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Can an initial civil action be amended to include names
in an individual (in contrast to official) capacity?
TIA...
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On 19 Mar 2005, "z" <z@y.x.invalid> wrote:
Can an initial civil action be amended to include names
in an individual (in contrast to official) capacity?
Usually, but not always. Depending on at what stage of the lawsuit,
the parties can stipulate to this (have you asked?) or, absent a
stipulation, an appropriate motion can usually be made; or, perhaps,
it may not be too late to serve a supplemental summons and add a
party; etc., etc., ec. Bu whether, when, how, etc., all depend on
knowing more of the particulars. Note also that you do not report why
the person in question would be sought to be added in an individual
capacity and yet sometimes there is an assumption that they should be
(so added) which is not necessarily correct. Depending on the facts
of the case. Which you don't mention.
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A situation in which most of the individual respondents are
professors at a university; the amendment would become
the first amended verified petition; and the reason being
that the answer would otherwise not have to be verified
by any of the individual respondents, since they are at
present named only in their capacities as university professors.
The motivation for the change being to expedite
the determination of facts in he-said-she-said situations
mentioned in the verified petition,
and ultimately, the interests of absolute justice in the case
(not that college profs would ever, ever *lie*, mind you...).
The petition filed but the profs not yet served
as of the moment.
I ***sincerely*** doubt that the respondents would agree
to stipulate that they agree to be as if named in
their individual capacities, under the adversarial circumstances.
However, I *imagine* they would appreciate a "heads-up"
about an imminent action of the petitioner which would
if followed through force them to verify their answers,
and so I *imagine* that they would then use the "heads-up*
to file their response as soon as possible, which would
then preclude the filing of an asynchronous first amended petition...
On 19 Mar 2005, "z" <z@y.x.invalid> wrote:
Usually, but not always. Depending on at what stage of the lawsuit,
the parties can stipulate to this (have you asked?) or, absent a
stipulation, an appropriate motion can usually be made; or, perhaps,
it may not be too late to serve a supplemental summons and add a
party; etc., etc., ec. Bu whether, when, how, etc., all depend on
knowing more of the particulars. Note also that you do not report why
the person in question would be sought to be added in an individual
capacity and yet sometimes there is an assumption that they should be
(so added) which is not necessarily correct. Depending on the facts
of the case. Which you don't mention.
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On 20 Mar 2005 17:45:30 GMT, "z" <z@y.x.invalid> wrote:
Re: amend action to name individual capacity?
A situation in which most of the individual respondents are
professors at a university; the amendment would become
the first amended verified petition; and the reason being
that the answer would otherwise not have to be verified
by any of the individual respondents, since they are at
present named only in their capacities as university professors.
The motivation for the change being to expedite
the determination of facts in he-said-she-said situations
mentioned in the verified petition,
and ultimately, the interests of absolute justice in the case
(not that college profs would ever, ever *lie*, mind you...).
The petition filed but the profs not yet served
as of the moment.
I ***sincerely*** doubt that the respondents would agree
to stipulate that they agree to be as if named in
their individual capacities, under the adversarial circumstances.
However, I *imagine* they would appreciate a "heads-up"
about an imminent action of the petitioner which would
if followed through force them to verify their answers,
and so I *imagine* that they would then use the "heads-up*
to file their response as soon as possible, which would
then preclude the filing of an asynchronous first amended petition...
Your use of the word "petition" (rather than "complaint") to
characterize your operative pleading might suggest that you are suing
under color of some law that mandates use of that procedures not
applicable to other kinds of lawsuits in your jurisdiction and, if so,
you do not answer what that statute also says about your ability (in a
way that is credible) to sue the professors in question individually.
Alternatively, and, as is commonly said, because anyone can sue anyone
else for anything (although in ways that might not be credible), if
you do have some good faith reason to believe and also credibly to
claim that the professors in question have wronged you in a manner
that is civilly redressable and that you probably will not be able to
obtain full relief in the lawsuit to which you refer if you do not sue
them individually and if it is not too late in violation of whatever
is the applicable statute of limitations to do so (though you do not
provide any of this information in your postings in this thread),
then the question you raise and can answer for youself is:
Why not just sue them invididually (and, if you later want, ask them
and whoever are the other already sued and served parties to stipulate
to consolidate the lawsuits or, absent such a stipulation, make an
appropriate motion for such relief)?
Unless, insofar as analogous to your lawsuit, you are someone who
believes that the quickest way to get from Los Angeles to New York is
to travel west (although if you do this and also have enough dollars
and food and fuel, etc., eventually you might arrive at that
destination) - and although, of course, in this respect, too, one
cannot meaningfully judge without knowing more of the facts of your
claims and the nature of your lawsuit - some might wonder whether what
you give as "the reason" (even if it just a predominant "reason") for
doing what you ask is very likely to be at best ridiculous, among
numerous other reasons, because (i) you do not say that and, if so,
how you have drafted your "petition" in a way that would prevent a
denial of your operative allegations that was "verified" and yet not
be helpful to you in the manner you apparently fantasize and (ii)
there are any number of other ways to obtain relevant persons'
"verified" statements (i.e., statements made under oath) addressing
their version of the truth or falsity of whatever are your allegations
of fact.
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Wow.
The petition is a verified petition for writ of (administrative) mandate.
It is not a lawsuit in the sense of a tort or complaint (I think,
if I have the terminology right-- I am not a lawyer).
My contention is that comments and emails from the prof(s) to me
during the class violated my first amendment, fourteenth amendment,
and california state citizen rights, and the denial of my grade complaint,
grievance, and appeal to the university ignored almost all my allegations
and
all of my legal arguments in the complaint to the university-- along with
some due process violations. By filing the complaint with the university,
I simply followed their prescription to exhaust administrative remedy
before appealing to the courts. I filed the petition within 60 days
of receiving the letter from the university denying my complaint.
The verified petition references 20 or so attachments in an accompanying
declaration of the petitioner.
Please don't blame me for the arcane legalities of the court system.
I am not a lawyer (although I have been known to tell a lawyer
joke or two).
As for suing the profs individually, that involves monetary damages,
which is a different issue (and, thanks in advance for sticking to the topic
at hand). The profs are in my opinion required to be named because
they are in my opinion substantial parties of interest along with
of course the university itself. One or two parties I don't really care
about much at this time but they are administrators and thus
are prudently named as substantial parties of interest as well.
Also, suing the profs individually does not stop the university
from violating other students' freedom of speech through other
profs, employees, administrators, agents, and whatnot.
My hearing is scheduled for next month,
so it's not clear that your contention that my allegations
are likely at best to be ridiculous are of course your every right
to hold, but won't matter (would you like to file an amicus brief?).
I'm just trying at this point to establish the facts in the most
expedient manner pursuant to justice. Also I don't reflexively regard
violations of the first and fourteenth amendment as ridiculous matters.
Is that par for the course in courts of law these days?
On 20 Mar 2005 17:45:30 GMT, "z" <z@y.x.invalid> wrote:
Your use of the word "petition" (rather than "complaint") to
characterize your operative pleading might suggest that you are suing
under color of some law that mandates use of that procedures not
applicable to other kinds of lawsuits in your jurisdiction and, if so,
you do not answer what that statute also says about your ability (in a
way that is credible) to sue the professors in question individually.
Alternatively, and, as is commonly said, because anyone can sue anyone
else for anything (although in ways that might not be credible), if
you do have some good faith reason to believe and also credibly to
claim that the professors in question have wronged you in a manner
that is civilly redressable and that you probably will not be able to
obtain full relief in the lawsuit to which you refer if you do not sue
them individually and if it is not too late in violation of whatever
is the applicable statute of limitations to do so (though you do not
provide any of this information in your postings in this thread),
then the question you raise and can answer for youself is:
Why not just sue them invididually (and, if you later want, ask them
and whoever are the other already sued and served parties to stipulate
to consolidate the lawsuits or, absent such a stipulation, make an
appropriate motion for such relief)?
Unless, insofar as analogous to your lawsuit, you are someone who
believes that the quickest way to get from Los Angeles to New York is
to travel west (although if you do this and also have enough dollars
and food and fuel, etc., eventually you might arrive at that
destination) - and although, of course, in this respect, too, one
cannot meaningfully judge without knowing more of the facts of your
claims and the nature of your lawsuit - some might wonder whether what
you give as "the reason" (even if it just a predominant "reason") for
doing what you ask is very likely to be at best ridiculous, among
numerous other reasons, because (i) you do not say that and, if so,
how you have drafted your "petition" in a way that would prevent a
denial of your operative allegations that was "verified" and yet not
be helpful to you in the manner you apparently fantasize and (ii)
there are any number of other ways to obtain relevant persons'
"verified" statements (i.e., statements made under oath) addressing
their version of the truth or falsity of whatever are your allegations
of fact.
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