A couple weeks ago the plaintiffs in this most Byzantine of cases filed “a suggestion” to the court, which evidently is a genuine type of pleading, noting that because Jeff Kepley was being sued in his official capacity and had resigned as chief of the PVEPD, Federal Rule of Civil Procedure 25(d) required that he be automatically dropped as a party to the suit and his successor, who is Mark Velez, acting chief of the PVEPD, be substituted in.
Well, on Tuesday, the City filed a response to the suggestion which, I think, claims that because FRCP 25(d) provides that Jeff Kepley was automatically substituted out and Mark Velez substituted in, the court need not do anything and therefore the suggestion “serves no purpose other than to harass Captain Velez by subjecting him to the publicity of being named as a defendant in this lawsuit” when he’s going to be removed as chief in a few weeks.
I mean, I admit I’m not a lawyer and that I only have a tenuous grasp of what’s going on in many of these papers, but this one seems particularly crazy to me. Everyone admits that Kepley is no longer a party and that Velez is now a party and that this happened automatically when Kepley resigned. Everyone admits that it doesn’t matter what the judge does about it.
So why is it wrong to bring Jeff Kepley’s resignation to the attention of the Judge? How’s he supposed to find out about it if no one tells him? Why does mentioning Mark Velez’s appearance as a defendent constitute harassment after it has already happened? Well, the answer is probably, as is often the case with these people, “who freaking knows?!” There’s a transcription, as always, after the break.
DEFENDANTS CITY OF PALOS VERDES ESTATES AND CHIEF OF POLICE JEFF KEPLEY’S RESPONSE TO PLAINTIFFS’ SUGGESTION UNDER FRCP 25(d) ON RECORD TO SUBSTITUTE OFFICAL NAMED IN HIS REPRESENTATIVE CAPACITY DUE TO RESIGNATION
TO THE HONORABLE COURT AND ALL PARTIES OF RECORD:
The City of Palos Verdes Estates and Chief of Police Jeff Kepley (collectively, the “City”) hereby respond to Plaintiffs Cory Spencer, Diana Milena Reed, and Coastal Protection Rangers’ Suggestion Under FRCP 25(d) on Record to Substitute Official Named in His Representative Capacity Due to Resignation. Federal Rules of Civil Procedure Rule 25(d) provides:
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 officers 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.
Federal Rule of Civil Procedure 25(d) automatically operates to substitute a named public officer into an action if that official dies, resigns, or otherwise ceases to hold office while the action is pending. Plaintiffs’ “suggestion” is unnecessary as the substitution is automatic.
In addition, Plaintiffs are aware that the City’s pending Motion for Summary Judgment (“Motion”) seeks, among other things, to dismiss Chief Kepley as a redundant party in the Plaintiffs’ single cause of action for Section 1983 civil rights liability against a public entity. On July 14, 2017, the City filed its Motion as to Plaintiffs’ single claim entitled 42 U.S.C. Â§ 1983 – Equal Protection on the grounds that (1) the City has no duty to protect Plaintiffs from third party criminal conduct (De Shaney v. Winnebago County Department of Social Services (1988) 489 U.S. 189) and (2) Plaintiffs cannot establish a Monell claim, which prohibits respondeat superior liability against a public entity ( Monell v. Dep 7. of Soc. Servs. (1978) 436 U.S. 658). [Dkt. 268]. In the alternative, the City provides that the proper Monell defendant is the local government entity, and not the local government officer sued in his official capacity on behalf of the local government entity. See Luke v. Abbot (1997) 954 F.Supp. 202; Kentucky v. Graham (1985) 473 U.S. 159, 167 n. 14. Plaintiffs delayed a ruling on the City’s Motion by filing a meritless Motion for Administrative Relief. [Dkt. 397]. They then filed this “suggestion” which serves no purpose other than to harass Captain Velez by subjecting him to the publicity of being named as a defendant in this lawsuit knowing that Captain Velez had no relevant involvement in the allegations set forth in the Complaint, and knowing that he will serve at the interim Chief for no more than a matter of weeks until he will be replaced. The Plaintiffs’ “suggestion” is unnecessary as the substitution is automatic and the Court need not take any action under Rule 25(d).
Dated: September 26, 2017 KUTAK ROCK LLP
By : /s/ Christopher D. Glos
Image of Mark Velez is ©2017 MichaelKohlhaas.Org and was cobbled together from this little item right here.