UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

BONNIE TURPPA,

Plaintiff,

Case Number 09-12974-BC

v. Honorable Thomas L. Ludington

COUNTY OF MONTMORENCY,

Defendant.

______________________________________ /

OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND

AMENDING THE CASE MANAGEMENT AND SCHEDULING ORDER

On July 29, 2009 Plaintiff Bonnie Turppa filed a complaint alleging she was discriminated

against by Defendant County of Montmorency because of her age in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–629, and the Elliott-Larsen Civil

Rights Act (ELCRA), Mich. Comp. Laws §§ 37.2101–.2804. The case was initially assigned to

Judge Stephen J. Murphy, III in Detroit, but was reassigned to this Court on January 20, 2010

because the initial assignment was the result of a clerical error. See E.D. Mich. L.R. 83.10(b)(3) &

83.11; [Dkt. # 12]. Before the reassignment, Defendant filed a motion to dismiss [Dkt. # 4] on

November 17, 2009, contending that Montmorency County is not Plaintiff’s employer. Plaintiff

filed a motion for sanctions [Dkt. # 8] on December 14, 2009, contending the motion to dismiss was

filed in bad faith and that Plaintiff is entitled to attorney fees and costs associated with contesting

it. 

On April 28, 2010, the Court issued an Opinion and Order denying Plaintiff’s motion for

sanctions and directing additional briefing on the motion to dismiss. The Opinion and Order [Dkt.

# 16] noted that determining the identity of Plaintiff’s employer or employers in this instance is
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“complicated by the structure of the Michigan Judiciary and the relationship between the state’s trial

courts and the local government units that fund their operation.” Before her termination, Plaintiff

was a probate register for the Montmorency County Probate Court—a position involving judicial

responsibilities supervised by an officer of the court but funded and administered by the county. The

Court requested that the parties focus their supplemental briefing on the personnel policies

applicable to the Montmorency County Probate Register, whether the probate court is an “arm of

the state” and immune from suit, the budgetary and management processes for the probate court, and

whether additional discovery would be necessary to answer the questions raised.

The supplemental briefing has been received. Plaintiff has advanced enough evidence to

substantiate her allegation that Montmorency County and the Montmorency County Probate Court

may be Plaintiff’s co-employers. As a result, both are subject to suit for the allegedly discriminatory

discharge, but neither is necessarily a “required” party under Federal Rule of Civil Procedure 19(b).

The probate court is not “required to be joined” because Plaintiff’s complaint seeks damages and

not reinstatement. Indeed, as Defendant emphasizes in its supplemental brief there are two

significant reasons Plaintiff may have decided not to join the probate court as a Defendant. First,

there is some degree of probability that the probate court is immune from suit as an arm of the state.

Lowe v. Hamilton County Dep’t of Job & Family Servs., __ F.3d __, No. 09-3532, 2010 WL

2605945 (6th Cir. July 1, 2010); Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005); Dolan v. City

of Ann Arbor, 666 F. Supp. 2d 754 (E.D. Mich. 2009); Pucci v. Nineteenth Dist. Ct., 565 F. Supp.

2d 792 (E.D. Mich. 2008). Second, because Montmorency County Probate Court was not named

as a party in Plaintiff’s proceedings before the Equal Employment Opportunity Commission

(“EEOC”), she may not have successfully exhausted her administrative claims against the probate
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court. Accordingly, Plaintiff will be permitted to proceed against only the county, and the

scheduling order will be extended in light of the delays associated with transferring the case from

the Southern Division and resolving Defendant’s pre-answer motion to dismiss. 

I

Defendant initially challenged Plaintiff’s complaint for failure to state a claim upon which

relief can be granted. Fed. R. Civ. P. 12(b)(6). “A pleading that states a claim for relief must

contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . .

. .” Fed. R. Civ. P. 8(a)(2). The requirement is meant to provide the opposing party with “ ‘fair

notice of what the . . . claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 42, 47 (1957)). If a complaint does

not meet that standard, the opposing party may move to dismiss it for failure to state a claim at any

time before filing an answer. Fed. R. Civ. P. 12(b)(6). 

In the previous Opinion and Order, the Court determined that both parties had submitted

materials outside the pleadings and it was appropriate to consider those materials in determining

which entity or entities employed Plaintiff. Accordingly, the motion to dismiss was converted to

a motion for summary judgment pursuant to Rule 56. Fed. R. Civ. P. 12(d). Notably, the motion

was filed early in the case. As a result, the factual information that has been submitted and

considered is only that information known to the parties when the case was filed, and additional

information may be learned or challenged as discovery progresses. Both parties may learn

information that is at present in the sole possession of their opponent. 

A motion for summary judgment should be granted if “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). The
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party seeking summary judgment has the initial burden of informing the Court of the basis for its

motion, and identifying where to look in the record for relevant evidence, “which it believes

demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). The burden then shifts to the opposing party who must “set out specific facts

showing a genuine issue for trial.” Fed. R. Civ. Pro. 56(e)(2); Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). If the opposing party fails to raise genuine issues of fact and the record

indicates the moving party is entitled to judgment as a matter of law, the court shall grant summary

judgment. Anderson, 477 U.S. at 250. 

II

Plaintiff was hired as the “Deputy Probate/Juvenile Register in the Probate Court Office in

Montmorency County” on July 17, 1995. Def.’s Answers to Interrogatories at 4; [Dkt. # 7-10]. She

was elevated to the position of “probate register” in 1998 by then-Montmorency County Chief

Probate Judge Robert P.M. Norstrom. Pl.’s Compl. ¶ 10. A “probate register” is a statutorily

defined position with specific powers and duties. Mich. Comp. Laws §§ 600.833–.834. She served

as probate register until October 29, 2007 when her employment was terminated by Montmorency

County Chief Probate Judge John E. Fitzgerald. Pl.’s Resp.; [Dkt. #7-6]. Plaintiff was more than

forty years old when her employment was terminated. Pl.’s Compl. ¶ 6.

From 1998, when she was appointed probate register, until 2000, Plaintiff served without the

assistance of a deputy register. Id. ¶ 13. In 2002, while the probate court was still under the

direction of Judge Nordstrom, Montmorency County approved funding to hire a deputy probate

register to work two or three days per week. Id. ¶ 14. Judge Nordstrom retired in July 2003, and

he was replaced by Judge Michael G. Mack that fall. Id. ¶¶ 15–16. In March 2006 Judge Mack

resigned, and the deputy register also left for a different position. Id. ¶¶ 19–20. After Judge
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Fitzgerald was appointed to fill the probate court judge vacancy in May 2006, Jodi Gordon was hired

to fill the vacant deputy probate register position in October 2006. Id. ¶¶ 21–22. Plaintiff was

responsible for training Gordon, who was 39 years old, as she had been for training both of the

previous deputy probate registers. Id. ¶¶ 22–26. 

Plaintiff asserts that in August 2007, Judge Fitzgerald started asking Plaintiff about

retirement, “in light of her age,” and suggesting that he would like her to retire. Id. ¶¶ 27–28.

Plaintiff asserts that Judge Fitzgerald never questioned her ability to do her job, and that concerns

about her performance were not raised until her employment was terminated. Id. ¶¶ 28–30. On

October 27, 2009, Plaintiff had a discussion with Judge Fitzgerald and Montmorency County

Coordinator Robert Goodall in the Judge’s office. Id. ¶ 32. She was asked to resign, and when she

refused, her employment was terminated. Id. ¶¶ 33–35. Gordon, the former deputy probate register,

was appointed probate register in December 2007. Id. ¶ 37. 

III

Defendant’s response to the Court’s request for additional briefing reiterates its position that

“Plaintiff was an employee of the Montmorency County Probate Court, only,” and not of the county.

As the earlier Opinion and Order explained, in Judicial Attorneys Ass’n v. Michigan, 459 Mich. 291

(1998), the Michigan Supreme Court concluded that portions of Public Act 374 of 1996 designating

court support workers, including probate registers, employees of the county where they work were

unconstitutional. Defendant now emphasizes that Montmorency County reached a similar

conclusion in a resolution passed by the County board shortly after Public Act 374 was passed by

the Michigan Legislature. The resolution provides: 

By the lawful Authority of Const 1963, art 3, § 2, and art 6, § 1, county-paid

employees of the Probate Court as defined [Public Act 374], § 837, are hereby

declared to be the employees of the judicial branch of government-probate court
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division. 

Resolution of Montmorency County Declaring the Employer of County-Paid Employees of the

Probate Court as Defined by 1996 PA 374, § 837, Res. No. 96-17, Aug. 14, 1996; [Dkt. 17-1].

Putting aside questions about whether a county board has authority to reach a legal principal

contrary to a state law, the resolution at least provides some indication of the county board’s

intentions. Board members sought, through passage of the resolution, to ensure probate registers

remained employees of the state and not the county at that point in time. The resolution does not,

however, provide significant new information as to how court employment was administered or how

the employees were actually managed by the court and the county. As explained in the previous

Opinion and Order, the inquiry into whether the county, the court, or both were Plaintiff’s employers

depends more on how the county and court were actually managed than on conclusory statements

by the state legislature, the county board, or even the Michigan Supreme Court. 

Defendant also emphasizes a December 27, 2006 administrative order in which Judge

Fitzgerald appointed Plaintiff as probate register and Plaintiff signed an acknowledgment of the

terms of her employment. [Dkt. 17-6]. After outlining the duties of the Montmorency County

probate register and Judge Fitzgerald’s authority to make the appointment, the order provides that

Plaintiff “is to assume the duties of Probate Register and said duties shall continue during the

pleasure of this Court.” Id. Defendant emphasizes that the document memorializes Plaintiff’s

understanding that her continued employment was subject to the “pleasure” of the chief probate

judge. Defendant also emphasizes that the chief probate judge had sole supervisory authority over

Plaintiff throughout her employment as probate register, and that participation by the County of

Montmorency in administrative and managerial matters was only at the chief probate judge’s

request. For example, the decision to end Plaintiff’s employment as probate register was made by
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Judge Fitzgerald, acting alone, and County Coordinator Robert Goodall’s presence when the

information was delivered to Plaintiff was at Judge Fitzgerald’s request. The county official was

present only to serve as a witness to the discharge. See Goodall Aff., [Dkt. # 17-9]; Fitzgerald Aff.,

[Dkt. # 17-10]. 

Defendant also explains that the Montmorency County Probate Court uses a line-item budget

proposal format. [Dkt. # 17-7–8]. That means that the chief probate judge submits a proposal to the

county with line item detail, and the proposal can be approved or rejected by the county board. State

statute provides a procedure for reconciling differences, if they occur. Mich. Comp. Laws §

600.837(1); see also Administrative Order 1998-5 available at

http://coa.courts.mi.gov/rules/documents/3AdministrativeOrders.pdf. 

Finally, Defendant acknowledges that Plaintiff, as probate register, was largely subject to

the county’s personnel policies. There is no management council for the probate court, unlike the

circuit court, because its geographic jurisdiction is limited to Montmorency County. Defendant

contends that the chief probate judge has sole authority to adopt personnel policies, and, in an

exercise of his discretion, decided to adopt the 2000 Montmorency County personnel policy. [Dkt.

# 17-23]. The chief probate judge also made some changes through administrative orders, such as

adding additional holidays, like New Years Eve. [Dkt. # 17-11–13]. The chief probate judge did

not, however, make any significant revisions to the Montmorency County personnel policy or

explain whether he or the County administered it. Indeed, when Plaintiff sought compensation for

unused vacation time following her termination, it was the Montmorency County Board of

Commissioners and not the chief judge that determined her entitlement to payment for unused

vacation time pursuant to the county’s personnel policies. 

In sum, the additional facts provided by the county at the Court’s request do not change the
1

 As the Michigan Court of Appeals recognized in Ashker and Jubenville, McCarthy was

partially overruled by Norris v. State Farm Fire & Cas. Co., 229 Mich. App. 231 (1998). However,

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conclusion reached in the last Opinion and Order: the most logical inference that can be drawn from

the circumstances surrounding Plaintiff’s employment is that Plaintiff may have been a co-employee

of both the county and the probate court. Although the chief probate judge exercises sole managerial

control over the Montmorency County probate register’s performance of judicial responsibilities,

over time, some employment oversight duties were also being performed by the county. The

county’s personnel policies, for example, were adopted by the probate court and the county board

made the determination, pursuant to those policies, of whether Plaintiff should be paid for unused

vacation time when her employment ended. Indeed, it is undisputed that the county was also

responsible for funding Plaintiff’s position, was identified as Plaintiff’s employer on the W-2 issued

for federal income tax purposes and submitted to the Internal Revenue Service, and responded as

Plaintiff’s employer to unemployment inquiries. Plaintiff has demonstrated that the county and the

probate court may well have served as co-employers. 

IV

This conclusion is buttressed by the multi-factor analysis often used by courts to determine

whether an employer-employee relationship exists under the ADEA or ELCRA. See Shah v.

Deaconess Hosp., 355 F.3d 496, 499–500 (6th Cir. 2004) (applying the “common law agency test”

in an ADEA case and noting the substantive differences between the agency test and the economic

reality test are minimal); Jubenville v. Mich. Dep’t of Corrs., No. 234352, 2002 WL 31956493

(Mich. Ct. App. Dec. 20, 2002) (applying the “economic reality test” in the context of an ELCRA

claim) (citing Ashker v. Ford Motor Co., 245 Mich. App. 9, 15 (2001); McCarthy v. State Farm Ins.

Co., 170 Mich. App. 451, 455 (1988)).1

 Although the tests are usually used by courts considering
the McCarthy court’s conclusion that the economic reality test should be used to evaluate employeremployee relationships under ELCRA was not affected. Jubenville, No. 234352, 2002 WL

31956493, at * 1 n.1. 

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whether a particular individual is an employee or an independent contractor, many of the factors are

still useful to the determination of which of two entities a particular individual works for. See also

Simpson v. Ernst & Young, 100 F.3d 436, 443–44 (6th Cir. 1996) (evaluating whether an individual

is a partner, and thus an employer, or an employee pursuant to the common law agency test). 

In the Sixth Circuit, relevant factors include the degree of control exercised by the alleged

employer over the individual’s work product; the skill required to perform the individual’s duties;

the duration of the parties’ relationship; the alleged employer’s ability to assign additional tasks; the

individual’s discretion concerning when and how to work; the payment method; the individual’s role

in retaining assistants; whether the work is part of the alleged employer’s regular business; the

individual’s employee benefits; and tax treatment of the individual’s compensation. Shah, 355 F.3d

at 499–500 (quoting Simpson, 100 F.3d at 443) (additional citations omitted). Under Michigan law,

the relevant factors are the degree of control exercised by the alleged employer over the individual’s

duties; payment of wages; authority to hire and fire; and the responsibility for maintenance of

discipline. McCarthy, 170 Mich. App. at 455 (citing Wells v. Firestone Tire & Rubber Co., 421

Mich. 641, 647 (1984)). No one factor is weighted more heavily than the others; rather, courts

evaluate the totality of the circumstances to determine whether the individual is truly an employee

of the alleged employer. 

In this case, after the unhelpful factors are eliminated, the key inquiries are the degree of

control the County exercised over Plaintiff’s work duties, the duration of their relationship, the

decision to hire and terminate her employment, evaluation and counseling in regard to her
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performance, payment of wages, and the provision of employee benefits. The chief probate judge

did exercise, it appears, exclusive control over Plaintiff’s judicial responsibilities, and evaluating

and counseling her in regard to her performance of those duties. Administrative control,

compensation and employee benefit programs, and hiring and termination decisions, however, were

influenced by the county. The county developed and administered personnel policies, which were

then “adopted” by the chief judge. The chief judge submitted budget proposals, including wages

and benefits, but the wage and benefit decisions were ultimately made by the County Board of

Commissioners. The county also treated Plaintiff as an employee of the county for income tax and

unemployment insurance purposes. Moreover, while the elected chief judge changed over time,

Plaintiff’s employment relationship with the county remained constant.

The multi-factor tests identifies a division of responsibility over Plaintiff’s employment. The

tests support the conclusion that Plaintiff has advanced enough evidence to demonstrate that neither

the probate court nor the county functioned as her exclusive employer—they acted together dividing

duties as a matter of efficiency, convenience, and statutory requirement. 

V

To the extent other Michigan courts and other judges within this District have reached

different conclusions concerning which entity employs workers supporting the state’s circuit,

district, and probate courts, those decisions are largely distinguishable on their facts. In the first case

cited by Defendant, Judges of the 74th Judicial District v. Bay County, the Michigan Supreme Court

concluded that employees assisting the judges of the Bay County District Court were employees of

that court and not of Bay County. 385 Mich. 710 (1971). As a result, Bay County’s Board of

Commissioners could not fix the employees’ salaries or force them to join a union. Id. at 722–27.

In this case, by contrast, a specific statute at least implicitly authorizes the County to set the
2

 On remand, Judge Borman requested an amicus brief from the Michigan State Court

Administrative Office, addressing whether the state or the township would be responsible for paying

a judgment in the case, if indeed the plaintiffs received a favorable judgment. The amicus brief was

due by the end of November 2009, but was never filed. No further action has been taken in the case.

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individual salaries as part of a line-item budget, and an Administrative Order encourages probate

judges to negotiate salaries and benefits that correspond with other county employees. More

importantly, the question raised does not concern union membership, but whether a probate register

is entitled to the benefit of anti-discrimination legislation enacted by both the State of Michigan and

the United States. Even if probate registers are not “employees” of the county that funds their salary

for the purposes of collective bargaining agreements, in this specific instance, Plaintiff may well be

an employee of Monmorency County for the purposes of a civil action authorized by the ADEA and

ELCRA. 

Next, in Englar v. 41B District Court, Judge Borman cited Judges of the 74th Judicial

District for the proposition that employees supporting the 41B District Court were employees of that

court and not of the court’s funding unit, Clinton Township. No. 04-CV-73977, 2006 U.S. Dist.

LEXIS 68157 (E.D. Mich. Sept. 22, 2006), rev’d on other grounds, 311 F. App’x 863 (6th Cir.

2009). Judge Borman did not provide additional analysis of the issue and it is also not clear from

the opinion the extent to which it was briefed. Id. at *11–13. Judge Borman focused his attention

on sovereign immunity, concluding that the 41B District Court was immune from suit because it is

an “arm of the state” as opposed to a “political subdivision” of the state. Id. at *11–15. The Sixth

Circuit reversed, noting that it was unclear whether the county or the court would be responsible for

paying a judgment rendered in the suit, and as such, it was unclear whether the 41B District Court

was actually an “arm of the state.” 311 F. App’x 863. The question of whether the court or the

county was plaintiff’s employer was not appealed and has not been further addressed.2
See Dkt. # 04-73977. But see Dolan v. City of Ann Arbor, 666 F. Supp. 2d 754 (E.D. Mich. 2009)

(Rosen, J.) (dismissing an FMLA complaint brought by a former employee of the Fifteenth District

Court based on sovereign immunity, even though it could not be determined whether the city or the

court would be responsible for paying a judgment).

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Englar’s focus was whether a Michigan district court is immune from suit under § 1983 of

the Civil Rights Act pursuant to the doctrine of sovereign immunity. Judge Borman never directly

addressed what it means to be an “employer” in the context of an ADEA and ELCRA claim. Rather,

he relied on the authority of Judges of the 74th Judicial District. 

Next, in Geller v. Washtenaw County, an opinion issued by Judge Borman on the same day

as Englar, the court granted Washtenaw County’s motion for reconsideration and dismissed all of

the plaintiff’s claims against the county on the grounds that the county was not his employer. No.

04-CV-72947, 2006 U.S. Dist. LEXIS 68156 (E.D. Mich. Sept. 22, 2006). Before his discharge, the

plaintiff was a law clerk to the Washtenaw County probate judge. Geller is similar to the case

before the Court in that the plaintiff alleged, in part, that he was unlawfully terminated from his

employment based on his gender in violation of ELCRA and the Equal Protection Clause. The only

significant factual difference is that the county’s employment handbook specifically stated that court

workers are not considered employees of the county. Geller, like the Plaintiff in this case, received

a W-2 from the county, abided by the county’s policies and procedures, and was paid according to

a budgetary allotment provided by the county board. 

Notwithstanding those facts, the Geller court’s extensive reliance on Judicial Attorneys Ass’n

was misplaced for the reasons discussed in detail in the previous Opinion and Order in this case.

See Turppa v. County of Montmorency, __ F. Supp. 2d __, No. 09-12974, 2010 WL 171133 (E.D.

Mich. Apr. 28, 2010). Judge Borman decided that under Michigan law, court workers are

employees of the court and not the court’s funding unit. Judicial Attorneys Ass’n however, actually
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stands for the proposition that the state legislature cannot require court employees to be the

employees of the counties where they work. The case did not hold that court employees can never

be managed or their employment administered by the counties, potentially making them employees

for the purposes of the ADEA and ELCRA. Moreover, Geller does not account for the different

context from which Judicial Attorneys Ass’n arose and the specific facts underlying the situation

before the court in Geller and this case. When the ADEA and ELCRA use the word “employer” to

define the person or entity that will be liable for unlawful discrimination, they use that word in a

particular way. As discussed above, the term “employer” refers to the entity that issued the

individual’s paycheck, underwrote her benefits, created the policies and procedures governing her

employment, and managed the administrative aspects of her job, as well as the entity responsible for

day-to-day supervision of the employee. 

Finally, in Graves v. Wayne County Third Circuit Court, the plaintiff, a disgruntled law clerk

whose employment was terminated shortly after she informed her boss that she was pregnant, sued

the Wayne Count Circuit Court and Judge Wendy M. Baxter under Title VII. No. 08-11168, 2008

U.S. Dist. LEXIS 60792 (E.D. Mich. Aug. 8, 2008). Graves is inapposite because it does not

involve a county defendant. Moreover, the plaintiff’s claims were dismissed by Judge Cohn not

because she was not an employee of the county, but because she was not an “employee” at all within

the meaning of Title VII. See Birch v. Cuyahoga County Probate Court, 392 F.3d 151, 157 (6th Cir.

2004) (noting that members of an elected judge’s “personal staff” are not “employees” within the

meaning of Title VII). Rather than support Defendant’s motion, Graves illustrates that federal antidiscrimination statutes use the terms “employer” and “employee” in technical ways, and definitions

of the terms cannot be extracted from other contexts and recycled without careful analysis. 
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VI

The conclusion that the court and the county may be co-employers raises two follow-up

questions, which were also submitted to the parties for additional briefing. First, is it possible to

proceed with this action against only the county under Federal Rule of Civil Procedure 19? Second,

if not, is it feasible to join the probate court as a party? And, more specifically, is the probate court

immune from suit under the 11th Amendment as an arm of the state? 

Defendant answers the first question in the negative, contending that the probate court is a

necessary party and that the case must be dismissed because the probate court cannot be feasibly

joined. Defendant does not, however, identify any factual explanation or legal authority in support

of its assertion. Plaintiff, for her part, does not address the question. Defendant also answers the

second question in the negative, quoting a lengthy passage from Judge Rosen’s decision in Dolan

v. City of Ann Arbor, 666 F. Supp. 2d 754 (E.D. Mich. 2009). In Dolan, Judge Rosen concluded that

the Fifteenth District Court was protected by Eleventh Amendment sovereign immunity against suits

in federal court. Id. at 764–65. Plaintiff responds with an equally lengthy quotation from Judge

Lawson’s decision in Pucci v. Nineteenth District Court, 565 F. Supp. 2d 792 (E.D. Mich. 2008).

In Pucci, Judge Lawson concluded that neither the Nineteenth District Court nor its chief judge,

Mark W. Sommers, were immune from suit in federal court. Id. at 803–05. Importantly, neither

party provides in depth analysis as to the specific factors the Sixth Circuit has directed trial courts

to apply in determining whether a state actor is immune from suit pursuant to the doctrine of

sovereign immunity. See Lowe v. Hamilton County Dep’t of Job & Family Servs., __ F.3d __, No.

09-3432, 2010 WL 2605845, at *3 (6th Cir. July 1, 2010) (stating the four factors).

A

Defendant contends that the probate court is a necessary party, but infeasible to join because
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it is immune from suit in federal court as an arm of the state. See Part VI(B) infra. As relevant here,

Federal Rule of Civil Procedure 19(a)(1) provides that “[a] person who is subject to service of

process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined

if . . . in that person’s absence, the court cannot accord complete relief among existing parties[.]”

Defendant contends that the probate court is a necessary party because Plaintiff contends she was

discriminated against by the chief judge—a state employee—and not any county official or

employee. Defendant further contends that it lacks the authority to reinstate Plaintiff, and as a result,

complete relief requires joinder of the probate court and Chief Judge Fitzgerald. 

Plaintiff’s complaint, however, seeks only money damages, not reinstatement. Accordingly

complete relief can be accorded without the presence of Chief Judge Fitzgerald or the probate court

as parties, although Judge Fitzgerald will likely be a witness. See Drankwater v. Miller, 830 F.

Supp. 188, 192–94 (S.D.N.Y. 1993). Although Judge Fitzgerald and not a county employee

allegedly engaged in the discriminatory conduct, the county funded Plaintiff’s salary and no less

logically may be required to fund a damage award. To the extent the state may be responsible for

some or all of the damages, the county may seek idemnity. Because Defendant has not provided a

legal justification for requiring the probate court to participate as a party in this case, the case against

the county should not be dismissed under Rule 19. 

B

As to the second question, it remains unclear whether the probate court would be immune

from suit under Eleventh Amendment sovereign immunity. An entity that may be considered an

“arm of the state” is immune from suit in federal court under the Eleventh Amendment, but an entity

that is a “political subdivision” is not. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 280 (1977). There are five factors relevant to the inquiry: (1) the State of Michigan’s
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potential legal liability for a judgment; (2) how state law defines the entity; (3) what degree of

control the state maintains over the entity; (4) whether the entity’s functions fall under the traditional

purview of state or local government; and (5) the source of the entity’s funding. Lowe, No. 09-3432,

2010 WL 2605845, at *3; Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005). The most important

factor is the first one: the state’s potential legal liability for the judgment. Hutsell v. Sayre, 5 F.3d

996, 999 (6th Cir. 1993) (“It is well-settled that a suit in federal court by private parties seeking to

impose a liability which must be paid from public funds in the state treasury is barred by the

Eleventh Amendment.”). 

In this case, it is not yet clear whether a judgment rendered against the probate court would

be paid out of the state treasury or by Montmorency County. Although the state has general

administrative authority over the probate courts, local government units like Montmorency County

fund them. Indeed, as Judge Lawson noted in Pucci, Michigan law specifically provides that the

“state . . . is not liable for claims arising out of the employment relationship of court officers or

personnel or arising out of the conduct of court officers or personnel.” Mich. Comp. Laws. §

600.591(12); Pucci, 565 F. Supp. 2d at 565. Accordingly, Judge Lawson concluded that the county

would be required to pay any judgment and that the court was not immune from suit under the

Eleventh Amendment. But see Dolan, 666 F. Supp. 2d at 761–62. Still, as Judge Rosen emphasized

in Dolan, the statutes providing that the state is not liable for employment claims have been

frequently scrutinized on constitutional grounds, and neither the state nor the county has ever

admitted liability. Id. It is unlikely that the entity responsible for any judgment can be conclusively

determined until the judgment is actually in place.

Moreover, the other factors relevant to sovereign immunity similarly fail to provide a clear

answer. The other four factors are: (a) how state law defines the entity; (b) what degree of control
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the state maintains over the entity; (c) whether the entity falls under the traditional purview of sate

or local government; and (d) the source of the entity’s funding. Ernst v. Rising, 427 F.3d 351, 359

(6th Cir. 2005). Pursuant to the second, state law generally classifies courts as a branch of state

government. See Mich. Const. Art. VI (describing the state judicial system); Judicial Attorneys

Ass’n v. Michigan, 459 Mich. 291 (1998) (describing the courts as a separate branch of state

government and noting the importance of separation of powers). However, state law also requires

local government entities to fund the courts, which demonstrates that the courts operate with varying

degrees of shared responsibility. Moreover, before Judicial Attorneys Ass’n, state law specifically

provided that court employees are employees of their funding units, not the state. Although that

language is contrary to the state constitution, it nevertheless reveals some conflict about how court

employees should be treated pursuant to state law. This factor does not identify a clear conclusion.

The final three factors identify conflicting conclusions. The third and fourth factors seem

to favor immunity, but the fifth factor militates against it. Pursuant to the third factor, the Michigan

Supreme Court has general supervisory authority over all the courts in the state and the chief judge

of each division has authority over each individual court. Judicial Attorneys Ass’n, 459 Mich. 291.

Under the fourth factor, the Michigan courts are traditionally viewed as a branch of the State’s

government. But the fifth factor suggests with equal authority that the probate court is not an arm

of the state—the responsibility for funding them rests entirely on the local government units where

they operate. 

In summary, it is still unclear whether suit could be maintained against the probate court if

it were joined as a defendant. Notably, some clearer answers may be forthcoming. Pucci was

appealed to the Sixth Circuit and oral argument was held before Judges Batchelder, Gibbons, and

Maloney on October 16, 2009. Case No. 08-2017. An opinion has not been issued. Dolan was also
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appealed and the briefing is now complete. Case No. 09-2493. But it is not yet clear how those

cases will be resolved or if the Sixth Circuit will provide some clear guidance on the immunity

issues surrounding Michigan’s courts. The Sixth Circuit’s recent decision in Lowe emphasized that

the burden of proving immunity lies with the entity asserting it. No. 09-3432, 2010 WL 2605843,

at *3. Indeed, in order to carry its burden with respect to the most important factor, the Sixth Circuit

indicated that the entity asserting immunity would be required show that the state is “potentially

legally liable for a judgment against it” or that “the state actually will reimburse” the entity for

damages paid. Id. at *5–6. 

C

Defendant also contends that the probate court cannot be feasibly joined because it was not

named as a party in Plaintiff’s administrative complaint to the EEOC. The contention will not be

considered because it is beyond the scope of the additional briefing requested in the last Opinion and

Order, and irrelevant in light of the conclusion that the probate court is not “required to be joined”

under Rule 19. 

VII

Accordingly, it is ORDERED that Defendant’s motion to dismiss [Dkt. # 4] is DENIED.

It is further ORDERED that the case management and scheduling order [Dkt. # 14] is

AMENDED as follows: 

C Expert disclosure, plaintiff: October 1, 2010

C Expert disclosure, defendant: October 29, 2010

C Pretrial disclosures: April 1, 2011

C Discovery cutoff: December 2, 2010

C Settlement conference: Nov. 30, 2010 at 3:30 p.m.
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C Motions challenging experts: January 14, 2011

C Dispositive motions: January 14, 2011

C Motions in limine April 15, 2011

C Stipulation for case evaluation: October 8, 2011

C Final pretrial order and jury instructions: May 6, 2011

C Final pretrial conference: May 12, 2011 at 3:30 p.m.

C Trial date: May 24, 2011 at 8:30 a.m. 

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: July 14, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on July 14, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS