                          STATE OF MICHIGAN

                            COURT OF APPEALS



TOM NOWACKI,                                                         FOR PUBLICATION
                                                                     March 14, 2017
               Plaintiff-Appellee,                                   9:00 a.m.

v                                                                    No. 330255
                                                                     Court of Claims
DEPARTMENT OF CORRECTIONS,                                           LC No. 15-000154-MZ

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and O’CONNELL and METER, JJ.

RONAYNE KRAUSE, P.J.

        In this class action lawsuit, defendant appeals by right the Court of Claims order granting
plaintiff a voluntary dismissal of his claims for injunctive and declaratory relief. This action was
originally filed in circuit court and was previously appealed. After remand, defendant
transferred the equitable and declaratory claims to the Court of Claims pursuant to MCL
600.6404(3), leaving the claims for monetary damages pending and stayed in the circuit court
pursuant to MCL 600.6421(2). Plaintiff sought to dismiss the equitable claims in order to
continue the proceedings in circuit court, and the Court of Claims, in a thoughtful and thorough
opinion, crafted a conditional dismissal along with, among other things, certain requirements for
providing notice to the class. We affirm.

      The previous appeal to this Court concerned the circuit court’s grant of class certification.
We previously provided the following background to this case:

               In this employment discrimination class action, plaintiff alleges that
       certain policies enacted by defendant at the Women’s Huron Valley Correctional
       Facility (WHV), defendant’s only facility that houses women prisoners,
       discriminate against male correction officers in violation of the Civil Rights Act
       (CRA), MCL 37.2101 et seq.

                                              * * *

             Before 2009, several lawsuits were brought against defendant alleging that
       some of its staff were sexually abusing female prisoners. Settlement agreements




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          were reached in these cases. In response, defendant sought, and the Michigan
          Civil Service Commission approved, the use of bona fide occupational
          qualifications (BFOQs),[1] which ensured that only women could be employed for
          certain positions at WHV. Plaintiff’s lawsuit in the underlying action alleges that
          defendant applied these BFOQs over broadly, improperly denying him and other
          men opportunities for various job assignments and overtime work. [Nowacki v
          Dep’t of Corrections, unpublished opinion per curiam of the Court of Appeals,
          issued August 19, 2014 (Docket No. 315969), p 1 (Nowacki I).]

In Nowacki I, we affirmed the circuit court’s grant of class certification, and our Supreme Court
denied leave to appeal, Nowacki v Dep’t of Corrections, 498 Mich 859; 858 NW2d 28 (2015).

        After defendant transferred the equitable and declaratory claims to the Court of Claims,
plaintiff moved to dismiss those claims in order to expedite resolution of the monetary claims,
which plaintiff asserted were “the primary objective of the class.” Over defendant’s objection,2
the Court of Claims conditionally granted that dismissal, requiring that the class notice in circuit
court must inform the putative class members of the dismissal of the class’s claim for that relief
and of their right to seek that relief in the Court of Claims if they were to elect their right to be
excluded from the class action. Except as to members who opted out of the class, the order was
binding on the class and constituted a dismissal with prejudice of the class’s claims for injunctive
and declaratory relief.

        We review a grant of voluntary dismissal for an abuse of discretion. Mleczko v Stan’s
Trucking, Inc, 193 Mich App 154, 155; 484 NW2d 5 (1992). Under MCR 3.501(E), “[a]n action
certified as a class action may not be dismissed or compromised without the approval of the
court, and notice of the proposed dismissal or compromise shall be given to the class in such
manner as the court directs.” That language confers broad discretion on the court issuing notice,
so we will also review the manner of notice chosen by the Court of Claims for an abuse of
discretion. “An abuse of discretion occurs when the trial court chooses an outcome falling
outside the range of principled outcomes.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567
(2010). We review de novo the construction and application of a court rule. Kloian v Domino’s
Pizza LLC, 273 Mich App 449, 456; 733 NW2d 766 (2006).




1
  The Elliot-Larsen Civil Rights Act, which prohibits an employer from “discriminat[ing] against
a person on the basis of sex with respect to a term, condition, or privilege of employment,” MCL
37.2202(1)(c), provides that “[a] person subject to this article may apply to the commission for
an exemption on the basis that . . . sex is a bona fide occupational qualification reasonably
necessary to the normal operation of the business or enterprise.” MCL 37.2208. “An employer
may have a bona fide occupational qualification on the basis of . . . sex . . . without obtaining
prior exemption from the commission” but bears “the burden of establishing that the
qualification is reasonably necessary to the normal operation of the business.” MCL 37.2208.
2
    The notability of a defendant objecting to the dismissal of claims against it is not lost on us.


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         Defendant first argues that it was improper for the Court of Claims to approve dismissal
of the class’s claim for injunctive and declaratory relief when the putative class members had not
yet been provided notice of the underlying action and their corresponding rights as required by
MCR 3.501(C).3 The language used by MCR 3.501(E) does appear to presume that notice of the
initial action has already been provided to the class. However, nothing in MCR 3.501 expressly
precludes a dismissal under MCR 3.501(E) when notice as required by MCR 3.501(C) has not
yet been provided. The Court of Claims determined that it would “serve the interests of judicial
economy and efficiency” to incorporate notice of the dismissal into the general notice of the
action that would eventually be provided to the class members in the circuit court proceedings.
We find no abuse of discretion in making the two notices contemporaneous. Indeed, as we will
discuss further, in light of defendant’s insistence on unnecessarily bifurcating this action, we find
that the trial court arrived at the only solution defendant made possible.

        Defendant next argues that “post-dismissal notification” to the class members is
inadequate to comply with MCR 3.501(E). MCR 3.501(E)’s requirement that the class be
notified of a proposed order strongly suggests that prior notice was intended. Precedent from the
federal courts4 suggests that part of the purpose of MCR 3.501(E) is to afford class members an
opportunity to object to a proposed dismissal or settlement. See Shelton v Pargo, Inc, 582 F 2d
1298, 1303 (CA 4, 1978) (interpreting the then similar Fr Civ P 23(e)5). Although the Court of
Claims ordered that a member who elects to be excluded from the class action may file a claim
for injunctive or declaratory relief, it clearly did dismiss the class’s claims for that relief before
providing notice to the class members of that proposed action. Therefore, at least in theory, a
hypothetical class member who wishes to remain in the class and desires equitable relief has
arguably been prejudiced by the lack of pre-dismissal notice.

        However, under the particular circumstances of this case, the decision to afford notice to
the class members after dismissal was not an abuse of discretion. First, the court rules do not
practically contemplate the procedural scenario at bar of a bifurcated class action. Consequently,


3
  MCR 3.501(C) requires the court to issue notice to the class members informing them of the
nature of the action and their various rights as class members. MCR 3.501(C)(3) provides in part
that “[a]s soon as practicable, the court shall determine how, when, by whom, and to whom the
notice shall be given; the content of the notice; and to whom the response to the notice is to be
sent.” “Reasonable notice of the action shall be given to the class in such manner as the court
directs.” MCR 3.501(C)(4)(a).
4
   When interpreting the Michigan Court Rules, a court may consider federal precedent
interpreting a similar federal rule for its persuasive value. See State ex rel Gurganus v CVS
Caremark Corp, 496 Mich 45, 70 n 3; 852 NW2d 103 (2014).
5
  Prior to 2003, Federal Rule of Civil Procedure 23(e) was substantially similar to MCR
3.501(E), providing that “[a] class action shall not be dismissed or compromised without the
approval of the court, and notice of the proposed dismissal or compromise shall be given to all
members of the class in such manner as the court directs.” All Plaintiffs v All Defendants, 645 F
3d 329, 332 (CA 5, 2011), quoting FR Civ P 23(e) (1999).


                                                 -3-
the courts simply must be permitted the flexibility and latitude to manage the cases before them
by exercising their “inherent powers” as consistent with the spirit of the Court Rules as
practicable and appropriate to the situation. See Brenner v Kolk, 226 Mich App 149, 157-160;
573 NW2d 65 (1997). The Court of Claims reasonably determined that, defendant having
effectively backed it and plaintiff into a corner, judicial resources would be best preserved and
the proceedings expedited by issuing one notice to the class instead of two.

        Furthermore, plaintiff maintained that monetary relief was the class’s “primary
objective,” the pursuit of which would be best advanced by dismissing the claims pending in the
Court of Claims in order to resume the proceedings in the circuit court. Plaintiff also maintained
that the putative class members were all actually aware of the proposed action, attaching to its
motion for dismissal a posting on a website created for the class action that set forth the
aforementioned reasoning behind the proposed action. The identities of the putative class
members (former and current male corrections officers at WHV) were likely actually, even if not
formally, known by both parties, so we find it reasonable for the Court of Claims to have
determined that the members were indeed aware of the pending voluntary dismissal. Because of
the prolonged history of this case, even more unnecessarily prolonged by the bifurcation, it is
equally reasonable to conclude that the putative class members likely supported the voluntary
dismissal.

        In any event, it is pure conjecture whether the class members would have objected to the
proposed dismissal. The Court of Claims went to great lengths in its order to ensure that any
class member who elects to be excluded from the class may bring an action in that court for
injunctive and declaratory relief, thereby minimizing any prejudice to a class member who seeks
that relief. Giving deference to the broad discretion afforded to the Court of Claims in
determining the manner of notice under MCR 3.501(E), we cannot say that it arrived at an
unprincipled outcome. Adelman, 486 Mich at 639.

        Finally, defendant argues that it will be unduly prejudiced by the dismissal because it
now faces the possibility of having to defend multiple actions in different forums. Defendant’s
assertion is at best a mirage. That possibility is always inherent in class actions: only class
members “who have not submitted an election to be excluded” are bound by a class action
judgment, and class members always had the right to elect to be excluded. MCR 3.501(D)(5).
Under the circumstances, we perceive no reason why the probability of class members doing so
has materially increased. Consequently, we fail to perceive how the voluntary dismissal with
prejudice of certain class claims has prejudiced defendant. We further note that defendant could
have stipulated to joinder of all claims in the Court of Claims, pursuant to MCL 600.6421(3), as
plaintiff apparently6 requested. Defendant’s accusation of plaintiff engaging in dilatory,
obstructive, delaying, or prejudicial tactics is presumptuous. If defendant has sustained any



6
  At oral argument, we directly asked counsel for defendant whether, as plaintiff asserted in his
brief on appeal, plaintiff did in fact ask defendant to stipulate to joinder. Defendant did not
provide us with an answer, even an implied answer, to the question we asked, but did admit that
the bifurcation was entirely defendant’s doing.


                                               -4-
prejudice, which as noted we do not find, it brought a great deal of that prejudice down upon
itself with its insistence on a totally unnecessary bifurcation. We are not inclined to ignore the
practical ramifications of undertaking a particular procedural strategy, even if that strategy is
entirely within the party’s legal rights. The Court of Claims resolved the situation presented to it
as elegantly, fully, and fairly as the tools it was provided could allow.

       Affirmed.

                                                             /s/ Amy Ronayne Krause
                                                             /s/ Peter D. O'Connell
                                                             /s/ Patrick M. Meter




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