Forthem, LLC et al v. City of Clever, Missouri et al

Filing 17

ORDER granting in part and denying in part 7 motion to substitute party. See Order for details. Signed on 8/15/12 by Magistrate Judge John T. Maughmer. (Alexander, Pam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
Forthem, LLC, et al.,

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Plaintiffs,
v.
City of Clever, Missouri, et al.,
Defendants.

Civil Action Number
12-04047-CV-S-JTM

ORDER
On February 12, 2012, plaintiffs Forthem, LLC, Southwest Development, Inc., AreaWide Construction, Inc., K. Randal Homes, LLC and C3 Investments, LLC, initiated the present
lawsuit regarding sewer hook-up fees charged to the plaintiffs after they constructed duplexes in
Clever, Missouri. The lawsuit seeks a declaratory judgment as well as damages under 42 U.S.C.
§ 1983. The plaintiffs named as defendants the City of Clever as well as the then-Mayor (Trisha
Elam) and the then-Board of Aldermen (Jarred King, Scott Hackworth, Wade Pearce, Brandon
Gilmore, Chris Montgomery, and Scott Hacksworth). All of the individuals were sued in both
their official capacities and individual capacities.
Apparently as a result of recent municipal elections, the City of Clever now has a new
Mayor (Jarred King) and some new Aldermen (Kara Kauffman, Sondra Stevens, and Josie
McFall1). Pursuant to FED. R. CIV. P. 25, the defendants seek substitution. The motion is
granted insofar as the plaintiffs’ lawsuit asserts claims against the Mayor and Board of Aldermen
in their official capacities. Indeed, such substitution has already occurred:

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Replacing Mr. King, Mr. Hackworth, and Mr. Montgomery.

An action does not abate when a public officer who is a party in an
official capacity dies, resigns, or otherwise ceases to hold office
while the action is pending. The officer's successor is
automatically substituted as a party. Later proceedings should be in
the substituted party's name, but any misnomer not affecting the
parties' substantial rights must be disregarded. The court may order
substitution at any time, but the absence of such an order does not
affect the substitution.
FED. R. CIV. P. 25(d). The defendants offer no legal rationale for substituting the individual
capacity claims and, thus, the Court will not substitute those previously plead claims.
The Court would make one additional observation. The parties should seriously examine
the lawsuit as presently constituted and plead. Even with the substituted parties, the PLAINTIFFS’
PETITION seemingly contains superfluous and improper claims. For example, a Section 1983
claim against a city official in his or her official capacity is utterly redundant when a lawsuit also
contains a Section 1983 claim against the City itself. Wilson v. Spain, 209 F.3d 713, 717 (8th
Cir. 2000); Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 (8th Cir.1999). In
addition, the Court questions the legal viability of seeking a declaratory judgment under these
facts against individuals in their individual capacities. The plaintiffs might be well advised to
consider amending their pleading.

/s/ John T. Maughmer

John T. Maughmer
United States Magistrate Judge

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