targeted by the ministry of public school board mates individual members because it is protected activities is without merit what we've had is a series of technical dismissals dismissals for technical reasons and you know for that reason  a lot of time talking about procedure not really about the meat and bones case i mean that's why did you not bring your nine hundred and eighty three st amendment action in the state court i was in his lawyer that his lawyer at the time indicated to him after the fact that he had personal friendships with the individual members of the school board which is probably why he didn't look more and running individual as he claims that's not in that you know a problem any kind of pick up a case after one council you're left with what's left that's that's why  can i ask you about the individual capacity claims which is it seems to me if i look at your stake or complain and the state motion to dismiss you repeatedly say plaintiff argues  acting and i'm quoting outside the scope of his authority so why aren't those why isn't that the tell tale language of individual capacity and then in the district court or the state trial court opinion i'm sorry the state trial court says you were arguing both he was acting within and outside of his scope of authority well i think by the end the reason it dismissed was because of michigan's thought what the state trial court said and you can correct me if i'm wrong is that he was acting in here is you argue or your colleague argued that he is acting outside the  complaint saying he was acting outside the scope of his authority and on his own behalf at times and so how do we deal with that i mean if you file that complaint the state court doesn't rule on it you can file a motion for reconsideration but we have to assume once there's final judgment on a complaint that appears to us to make individual capacity planes what i think is the most relevant portion of bat is in their argument they argue backs the claim had been distilled down significantly from what was written in the plant it was actually ruled on the summary judgment was argued by the summary judgment is that the claim was against toman acting as that as an official not as an individual they argue and under we usually applied to get like what's good for the goose is good for the gander why are you similarly a stopped since in your complaint you claimed he acted in his individual capacity and you argued that to the trial court won't because of it because the summ very serious or related transactions but someone claims that you could take that one transaction and split the claims up in bring suit for in the thing for a can i ask real quick are the board members and why don't they have a substantial identity of interests with maps now because  question here your honor is very simply had cotton won his judgement against ronald stillman as an official could he have that enforced the judgement against the individual or members as individuals and i think the answer to that is clearly no you know we're not going to jump eight judgment against the man's office to securing means of judgment against individual officers in these circumstances so i think that certainly defeats the identity of interests as well you know but with michigan litigation is important protracted litigation when an individual chooses to bring certain claims and not to bring others loses on those claims and then chooses to repackage them in a different manner is not something that is established in michigan or as it relates to the rd issue in this case that the matter in the nd case was or could have been resolved michigan applies the transactional test and under the transactional approach here we look at it claim and it's viewed in and birds it's viewed in its factual terms so if we look at this case question about the board members how is there a substantial identity of interest between maps and the board members in their individual capacity cantorial ogling with this one sure so as it relates to maps and the individual board members we've argued that based upon michigan established for us that they were agents who had their principal ministerial public schools or the employee employer relationship as to pretty note with regard to the substantially duty of interests if we looked a while quote on that case and we've cited to the final sentence within the quote that was previously cited by the appellants counsel in this case and it essentially states that if the interest were so intertwined so that the individual had a personal interest in the litigation then it works to activate privity in this case so as it relates to the why case that's a case that involved the release after individual plaintiffs sued it well they sued in their official capacity as as corporate representatives against an insurance identity of interests so if you look at the reasoning within while following that what the court did is it said that these individuals had the ability to control the litigation to drive the litigation they had interests in the outcome of the proceedings in the same is true as to the ministerial public school school board members who don't want on the supreme court and while following said it was very clear that they were asserting in protecting their individual rights in the st two whereas here no one's asserting and protecting the individual rights of the board members actually to look at here in your honor to the contrary in based upon the reasoning within while falling in as you laid out ministerial public schools d and the board members are connected through fiduciary relationship ministerial public schools cannot act without the action of the board members in fact in the st suit and in the nd suit it's the actions in dismissing or terminating mr collins employment that was ratified by the board members at issue let me ask you the flip side this real quick and then i'll be quiet which is if the plaintiff would have won against maps you're saying that would have for clues of a subsequent once you don't sorry it be if you had to apologize i guess i don't understand the question so just flip this case around eighty one what's the effect on math he had four members i'm sorry sure if he had won in the lower court that doesn't necessarily entitle him to damages against the individual board members because he didn't file a lawsuit against them however as to privity and especially based upon the reasoning within the wild farm case these individual board members and we can't control what the plaintiff does and how the plaintiff brings their claims or d how they choose to litigate their case however these individual board members did have a substantial interest in defending the decisions that they made in terminating mr cotton in keeping their jobs if they were wrong in controlling litigation it's true that i personally sat with these individual board members during the two one thousand and sixteen dollars litigation in order to counsel them on the outcome of the litigation  lose the most in the initial lawsuit and fear the board members would have lost nothing in the initial lawsuit they stood to lose potentially their positions as board members they stood to  lose so did their individual if they cared so much they didn't intervene if they were going to lose their board member positions it well your honor they were members to the litigation as ministerial public schools cannot act without the actions of its board members i guess the question would it if the year if if your individual if the board members had been sued and had lost the case when the school board i mean when the school system have damaged your honor i believe so but i can't speak to that specifically because they were agency or employees of the school district at the time that the previous lawsuit was initiated from just because anything in the records i have this current federal suit about whether the school system does or does not indemnify it or it i don't know that it's in the record but it does indemnify its board members to the extent that they are it's produce yury representatives soon that they fought i mean you're well the plaintiff was fired i guess because of their official action right that's correct your honor if you look at the pleadings within both the lower court action and this action while you may say that their suit in their individual capacity it's all relating to its stated rate in the plaintiff's complaint that this or the allegations relate to defend its actions towards plaintiff during the course of his employment in these individuals are named as board members throughout the complaint with this with a slight i guess half a sentence saying that their it their suit in their individual capacity but there's nothing in here that says that anything that they did was outside of the scope of their authority and there's no facts to substantiate it within the complaint but they wouldn't that be a ground for a motion to dismiss perhaps a separate ground your honor but we chose to kentucky it's not controlling law in this case specifically you know that's that's within error as stated within our briefing this court has to rely upon michigan case law for its determination as to rescue the kind of principles and if we look at the mitchell case it's based upon a case that came from kentucky and it relied on four elements as opposed to three elements for us to be caught up in as to prove that he they applied what's called the course of proceedings test as opposed to the test that's applied in michigan cases it's frankly not political in this case nothing more your honour's i don't have much further other than to say that i don't know that there's a dispute that there was a working functional relationship between ministerial public schools d and all of the name defendants in this case it's an unemployment case for the for the definition of agency and they have this other it's a dare case bad is a lawsuit by multiple school districts against the state of michigan alleging constitutional violation that violate you know what they don't really give us any case law that points to their faces that because there's an agency relationship is pretty and therefore rescued out and you know however you know striking says that if there's going to be arrested if the person taking advantage of it has to have been bound by  counsel seems to indicate what all of this rule of different passes comes to is it boils down to the restatement of just it's it's a concept you know basic to wa that you have a party is in one capacity it's not rescue to count against later suit against them and  right on because it's again individual claims and looking at michigan we have quite a circumstance and wes the individuals have you know a similar interest in the outcome of the litigation which was not present here