Opinion
NO. CIV. S-01-2407 WBS GGH.
June 4, 2007
ORDER
By minute order on May 8, 2007, this court granted plaintiffs' motion to substitute John Chiang, the current Controller of California, for Steve Westly, the former Controller of California, in both his official and individual capacities.
Federal Rule of Civil Procedure 25(d) provides that "[w]hen a public officer is a party to an action in his 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." Fed.R.Civ.P. 25(d). Therefore, John Chiang is properly substituted for Steve Westly in his official capacity.
Steve Westly was named as a defendant in both his official and individual capacities. Therefore, he remains a defendant in his individual capacity.
However, Rule 25(d) is not the proper mechanism to add John Chiang in his individual capacity. To accomplish that, plaintiffs must make a motion pursuant to Federal Rule of Civil Procedure 21. See Jackson v. Hayakawa, 682 F.2d 1344, 1348 (9th Cir. 1982) (official before the court in his official capacity must be effectively served with a complaint suing him in his individual capacity in order for him to be joined to the action as such).
IT IS THEREFORE ORDERED that:
(1) the court's minute order of May 8, 2007, is hereby WITHDRAWN;
(2) plaintiffs' motion to substitute John Chiang in his official capacity be, and the same hereby is, GRANTED;
(3) plaintiffs' motion to substitute John Chiang in his individual capacity be, and the same hereby is, DENIED.