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Waddy v. Board of Public Utilities

United States District Court, D. Kansas
Aug 7, 2002
Civil Action No. 01-2178-CM (D. Kan. Aug. 7, 2002)

Summary

dismissing Title VII case against Board because it is not capable of being sued independently of the City.

Summary of this case from Coleman v. Kansas City Board of Public Utilities

Opinion

Civil Action No. 01-2178-CM

August 7, 2002


MEMORANDUM AND ORDER


Plaintiff in this case has sued defendant Board of Public Utilities (BPU) alleging employment discrimination. This matter is before the court on defendant's Motion to Dismiss (Doc. 11).

Timeliness of Plaintiff's Response

Defendant filed the instant motion on December 19, 2001. Plaintiff failed to timely respond. On February 21, 2002, the court directed plaintiff to show cause, in writing, on or before March 4, 2002, why defendant's motion should not be granted. The court further directed plaintiff to file a response to defendant's motion on or before March 4, 2002. Plaintiff timely filed a response, but filed nothing in response to the court's order to show cause. Plaintiff has therefore failed to demonstrate good cause or excusable neglect for filing his response out of time. Accordingly, the court considers defendant's motion as uncontested. Defendant's motion to dismiss is granted.

Merits of Defendant's Motion to Dismiss

Even if the court considers defendant's motion on the merits, the court determines that dismissal is appropriate. Defendant contends that this case should be dismissed because it is not a party that may sue or be sued. To determine this issue, the court first turns to Federal Rule of Civil Procedure 17(b), which states in pertinent part:

Capacity to Sue or be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except. . . .

Fed.R.Civ.P. 17(b). Thus, the court will look to Kansas law in considering whether the BPU has the capacity to be sued in these circumstances.

The BPU was created by Kansas legislative enactment, which provides in pertinent part, "In each city of the first class . . . which now or hereafter owns and operates a municipal waterworks plant and a municipal electric-light plant, there shall be an administrative agency known as the board of public utilities of such city. . . ." Kan. Stat. Ann. § 13-1220 (emphasis added). The powers and duties of the BPU, including the ability to sue and be sued, are defined by Kan. Stat. Ann. § 13-1223, which states in relevant part, "The board may sue and be sued but only in the name of and on behalf of the city except it shall have no standing in any court as a party plaintiff in any litigation against the city." Kansas courts have held that the BPU is merely an agency of the city. Cross v. City of Kan. City , 230 Kan. 545, 549, 638 P.2d 933, 937 (1982). As such, "[a]bsent authority expressly given by statute or ordinance, an agency of a city does not have the capacity to sue or be sued as a separate entity; the city is a necessary and indispensable party to any action filed either by or against the agency." Murphy v. City of Topeka , 6 Kan. App. 2d 488, 491, 630 P.2d 186, 190 (1981). In this case, there is no such express authority given; rather, § 13-1223 explicitly provides that the BPU does not have the capacity to be sued as a separate entity.

Plaintiff argues that the court should look only to whether the BPU meets the definition of a "person" under Title VII. Plaintiff relies on the 1972 amendment to Title VII, which changed the definition of a "person" to include "governments, governmental agencies, [and] political subdivisions." 42 U.S.C. § 2000e. However, nothing in that statute nor any case law supports the proposition that a plaintiff may institute a lawsuit against a local government agency that lacks the legal capacity to be sued. To the contrary, in Mason v. Twenty-Sixth Judicial District of Kansas, the court dismissed a Title VII claim against the Judicial District of Kansas, stating:

The court finds, however, after a review of the statutory authority, that in the absence of specific statutory language granting the judiciary or the Judicial District of Kansas with the capacity to sue or be sued, it is not capable of being sued. The court finds that plaintiff should have brought this action against the State of Kansas.
670 F. Supp. 1528, 1535 (D.Kan. 1987); see also Stambaugh v. Kan. Dep't of Corr., 844 F. Supp. 1431, 1434 (D.Kan. 1994) (granting leave to amend Title VII complaint to add State of Kansas where plaintiff had named only Kansas Department of Corrections, which was an agency lacking the capacity to sue or be sued).

In sum, the court finds that the BPU is an administrative agency of the city and has not been conferred with the capacity to sue or be sued. Because plaintiff has failed to name the city, which is a necessary and indispensable party in these circumstances, the court grants defendant's motion to dismiss.

IT IS THEREFORE ORDERED that defendant's Motion to Dismiss (Doc. 11) is granted. This case is hereby dismissed.


Summaries of

Waddy v. Board of Public Utilities

United States District Court, D. Kansas
Aug 7, 2002
Civil Action No. 01-2178-CM (D. Kan. Aug. 7, 2002)

dismissing Title VII case against Board because it is not capable of being sued independently of the City.

Summary of this case from Coleman v. Kansas City Board of Public Utilities
Case details for

Waddy v. Board of Public Utilities

Case Details

Full title:JAMES WADDY, Plaintiff, v. THE BOARD OF PUBLIC UTILITIES, Defendant

Court:United States District Court, D. Kansas

Date published: Aug 7, 2002

Citations

Civil Action No. 01-2178-CM (D. Kan. Aug. 7, 2002)

Citing Cases

Coleman v. Kansas City Board of Public Utilities

Accordingly, the Court finds that the Board of Public Utilities lacks the capacity to be sued and must be…