OPINION
ENSLEN, District Judge.
This case requires the Court to determine whether a dismissal for no progress under Michigan law constitutes an adjudication on the merits so that the doctrine of res judicata bars the subsequent reinstitution of an action thus dismissed.
On January 18, 1982, Plaintiff, Ralph Wilkie, filed suit in this Court against Defendant, Schwan's Sales, alleging that Defendant breached Plaintiff's employment contract by wrongfully terminating him in retaliation for his desire to obtain workers compensation for a medical condition which was surgically corrected. Defendant answered and on March 5, 1982, moved for judgment on the pleadings asserting that the instant Complaint must be dismissed as being barred by a prior judgment rendered in the St. Joseph County Circuit Court.
To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. Adickes v. S. H. Kress & Company, 398 U.S. 144, 147, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (CA 6 1976); Tee-Pak, Inc. v. St. Regis Paper Company, 491 F.2d 1193 (CA 6 1974). If no genuine issue as to any material fact is established, the moving party is entitled to judgment as a matter of law. Chavez v. Noble Drilling Company, 567 F.2d 287 (CA 6 1978); Irwin v. U. S., 558 F.2d 249 (CA 6 1977).
In determining whether or not there are issues of fact requiring a trial, "the inferences to be drawn from the underlying facts contained in the (affidavits, attached exhibits, and depositions) must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corporation v. Storm King Corporation, 303 F.2d 425 (CA 6 1962). Even if the basic facts are not disputed, summary judgment may be inappropriate when contradictory
As the basis of jurisdiction in this suit is diversity of citizenship, the Court looks to state substantive law. Since the alleged injurious conduct occurred in Michigan, this Court is guided by Michigan law on the issue.
In Mango v. Plymouth Township Board of Trustees, 33 Mich.App. 715, 190 N.W.2d 285 (1971), the Court of Appeals defined res judicata as the doctrine which bars a subsequent action between the same parties when the facts or evidence essential to the maintenance of two actions are identical. "The doctrine of res judicata applies only when the issues and parties or their privies in the prior litigation are identical". Sheridan Drive Association v. Woodlawn Backproperty Owners Association, 29 Mich.App. 64, 68, 185 N.W.2d 107 (1970); Topps-Toeller, Inc. v. City of Lansing, 47 Mich.App. 720, 209 N.W.2d 843 (1973). In other words, a judgment, to constitute a bar to a claim in a subsequent action, must be rendered on the merits, on the same matter in issue, and between the same parties or their privies. Hewett Grocery Company v. Biddle Purchasing Company, 289 Mich. 225, 286 N.W. 221 (1939); Zak v. Gray, 324 Mich. 522, 37 N.W.2d 550 (1949); Hammitt v. Straley, 338 Mich. 587, 61 N.W.2d 641 (1954); Gomber v. Dutch Maid Dairy, 42 Mich.App. 505, 202 N.W.2d 566 (1972); Mazzola v. Vineyard Homes, Inc., 54 Mich.App. 608, 221 N.W.2d 406 (1974); Fry v. Kaiser, 60 Mich.App. 574, 232 N.W.2d 673 (1975).
Here, it is apparent that a prior judgment of dismissal was rendered by the St. Joseph County Circuit Court. A review of the Complaint filed in that suit reveals that the matters in issue there are the same as those raised in this suit and that the parties in both the state and federal litigation are exactly the same. The question which remains, however, is whether the state court judgment was a final judgment on the merits so that the elements of res judicata are established.
As noted by the Defendant, historically, the dismissal of a case on the no-progress calendar was considered to be without prejudice. See M.C.L.A. § 618.2; M.S.A. § 27.982. Since then, this statutory provision has been replaced by Michigan General Court Rule 501, which became effective on January 1, 1963. That Court Rule (GCR 1963 501.3) provides in pertinent part:
Interestingly, at no place within the context of this Court Rule is it designated whether a no-progress dismissal is with or without prejudice. However, this Court Rule must be read in conjunction with GCR 1963, 504.2 which states:
In the instant case, the order of dismissal in the state court proceeding did not "otherwise specify" what type of dismissal was being entered. Thus, upon application of the aforestated Court Rule, the dismissal therein appears to be an adjudication upon the merits.
This finding, however, is contrary to the decision rendered by the Court of Appeals in Caughey v. Rozycki, 22 Mich.App. 317, 177 N.W.2d 257 (1970), where it was held that a dismissal for no progress does not operate as a meritorious adjudication on the merits and that suits so dismissed were not barred from subsequent reinstitution. There, the defendant contended that a previous no-progress dismissal under Rule 501.3 was a dismissal not provided for in Rule 504, and that because the order dismissing the plaintiff's action did not specify that the dismissal would be without prejudice, the dismissal by reason of Rule 504.2 operated as an adjudication upon the merits. Judge (now Justice) Levin reasoned for the Court:
The Court of Appeals declined to follow Caughey in Green v. Wayne Soap Company, 33 Mich.App. 74, 189 N.W.2d 729 (1971), where it was held that no-progress dismissals were adjudications on the merits for res judicata purposes and that such dismissals did bar reinstitution of suits so dismissed. Judge Levin, in dissent, reiterated the concern of the Caughey Court that "housecleaning" dismissals do not operate as an
Judge Levin explained that "individualized consideration" requires the trial court to consider all the pertinent circumstances of a particular case before the trial court's discretion is exercised to dismiss a case for "failure to prosecute".
Professor Moore has observed:
This distinction is critical, as the Supreme Court at 385 Mich. 785 (1971) peremptorily reversed in a unanimous order the Green decision, thereby giving support to the view espoused by Judge Levin in Caughey and in dissent in Green. In accord with this interpretation of the Green reversal is Macomb Concrete Corporation v. The Wexford Corporation, 37 Mich.App. 423, 195 N.W.2d 93 (1971), wherein the Court of Appeals acknowledged that the Levin limitation of Caughey to "housecleaning" dismissals found support in the peremptory order of the Supreme Court.
It is well settled that a district court is bound in a diversity case to follow published decisions of intermediate state appellate courts in the absence of any opinion of the highest state court, unless it is convinced by persuasive data that the highest state court would rule otherwise. Ruth v. Bituminous Casualty Corporation, 427 F.2d 290 (CA 6 1970); Hoover Ball and Bearing v. Pinkerton's, Inc., 500 F.Supp. 673 (WD Mich 1980). Here, the only exposition by the Michigan Supreme Court on the issue at hand has been the summary reversal of Green and, more importantly, the Court Rules themselves. In Michigan, the Supreme Court has the authority to adopt rules of procedure for all courts of record in the state. This pervasive power is derived from the Michigan Constitution of 1963 Article VI, Section 5: "the Supreme Court shall by general rule establish, modify, amend and simplify the practice and procedure in all courts of this state..." See Guastello v. Citizens Mutual Insurance Company, 11 Mich.App. 120, 160 N.W.2d 725 (1968). Hence, the language of the court rules in question must also guide this Court and, as already noted, those rules are conspicuously silent regarding whether a no progress dismissal is or is not an adjudication upon the merits.
Taking the foregoing into consideration, I am persuaded that the Supreme Court has recognized that some no progress dismissals are adjudications on the merits and some are not; i.e. the Supreme Court has in essence, adopted the distinction drawn by Judge, now Justice, Levin.
Indeed, it is my opinion that the Michigan Supreme Court would consider that the case sub judice was subjected to individualized consideration and, therefore, dismissed with prejudice. The St. Joseph County Circuit Court order of dismissal discloses that, prior to the entry of judgment by Judge James Noecker, counsel for the Plaintiff and Defendant submitted written letters containing a statement of position as to whether
APPENDIX A
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF ST. JOSEPH
ORDER OF DISMISSAL FOR LACK OF PROGRESS
At a session of said Court held in the Courthouse in the Village of Centreville in said county on October 16, 1981;
PRESENT: HON. JAMES NOECKER, Circuit Judge
The above entitled cause having been scheduled for the call of the no progress calendar for the opening of the October term of said Court on October 13, 1981, and the Court having received letters from counsel for both parties requesting that this cause be saved and dismissed, respectively, from which it appears that the plaintiff has failed to demonstrate that his failure to take steps or proceedings in the past year was not due to his own fault or lack of reasonable diligence;
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