16 and dismiss the complaint in its entirety without 

prejudice, Complainant would have the right to .file a new complaint under the name of 

"Sun's 1nc." Requiring Complainant to refile would further delay this proceeding and 

waste FAA's limited resources. 

Concerning futility, courts will generally not grant leave to amend where the amendment 

merely restates the same facts as the original complaint in different terms, reasserts a 

claim on which the court previously ruled, fails to state a legal theory, or could not 

withstand amotion to dismiss. Moore'sFederal Practice, '1!15.15[3) (Bender!Lexis online edition accessed May.24, 2007). The proper party to this proceeding is "Sun's me" 

rather than "Lo-Yu-Sun." It would not be futile to perlllit Complainant to amend its 

Complaint to correct its error in naming the proper party bringing the complaint. 

Complainant is not slinply restating the facts in different terms. Nor is he reasserting a 

previously ruled claim or failing to state a legal theory. See Bank v. Pitt, 928 F.2d 1108, 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-7 
fi . 

' 

8 

--------1:ti-2i1-1Jh-EiT=--19911(iliaintiff.slloul4-hav.Mprpoctunity to amend whep. m=or"'e'-'c""ar,_,e00

fu..,l""ly,__ _____ _ 

drafted complaint might state claim)( overruled in part on other grounds). 

Concerning judicial economy, courts generally consider how tb.e amendment would 

affect the use of judicial resources and the impact on the judicial system. Moore's 

federal Practice, '1!15.15[1} (Bender!Lexis on-line editionaccessedMay24, 2007)). If 

anything, granting Complainant's Second Motion to Amend Complaint will actually 

expedite these proceedings. As stated before, if the FAA were to deny Complainant's 

Motion and dismiss the complaint in its entirety, it would necessarily be without 

prejudice to refiling. Assuming Complainant wouldrefile, denying Complainant's 

Motion would only delay the disposition on the merits. In granting Complainant's 

Motion, the FAA finds no prejudice to the administration of Part 16. Moreover, the 

public has an interest in prompt resolution of disputes. 

ACCORDlNGJ~Y, it is ordered that: 

Complainant's Second Motion to Amend Complaint is granted. No further motions to 

ailJ.end the complaint will be entertained in this proceeding? 

Respondent's Motion to Strike Complainant's Unautholi:oed Reply to Respondent's 

Opposition to Complainant's Second Motion to Amend Complaint and Respondent's 

Motion to Strike Complainant's Untimely Opposition to the Port's Motion to Dismiss 

First Amended Complaint are granted.3 

Respondent's Motion to Dismiss the First Amended Complaint is denied as moot due to 

tb.e admission ofihe second =ended complaint in this proceeding. 

Respondent's Motion to Bar Complainant from Submitting an Untimely Reply to 

Respondent's Answer to the First Amended Complaint is denied as moot due to the 

admission of the second amended complaint in this proceeding. 

2 In paragraph 6.2 of the second amended complaint under "Prayer For Relief' Complainant requests 

damages for its rel!So!lllb!e expenses and losses. The FAA is not authorized to award monetary damages 

under Pan 16. Relief under Part 16 is lllnited to orde:rs of compli3llee pursuant to section 16.109(a). 3 Complainant's "reply" of March 2, 2007, in support of its second motion to amend the .complaint was an 

unauthorized pleading, Section 16.!9 permits a motiun and an answer to the motion. lt does not perxnit a 

reply. Complainant's March 7, 2007, opposition to Respondent's February 15,2007, Motion to Dismiss 

First Amended Complaint was lllltimely. Under section 16. !9(c) an answer to .a motion must be filed witbin 

10 d>ys. Even addlng an additional3 days under the mail rule under 16.17(c), Complainant's resp()llse to 

the motion to dismiss was untimely. Further, Complainant <lid not provide any eJ<:planation for the untimely 

filing and the record provides none. 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-8 
9 

Respefli!e'!lt may file :;m :;mswer to tlle second amended complaint, with a motion to 

dismiss if appropriate, mthin 30 days of the service date of this order. Thereafter 

Complainant may file a Reply and Respondent a Rebuttal pursuant to the time periods in 

14 C.F.R. § 16.23(e), (f). No other pleadings will be accepted from either party in this 

proceeding unless requested by the FAA. 

David L. BeJJilett 

Director, Office of Airport Safety 

and Standards 4 

SE.P 12: 2007 

4 The FAA's Office for Civil Rights has authority to adjudicate and Issue decisions in eases involving civil 

rights allegations filed under 14 CFR Part 16, such as this case .. On February 22,2002, the Director of the 

Office of Ai.Iport Safety and Standards delegated to the Deputy Assistant Administrator for Civil Rights the 

authority to prepare and issue director's determinations pursuant to 14 CFR Part 16 On Jannary 17, 2007, 

the Deputy .Assistant Administrator for Civil Righls issued the first order in this case granting the first 

motion to amend complaint. Since that time the position of the Deputy Assistant Adrn:in:istrator for Civil 

Rights has become vacant without an acting official. In the interim the Director, Office of Safety and 

Standards shaU act as the decision maker. 

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

CER1'IFJCA.l'E OF SERVICE 

I HEREBY CERTIFY that on September ( <Q , 2007, I caused to be placed :in the 

United States mail (first class, postage paid) or personally delivered a true copy of the 

foregoing document address to: 

Mr. Rodney L Umberger, Jr. 

Ms. Claire J.:Hur 

Williams, Kastner & Gibbs, PLLC 

601 Union Street, Suite 4100 

Seattle, WA 98101-2380 

Fax (206) 628-6611 

· Mr. Craig R. Watson 

General Counsel 

Port of Seattle 

P.O. Box 1209 

Seattle, WA 98111-1209 

Mr. Arthur P. Berg 

Mr. Daniel S. Reimer 

Kaplan, Kirsch & Rockwell LLP 

730 Fifth Avenue, Suite 900 

New York, NY 10019 

Fax ( 646) 514-5440 

FAA Part 16 Allport Proceedings Docket (AGC-61 0) 

Office of Civil Rights, ACR-4 

~b~~AS/irJ Shance Jefferson 

Airports and Environmental Law Division 

Office of the Chief Counsel 

10 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 1-10 
709 F.Supp.2d 432 

United States District Court, 

E.D. Virginia, 

Norfolk Division. 

BUILDERS MUTUAL INSURANCE 

COMPANY, Plaintiff and 

Counterclaim Defendant, 

v. 

DRAGASMANAGEMENT 

CORPORATION, Defendant, 

Counterclaim Plaintiff, Crossclaim 

Plaintiff, and Crossclaim Defendant, 

and 

Firemen's Insurance Company of 

Washington, D.C., Defendant, 

Crossclaim Defendant, and 

Crossclaim Plaintiff, 

and 

Dragas Management Corporation, 

Third-Party Plaintiff, 

v. 

Hanover Insurance Company and 

Citizens Insurance Company of 

America, Third-Party Defendants. 

Civil Action No. 2:09cv185. I March 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., held that: 

[ll Virginia law applied to interpretation of 

policies; 

l

2

l insured failed to state claim for breach of 

contract arising out of coverage denial; and 

l

3

l insured failed to state claim for bad faith. 

Motions to dismiss granted. 

West Headnotes (8) 

1

1

1 Federal Courts 

r,;=Conflict of Laws; Choice of Law 

In a diversity suit, district court must 

apply the choice of law rules of the 

forum state. 

1 Cases that cite this headnote 

[ZJ Insurance 

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

[4] 

PPlace of contracting or 

performance 

Virginia insurance law applies the 

law of the place where an insurance 

contract is written and delivered. 

1 Cases that cite this headnote 

Insurance 

"'"'Liability Insurance 

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 of insurer's denial 

of coverage thereunder. 

Cases that cite this headnote 

Insurance 

f?Place of contracting 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 Federal Civil 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 

[

61 Declaratory Judgment 

ccPGrounds of motion 

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 2·2 
the 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 umbrella policies 

governing such legal obligations, for 

costs of remediation plan. 

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 Law Firms 

*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 2-3 
Corrigan & Wellman, Richmond, VA, for 

Hanover Insurance Company and Citizens 

Insurance Company of America. 

MEMORANDUM OPINION 

REBECCA BEACH SMITH, District Judge. 

On April23, 2009, plaintiff Builders 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 of bad 

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. The Insurance Policies 

Dragas has purchased five insurance policies 

relevant to the present motions,' three of 

which are BMIC policies and two of which 

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 

of March 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 of February 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 2·4 
Among 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 of ihe "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 Factual History 

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 of containing 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 

proposed remediation plan for the insurers to 

review. (Id ~53; Dragas' Opp'n FIC's Mot. 

Dismiss Ex. 1. ). 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 2-5 
After 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 declaratory judgment that 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 of rights. (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. Applicable Law 

1

1

1 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 of the 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

41 Dragas 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 of Virginia 

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 2-6 
IV. BMIC's Motion 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 

declaratory judgment 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 in reverse. 

[SJ Under Rule 12(f) of the 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 of a 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 

and Procedure § 1382 (3d. ed. 2004). 

[

61 To 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 on the 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 

declaratory judgment 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 and II of the Counterclaim 

is DENIED. 

V. BMIC's and FIC's Motions to Dismiss 

BMIC has moved to dismiss Counts III and 

IV of Dragas' 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 of Review 

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 enough to raise a right to 

relief above the speculative level." I d. 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 2-7 
the 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 P apasan 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 of Contract 

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 of proving 

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 

this juncture. 

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. of Ill. 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 pay may 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 third party 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 2-8 
has 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 of no decision 

under Virginia law in which payments made 

voluntarily by an insured, in the absence of a 

lawsuit or regulatory action, were found to 

constitute "damages" within the meaning of 

the standard CGL policy language. 

1

7

1 Currently, Dragas has alleged no facts 

regarding the extent to which the 

remediation plan has been executed or why 

it was undertaken at the juncture that it was. 

Importantly, Dragas has failed to 

specifically allege any threats of lawsuits 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 of the 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 EXHIBIT2-9 
the 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, if it can 

do so. 

C. Count IV: Breach ofthe Implied 

Covenant of Good Faith and Fair Dealing 

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 of coverage 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 in refusing to 

defend where there is no coverage under 

the policy."). 

[SJ Although BMIC initially denied coverage, 

it later agreed, before any lawsuits were 

filed, to defend Dragas subject to a 

reservation of rights. ( 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 2-10 
bad faith, consistent with any amendment on 

Count III. 

VI. Conclusion 

For the foregoing reasons, BMIC's Motion 

to Strike Counts I and II of the Counterclaim 

is DENIED. BMIC's Motion to Dismiss 

Counts III and IV of the 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 

can be granted on the dismissed counts. 

The Clerk is DIRECTED to forward a copy 

of this 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 of whether 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 Drag as agrees that Virginia law applies to the FIC policies, which were written and delivered in Virginia. (Drag as' 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 2-11 
extensively 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 EXHIBIT 2-13 
McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 

7 Fair Empi.Prac.Cas. (BNA) 6(1o Fair Empi.Prac.Cas. (BNA) :3'79..~ 

387 F.Supp. 24 

United States District Court, E.D. 

California. 

Ellizabeth G. McDONALD, 

Individually and on behalf of all 

persons similarly situated, Plaintiff, 

v. 

GENERAL MILLS, INC., et al., 

Defendants. 

Civ. No. S-2553. I Jan. 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 of right 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) 

!

1

1 Civil Rights 

<FExistence of other 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 not required 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(±). 

1 Cases that cite this headnote 

1

2

1 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. Government VVorks. 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3·1 
McDonald 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 Civil Rights 

c=Right to 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 Civil Rights 

,.~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. Government Works. 2 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-2 
McDonald 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 of proof 

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 

l

8

l Federal Civil Procedure 

~PMotion and Affidavits 

[9] 

Equivalent of rehearing in trial court 

under the federal rules is a motion 

for a new trial. F ed.Rules Civ .Proc. 

rule 59, 28 U.S.C.A. 

1 Cases that cite this headnote 

Federal Civil Procedure 

""Identification of Parties; 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 of sex 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 Civil Rights 

~~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 3-3 
McDonald 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 Civil Rights 

[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 Civil Rights 

;;=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 in female student's civil rights 

action against the employers and, 

since the court could join the 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 ------·-·-·--·------··---- ·'·,,'\Assti,.:r\?·,1'[1~e_;.:J © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT3-4 
McDonald 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 Civil Procedure 

;;~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 Civil Procedure 

!Pin general; certification in 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 

Federal Civil 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, .. ~,,,',25"\i,:;::'r•.:.,;N~:~~r © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT3-5 
McDonald 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 Civil Procedure 

il=N ature and purpose 

Technical forms of pleading are not 

reqillred 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. 

Fed.Rules Civ.Proc. rule 8(a), 28 

U.S.C.A. 

Cases that cite this headnote 

[ZOJ Federal Civil Procedure 

;;~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 and Law 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 EXHIBIT3-6 
McDonald 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, 

New York Life Ins. Co., John Hancock Mut. 

Life Ins. Co., Connecticut Mut. Life Ins. 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 

MEMORANDUM AND ORDER 

MacBRIDE, Chief Judge. 

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, 

'\1\l,r:stl;;:\P/Ner~r © 2015 Thomson Reuters. No claim to original U.S. Government \tVorks. 7 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT3-7 
McDonald 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 if a 

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 of the 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 of motions 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) of the 

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 relief from 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 

not require plaintiff to complain to the FEPC 

V'/~:;t!.,3;',>"'/Ne;•X © 2015 Thomson Reuters. No daim to original U.S. Government Works. 8 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-8 
McDonald 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

2

1 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 competent jurisdiction 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 

subsequent to the filing of the 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 by the EEOC acting on behalf of 

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 

himself must 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 of America, supra, the opinion 

in Love v. Pullman, supra, cannot be read to 

require the EEOC to so file on behalf of the 

complainant before it can assume 

jurisdiction over the case. Accordingly, I 

find that the fact that neither the plaintiff nor 

the EEOC filed charges with the FEPC does 

not deprive the Cmrrt of jurisdiction in this 

matter. 

1

3

1 Our inquiry into the jurisdictional bases 

of this 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 

---------------- \'\I,R:::ti.0''/'/Ne?'X © 2015 Thomson Reuters. No claim to original U.S. Government VVorks. 9 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3·9 
McDonald 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 acquiring jurisdiction 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

51 On 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. Taking judicial 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 of its duties' is appropriate 

where the duties are merely ministerial. 

Having found that the EEOC has the 

authority to delegate the issuance of right 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 of notices of right-to-sue ... 

"'\'',i:::~:tl,;=n!',I'Nexl © 2015 Thomson Reuters. No daim to origina! U.S. Government VVorks. 10 

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

7 Fair Empl.Prac.Cas. (BNA) 66, 10 Fair Empi.Prac.Cas.""(B"'N"'A7

) "'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 (AP A).' 

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 of the public-

.... gen 

(B) statements of the general course and 

method by which its functions are channeled 

and determined, including the nature and 

requirements of all formal and infmmal 

procedures available; 

(C) rules of procedure, ... 

''' .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 

Federal Register; and 

(C) administrative staff manuals and 

instructions to staff that affect members of 

the public; 

unless the materials are promptly published 

and copies offered for 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. Government Works. 11 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-11 
McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 

7 Fair Empi.Prac.Cas. (BNA) (36, 10 Fair Empi.Prac.Cas. (BNA) 379 ... 

requirements of the 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 in that 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 staff that 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 in fact open to public 

inspection. If the directive does not comply 

with the requirements of the Freedom of 

Information Act- which is part of the 

AP A-it obviously does not conform to the 

stm1dards *32 and limitations of the AP A 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). Plaintiff has 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 of plaintiffs 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 of racial 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 

------· '\fli~sil.cccYNelJ © 2015 Thomson Reuters. l\lo claim to original U.S. Government Works. 12 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-12 
McDonald 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. 

It is ordered that this action be, and the same 

is hereby, dismissed for lack of subject 

matter jurisdiction. 

ON MOTION TO RECONSIDER 

l

8l 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 of Civil 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

9l l

10l 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 of Title VII of the 

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 brief reiteration of the salient facts in this 

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 3·13 
McDonald 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 of the Civil Rights Act of 

1964,42 U.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 on August 

23, 1972, pursuant to 42 U.S.C. § 

2000e-5(f), after right to sue letters were 

issued by the EEOC to plaintiff on 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 of counsel, 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 

should have been denied. 

*34 MOTION TO DISMISS- SUBJECT 

MATTER JURISDICTION 

Several defendants moved to dismiss for 

lack of subject matter jurisdiction on three 

separate bases: (1) that the administrative 

requirements of 42 U.S.C. § 2000e-5(c) had 

not been met in that plaintiff had 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 3-14 
McDonald 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) of the 

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 

itself to 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 of which 

the EEOC acquired competent jurisdiction 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 within fuat 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 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 *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 

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-15 
McDonald 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 of its 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 of their 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 of a portion of the 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 

right to sue letters on August 15,1973. 

This court determined on January 21, 1974, 

that plaintiff had the burden of proof to 

show that the court had acquired jurisdiction 

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 of the 

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 of the 

EEOC would be a hollow triumph of form 

over substance. Procedural niceties should 

not be utilized to impede a claimant in quest 

of a hearing on the merits of a case. Burns v. 

Thiokol Chemical Corporation, 483 F.2d 

300, 305 (5th Cir. 1973). 

l

12l Additionally, to dismiss plaintiffs claim 

for her failure to spot a technical defect 

would serve neither the purposes of the 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). In the 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. Government Works. 16 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3·16 
McDonald 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 of a 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 of the FIA for it to be 

used now to punish a member of the public 

for the secrecy of a governmental agency. 

Certainly the burden of proof in 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, 

plaintiff must 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 3-17 
McDonald 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 relief can be granted pmsuant to 

F.RC.P. 12(b)(6). The essence of this 

motion is that plaintiff has 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 of their 

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 may vary: 

'The facts necessarily will vary in Title VII 

cases, and the specification above (referring 

to the bmden of proof specification 

enumerated above) of the prima facie proof 

required from the complainant in this case is 

not necessarily applicable in every respect to 

differing factual situations.' 93 S. Ct. at 

1824. 

The Supreme Comt seemed to 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 

of employment discrimination cases can and 

do vary as illustrated by Hailes v. United Air 

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 a job but the court 

held that a complaint of sex discrimination 

need not allege that plaintiff actually applied 

for and was rejected for a job, but that it is 

sufficient to allege that the practices of the 

defendant employer were so discriminatory 

as to inculcate a reasonable belief on 

plaintiffs part that even applying for the job 

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 the jobs 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 3-18 
McDonald 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 whose joinder will not deprive the court 

of jurisdiction over the subject matter of the 

action shall be joined 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 of the 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 plaintiff the 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 of joinder under F.R.C.P. 19 in the 

case of Provident Tradesmens Bank & Trust 

Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 

19 L.Ed.2d 936 (1968): 

'First, the plaintiff has 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 of the 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 3·19 
McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 

7F"'Oir EmpL p;ac Cas~(BNA) 66,-·i"a-Fair Emp L Prac. 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 of action. 

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 of the 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.' 

[

1

GJ 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 of a class action: 

'One or more members of a class may sue or 

be sued as representative parties on behalf of 

all only if (1) the class is so numerous that 

joinder of all members is impracticable, (2) 

'Ne:otl·c-viNe~X © 2015 Thomson Reuters. No claim to original U.S. Government Works. 20 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-20 
McDonald 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 of law or fact common to 

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 protect the interests of the 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 in Rule 23(b ): 

'An action may be maintained as a class 

action if the prerequisites of subdivision (a) 

are satisfied, and in addition: (1) the 

prosecution of separate 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 relief with respect 

to the class as a whole; or (3) the court finds 

that the questions of law 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 

l

171 It is, 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 of the prerequisites set out in 

Rule 23( a) and (b). Plaintiff has 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 

show the exact number of potential 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 

of law 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 of the 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, 3 51 

F.Supp. 305 (N.YJ972), and Mather v. 

Western Air Lines, 59 F.R.D. 535 

~·/'Is:::tl..;:;'/'tNe_:-::r © 2015 Thomson Reuters. No claim to origina! U.S. Government VVorks. 21 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-21 
McDonald 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, if at all, by the ten 

settlements which have been reached in this 

case. 

(e) Which one of the 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 of notice be borne? 

( 4) Motion to strike. 

l

18l 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 plaintiff and the class she represents 

by engaging in the following practices: 

'(b) Failing to adequately inform women 

applying for positions through the services 

of the 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 relief as 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); 

. ··~-·---------·----··-----

'''tl2si,l.S'' ,-N~_:.:;r © 2015 Thomson Reuters. No claim to original U.S. Government \!Vorks. 22 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-22 
McDonald 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 relief can 

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 of the complaint. 

Indeed, other than the caption, none of these 

defendants are identified in the complaint. 

While the complaint specifically sets out the 

state of incorporation, place of business, and 

date of interview at Sacramento State for 

each of the other 29 defendant corporations, 

the complaint fails to set out this 

information as to the three 

defendants-movants. 

1

191 As succinctly stated by F.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). It would appear to this court 

that even without the specific charging 

allegations, the three defendants-movants 

herein would be placed on adequate notice 

of the claim asserted against them. The only 

information which the complaint lacks as to 

these three defendants-movants is their place 

of incorporation, their place of business, and 

the date of interviews at Sacramento State 

during the Spring of 1970. All this 

information should be within the lmowledge 

of defendants-movants. 

1

201 Nevertheless, 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 of deciding cases on 

the basis of the substantive rights involved 

rather than on technicalities and that 

plaintiffs should be given every opportunity 

to cure a formal defect in pleading. Bonanno 

v. Thomas, 309 F.2d 320 (9th Cir. 1962). 

ORDER 

It is therefore ordered, that: 

··>/'i?:c!l·o•'i'I'Ne:<X © 2015 Thomson Reuters. No claim to original U.S. Government Works. 23 

HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-23 
McDonald 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 

to join 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 of this 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, plaintiff is 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' motion to 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 

memorandum herein. 

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 at 24. 

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 

of the 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) 

of this 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 3-24 
McDonald v. General Mills, Inc., 387 F.Supp. 24 (1974) 

7 Fair Empi.Prac.Cas. (BNA) 66, 10 Fair Em pl. 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 of the 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 of the Administrative Procedure Act.' 

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

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HICKS ANSWER TO RESPONDENTS' MOTION TO STRIKE EXHIBIT 3-25 
'J/2812012 AC 150/5J00-13A 

Appendix7 

TahleA7-3. Runway design standards matrix, AlB-ll Small Aircraft 

f Aircrq(tAppra«clt Caiegory (AAG and 

AirplrmeDesi!m Grou; (ADG): 

AlB"' 11 Small Ail·craft 

ITEM DIM' VIS!BlLHY MINIMUMS 

Visual Not LoYver than Not Lmver than Lo\ve1· tl1nn 

1 mile 3/4 mfte 3/4 mile 

RUNWAY DESIGN 

Rllm:vay Lcngt11 A Rej<r !opartlgraphs 302.cmd 11M 

Runway \Vjd111 B 75ft 75ft 15 I\ 100 I\ 

Shoulder Width 10ft lO.ft 1 o rr 10 £\ 

Blast Pad Width 95 I\ 95ft 95£\ 120ft 

Blast Pad 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 150 fr !50ft 300ft 

Runway Object Free Area (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;h 3 08 

Width I Refer ro paragraph 308 

PrecL,ion Obstacle Free Zone (POFZ) 

Length I NIA 'I NIA I NIA I 200ft 

Width NIA NIA NIA 800ft 

'Approa-ch Runway' Protection Zone (RPZ) 

Length L 1,000 ft 1,000 ft 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 1 OOOft 1.000 I\ 1,000 ft 1,000 it 

Inner Width u 250.ft 250ft 500 I\ 500ft 

Ot1ter Width 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 to paragraph 316 

Holding Position us ft 125ft 125ft _I 175 ft 

Parallel tnxiwn.y/taxi'lane centerli11e 2

'

4 D 240ft 240ft 240 I\ 'I 300 1l 

Aircraft parking aJ'ea G 250ft 250 I\ 250ft I 400ft 

Helicopter touchdovvn pad Refer /0 AC 150/5390-2 

Note: 

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

271 

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

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