FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2008-1106

KARIE HERMAN, individually and in her capacity as administratrix of the ESTATE OF NORU HERMAN, guardian ad litem of NUSIA HERMAN, MARKOS HERMAN, NEO HERMAN, KNOR HERMAN, LASTMAN HERMAN, ONELA HERMAN, and NMAN HERMAN, and as trustee for the heirs of NORU HERMAN, who are NORLIN HERMAN, NORIANO HERMAN, NOE HERMAN, KAPRIEL HERMAN, NUSI HERMAN, NUSIA HERMAN, MARKOS HERMAN, NEO HERMAN, KNOR HERMAN, LASTMAN HERMAN, ONELA HERMAN, and NMAN HERMAN,
Plaintiffs,

vs.

WILIPINAT BISALEN, in his individual capacity, STATE OF CHUUK, and JESSE MORI, in his official capacity as Director of Administrative Services,
Defendants.

______________________

MEMORANDUM CONCERNING SUBSTITUTION OF PARTIES AND SCHEDULING ORDER

Martin G. Yinug
Associate Justice

Decided: February 4, 2009

APPEARANCE:

For the Plaintiffs: Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure  Parties
 A public officer who sues or is sued in an official capacity may be described as a party by the officer's official title rather than by name. Herman v. Bisalen, 16 FSM Intrm. 293, 295 (Chk. 2009).

Civil Procedure  Parties; Civil Rights
 Since the FSM drew from United States counterparts both the civil rights statute the plaintiffs are suing under and the Rules of Civil Procedure, including Rule 25(d), it is appropriate to consult U.S. sources in determining whether the plaintiffs may sue someone in his former official capacity or whether Rule 25(d)(1) automatically substituted the current office-holder in his stead. Herman v. Bisalen, 16 FSM Intrm. 293, 295 (Chk. 2009).

Civil Procedure  Parties
 A claim against a government officer in his official capacity is, and should be treated as, a claim against the entity that employs the officer. A claim against a person "in his former official capacity" has no meaning. If the claimant seeks to hold the offender personally responsible, the claim is against the person in his individual capacity. Since a claim against an offender in his official capacity is, and should be treated as, a claim against the entity that employs the officer, a suit against an individual in his or her "former official capacity" is nonsensical. Herman v. Bisalen, 16 FSM Intrm. 293, 295-96 (Chk. 2009).

Civil Procedure  Parties
 The capacity to be sued is usually correlative of the capacity to sue. A person cannot be sued in his "former official capacity" anymore than a person can sue in his or her "former official capacity" because that person no longer represents the entity that once employed him or her. Herman v. Bisalen, 16 FSM Intrm. 293, 296 (Chk. 2009).

Civil Procedure  Parties; Civil Rights; Torts  Governmental Liability
 A suit against an offender in his or her official capacity is treated as a claim against the entity that employs that officer, but a public official that leaves office may still be liable for money damages in his or her personal capacity. Thus, an official capacity claim against a former official is meaningless unless it continues as a claim against that person's successor in office in the successor's official capacity. The office continues and is responsible for, and is presumed to have knowledge of, its earlier acts. Herman v. Bisalen, 16 FSM Intrm. 293, 296 (Chk. 2009).

Civil Procedure  Parties
 Neither the predecessor nor the successor public official has to be named  the plaintiffs may just describe the title or public office being sued. Herman v. Bisalen, 16 FSM Intrm. 293, 296 (Chk. 2009).

Civil Procedure  Parties
 When a defendant has been sued in his official and personal capacities and ceases to hold office, his successor in office is automatically substituted for the defendant in his official capacity, but the defendant will remain as a party-defendant in his personal capacity and may potentially be held personally liable. Herman v. Bisalen, 16 FSM Intrm. 293, 296-97 (Chk. 2009).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

 On December 29, 2008, the State of Chuuk attorney general filed an answer for defendant State of Chuuk and defendant Wilipinat Bisalen in his official capacity only. The court, believing that the "official capacity" in which the plaintiffs were suing Wilipinat Bisalen was in his capacity as Director of Administrative Services and that that official post is now held by another (believed to be one Jesse Mori), invited the parties to submit their views on whether, under Civil Procedure Rule 25(d)(1), Jesse Mori, in his official capacity, should not be (or have been) automatically substituted for Wilipinat Bisalen in his official capacity (but not in his individual capacity).

 On January 19, 2009, the plaintiffs submitted their opposition to the substitution of Jesse Mori for Wilipinat Bisalen in his official capacity. No other party submitted anything. The court rejects the plaintiffs' opposition. The court's explanation follows.

I. Plaintiffs' Position

 The plaintiffs assert that "there is a fundamental difference between one who is sued solely in a policymaking capacity, and one who is sued for his own separate and distinct actions." Opp'n to Motion to Substitute Parties at 2 (Jan. 19, 2009). Their complaint alleges that it was Bisalen "who actually released the funds despite knowledge of the court orders and the writ of garnishment." Id. The plaintiffs acknowledge that they are also suing Bisalen in his individual capacity, but assert that since the biggest issue in the case may turn around knowledge, they contend that the substitution may "allow the current Director of Administrative Services to deny liability on the basis of lack of knowledge or lack of actions taken." Id. They further contend that since this is a civil rights action with "allegations of wrongdoing specifically against Wilipinat Bisalen, [it] requires he stay in the action in his official capacity." Id.

II. Analysis

 "A public officer who sues or is sued in an official capacity may be described as a party by the officer's official title rather than by name . . . ." FSM Civ. R. 25(d)(2). The plaintiffs have, however, elected to name a defendant that they are trying to sue in his official capacity rather than just describing him by his title.

 Since the FSM drew from United States counterparts both the civil rights statute the plaintiffs are suing under, see Chuuk v. Davis, 13 FSM Intrm. 178, 185-86 (App. 2005), and the Rules of Civil Procedure, including Rule 25(d), see Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 589 n.1 (App. 2008), it is appropriate to consult U.S. sources in determining whether the plaintiffs may sue Bisalen in his former official capacity or whether Rule 25(d)(1) automatically substituted Jesse Mori in his stead.

 Since Bisalen no longer holds the office of Director of Administrative Services, the plaintiffs cannot be trying to sue him in his official capacity as Director of Administrative Services, but are actually trying to sue him in his former official capacity as Director of Administrative Services. But

 A claim against a government officer in his official capacity is, and should be treated as, a claim against the entity that employs the officer . . . . A claim against a person "in his former official capacity" has no meaning. If the claimant seeks to hold the offender personally responsible, the claim is against the person in his individual capacity. A claim against an offender in his official capacity is, and should be treated as, a claim against the entity that employs the officer.

Mathie v. Fries, 121 F.3d 808, 818 (2d Cir. 1997) (citing Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 3104-05, 87 L. Ed. 2d 114, 121 (1985)). Thus, a "suit against an individual in his or her 'former official capacity' is nonsensical." Kmetz v. State Historical Soc'y of Wis., 300 F. Supp. 2d 780, 786 (W.D. Wis. 2003) (defendant sued in personal and former official capacity was dismissed in his former official capacity). In Brown v. County of Cook, 549 F. Supp. 2d 1026, 1027 n.1 (N.D. Ill. 2008), the plaintiff sued the former Cook County sheriff in his personal and former official capacity and the court dismissed the suit against him in his "former official capacity" but made no Rule 25(d)(1) order of substitution because his successor in office had also been named as a defendant in his official capacity. In Williams v. Goldsmith, 4 F. Supp. 2d 1112, 1121-22 (M.D. Ala. 1998), another civil rights case, the court concluded that since "claims against officers in their official capacity are 'functionally equivalent' to claims against the entity they represent," to allow claims against a former sheriff and deputy in their official capacities "would be to allow them to be sued as representatives of an entity that they no longer represent," which was inconsistent with the purpose of official capacity suits and Civil Procedure Rule 25(d). Other civil rights cases are similar. See, e.g., Figueroa v. Gates, 120 F. Supp. 2d 917, 920 (C.D. Cal. 2000) (former chief of police cannot be sued in his official capacity); Lewis v. Delaware Dep't of Public Educ., 986 F. Supp. 848, 854 (D. Del. 1997) (former Secretary of Education cannot be sued in his official capacity, but new Secretary substituted for him).

 The plaintiffs apparently fear that it would not be possible to hold public officials and institutions accountable for their actions if they could avoid relief by having the offending party leave office. They cite Plais v. Panuelo, 5 FSM Intrm. 179, 206 (Pon. 1991) for the proposition that what is needed to show governmental liability for civil rights is based on the actions of a policy-making official. They speculate that, if, in Panuelo, a new chief of corrections, the policy-making official whose actions triggered civil rights liability, had been substituted in his place then the governmental entity could not have been held liable.

 Under the plaintiffs' reasoning carried to its logical end, if the person being suing in his official capacity died, the suit would then have to be maintained against a dead person "in his official capacity." And conversely, a person could also then sue in his "former official capacity." This is nonsense. The "[c]apacity to be sued is usually correlative of the capacity to sue . . . ." 59 Am. Jur. 2d Parties § 42, at 440 n.97 (1987). A person cannot be sued in his "former official capacity" anymore than a person can sue in his or her "former official capacity" because that person no longer represents the entity that once employed him or her.

 The plaintiffs fundamentally misunderstand the nature of suits against persons in their official capacity. "[A] suit against an offender in his or her official capacity is treated as a claim against the entity that employs that officer. A public official that leaves office may still be liable for money damages in his or her personal capacity." Kmetz, 300 F. Supp. 2d at 786. Thus, an official capacity claim against a former official is meaningless unless it continues as a claim against that person's successor in office in the successor's official capacity. The office continues and is responsible for, and is presumed to have knowledge of, its earlier acts. In fact, as noted above, under Rule 25(d)(2), neither the predecessor nor the successor public official has to be named  the plaintiffs may just describe the title or public office being sued. It is the actions of the policy-maker's office, regardless of who is currently occupying that office or who later holds that office, that creates governmental liability.

 When a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party . . . .

FSM Civ. R. 25(d)(1). The court therefore concludes that Jesse Mori, in his official capacity, must be considered substituted for Bisalen "in his official capacity" since the rule makes that substitution automatic. Bisalen, of course, remains as a party-defendant in his personal capacity and may potentially be held personally liable.

III. Summary

 Accordingly, Jesse Mori in his official capacity as Director of Administrative Services is automatically substituted in place of Wilipinat Bisalen in his official capacity by operation of Civil Procedure Rule 25(d)(1). This action shall proceed against defendants Wilipinat Bisalen, in his individual capacity, State of Chuuk, and Jesse Mori, in his official capacity as Director of Administrative Services. The parties' future filings shall reflect this.

IV. Scheduling Order

 The defendant State of Chuuk and defendant Director of Administrative Services have answered the plaintiffs' complaint, and a default has been entered against defendant Wilipinat Bisalen in his personal capacity. This case is therefore at issue and the following schedule is hereby set: 1) the parties shall make all their discovery requests by April 15, 2009; 2) all discovery shall be completed by May 11, 2009; 3) all pretrial motions shall be filed by June 12, 2009; and 4) a date for hearing, if needed, pretrial motions will be set after the motions have been filed.

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