Brown v. Fifth Jud'l Dist. Drug Task Force

• Decision Date: 31 May 2001
• Docket Number: No. 00-3834EA,00-3834EA
• Citation: Brown v. Fifth Jud'l Dist. Drug Task Force, 255 F.3d 475 (8th Cir. 2001)
• Parties: (8th Cir. 2001) STEVE BROWN, APPELLANT, v. FIFTH JUDICIAL DISTRICT DRUG TASK FORCE, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 475

255 F.3d 475 (8th Cir. 2001)

STEVE BROWN, APPELLANT, v. FIFTH JUDICIAL DISTRICT DRUG TASK FORCE, APPELLEE.

No. 00-3834EA

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 31, 2001

Filed: July 2, 2001

On Appeal from the United States District Court for the Eastern District of Arkansas.

Before Morris Sheppard Arnold, Richard S. Arnold, and Fagg, Circuit Judges.

Richard S. Arnold, Circuit Judge

Steve Brown, the "coordinator" for the Fifth Judicial District Drug Task Force, brought this case under the Fair Labor Standards Act, claiming that the Task Force, his employer, had failed to pay him for overtime. The complaint alleged the following about the defendant:

The Defendant is a multi-governmental unit organized under the laws of the State of Arkansas as an interlocal cooperative consisting of Pope County, Arkansas, Franklin County, Arkansas, and Johnson County, Arkansas, together with the Cities of Russellville and Clarksville.

Complaint ¶ 3, Joint Appendix (J. A.) 1. The defendant filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that it is not a legal entity capable of being sued. The plaintiff did not respond to this motion. The District Court¹ granted the motion and dismissed the complaint. The plaintiff appeals. None of the arguments asserted by the plaintiff on appeal was made below. Accordingly, our review is for plain error. We hold that there was no plain error (if error there was at all), and affirm.

The outcome of this case depends on the meaning of Fed. R. Civ. P. 17(b), which provides, in pertinent part, as follows:

Capacity to Sue or be Sued . . . [C]apacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States . . ..

The District Court based its holding on the first part of the rule:

Defendant argues, and plaintiff does not dispute, that it is neither a natural nor an artificial person with a separate legal existence and it has not been granted statutory authority to sue or be sued; rather, it is an unincorporated, intergovernmental, multijurisdictional task force established to investigate and prosecute drug offenses in several counties together with the cities of Russellville and Clarksville.

Steve Brown v. Fifth Judicial District Drug Task Force, No. 4:00-CV-00647-SWW (E.D. Ark., Oct. 12, 2000) (order).

On appeal, the plaintiff does not contest the reasoning of the District Court, as far as it went. He does assert that the Fifth Judicial District Drug Task Force was created under an Arkansas statute, Ark. Code Ann. § 25-20-101 et seq., the Interlocal Cooperation Act. The complaint did not so allege; neither did the plaintiff at any time cite this statute in the District Court. The defendant, however, does not appear to dispute that it was in fact organized under the law cited, so we proceed under that assumption. The difficulty, however, from the plaintiff's point of view is that the statute itself leaves it open to the governmental units who decide on joint action to establish a separate legal entity, or not, to conduct the joint or cooperative undertaking according as their agreement may provide. The record does not contain the text of this agreement. Indeed, the record is sparse, to say the least. It contains only four documents, the complaint, the defendant's motion to dismiss, the defendant's brief in support of the motion to dismiss, and the order of the District Court dismissing the complaint. We have to believe that if the agreement among these three counties and two cities in fact did establish a separate legal entity, the plaintiff would have brought this fact to the attention of the District Court, or, in any event, of this Court. This has not occurred.

Instead, the plaintiff relies upon paragraph (1) of Rule 17(b). The defendant Task Force, it is argued, is an "unincorporated association, which has no such capacity by the law of such state" but "may sue or be sued in its common name for the purpose of enforcing . . . against it a substantive right existing under . . . laws of the United States . . .." This case arises under the Fair Labor Standards Act, so a portion of this provision is satisfied. But is the Task Force a "unincorporated association," as that phrase is used in the Rule? In literal terms, it is: it is not incorporated, and it is a grouping of governmental units for a common purpose, certainly within the outer limits of the ordinary meaning of the word "association."

So far, the plaintiff's theory is plausible. But is there "plain" error? United States v. Olano, 507 U.S. 725, 734 (1993), defines plain error as follows:

The second limitation on appellate authority under Rule 52(b) is that the error be "plain." "Plain" is synonymous with "clear" or, equivalently, "obvious." . . . At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless...