United States Court of Appeals

For the Eighth Circuit

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No. 11-3626

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Janet Lundquist

lllllllllllllllllllll Plaintiff - Appellant

v.

University of South Dakota Sanford School of Medicine

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the District of South Dakota - Sioux Falls

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 Submitted: October 15, 2012

 Filed: February 5, 2013 

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Before LOKEN, SMITH, and BENTON, Circuit Judges.

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LOKEN, Circuit Judge.

Janet Lundquist commenced this action alleging that her former employer, the

University of South Dakota Sanford School of Medicine (the “School of Medicine”),

violated the Americans with Disabilities Act (ADA) by refusing to accommodate her

mental and physical disabilities and by responding to her requests for accommodation

with hostile actions that caused her constructive discharge. See 42 U.S.C. §§ 12112,
12203. After the close of discovery and a hearing, the district court1

 granted the

School of Medicine summary judgment on the ground that it lacked the capacity to be

sued under state law and Rule 17(b) of the Federal Rules of Civil Procedure. 

Alternatively, the court concluded that summary judgment was warranted because

Lundquist had failed to present sufficient evidence of unlawful discrimination or

retaliation. Lundquist appeals. Reviewing the grant of summary judgment de novo,

we agree the School of Medicine lacks the capacity to be sued and therefore affirm

without reaching the merits of Lundquist’s ADA claims. 

Rule 17(b) defines when a party has the capacity to sue or be sued in federal

court. Unlike the doctrines of standing and real-party-in-interest, “capacity is

conceived to be a party’s personal right to litigate.” 6A Wright, Miller & Kane,

Federal Practice and Procedure § 1542 (3d ed. 2010). The capacity of a unit of state

or local government that is incorporated, like that of a private corporation, is

determined “by the law under which it was organized.” Rule 17(b)(2); see 6A Wright,

Miller & Kane at § 1562; Campbell v. Davol, Inc., 620 F.3d 887, 895 n.6 (8th Cir.

2010). The capacity of an unincorporated unit of government is determined, in most

cases, “by the law of the state where the court is located.” Rule 17(b)(3). 

The South Dakota Constitution provides that the legislature “shall direct by law

in what manner and in what courts suits may be brought against the state.” S.D.

Const. Art. III § 27. The legislature by statute created the University of South Dakota,

S.D. Codified Laws § 13-57-1, and later its School of Medicine, § 13-57-3.1. 

However, the University was not given the power to sue and be sued. Rather, the

statutes created a nine-member Board of Regents that was explicitly granted “power

to sue and be sued,” § 13-49-11, and placed the University “under the control of the

Board of Regents,” § 13-57-1. Thus, the district court held that it is the Board of

1

The Honorable Roberto A. Lange, United States District Judge for the District

of South Dakota.

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Regents, not the University or its School of Medicine, that has the personal capacity

to sue and be sued under South Dakota law. Accord Pushkin v. S.D. State Univ., No.

10-4108, 2010 WL 5089480, at *1 (D.S.D. Dec. 8, 2010). We agree. 

Following the decision in Pushkin, Lundquist commenced a separate action

against the Board of Regents and moved to consolidate the two cases. See Complaint,

Lundquist v. S.D. Bd. of Regents, No. 11-cv-04098 (D.S.D. July 13, 2011). The

district court denied the motion to consolidate and subsequently dismissed the second

action for inadequate service. As Lundquist has not appealed that ruling, the only

issue before us is the grant of summary judgment in this case. 

On appeal, Lundquist does not contest the district court’s ruling that the School

of Medicine lacks capacity to sue and be sued under South Dakota law. Instead, she

argues that her claims should not have been dismissed under Rule 17(b) because they

fall within an exception to the general rule that state law controls this issue: 

(A) a partnership or other unincorporated association with no such

capacity under that state’s law may sue or be sued in its common name

to enforce a substantive right existing under the United States

Constitution or laws . . . . 

Fed. R. Civ. P. 17(b)(3)(A). She asserts that the University “partnered” with Sanford

Health, a regional health-care system, in locating the School of Medicine on the

campus of Sanford Hospital and thus the School of Medicine is a partnership that may

be sued in its common name. The district court examined this contention, using

information from the School of Medicine’s website and other public sources because

Lundquist had conducted no discovery on the issue. The court concluded that the

School of Medicine is not, and does not hold itself out to be, a “legal partnership” with

Sanford Health, and the exception in Rule 17(b)(3)(A) therefore does not apply. 

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We need not inquire into the relationship between the School of Medicine and

Sanford Health because there is a more basic reason the exception in Rule 17(b)(3)(A)

does not apply in this case. By its express terms, for a federal action venued in South

Dakota, the exception permits a partnership or unincorporated association “with no

. . . capacity” to sue or be sued under South Dakota law to be sued in its common

name in an action to enforce federal rights, such as the ADA claims Lundquist

asserted. When state law does grant such an entity the capacity to sue or be sued, but

specifies the manner in which that capacity may be exercised, state law limitations on

the manner of exercise apply. See Arbor Hill Concerned Citizens Neighborhood

Ass’n v. City of Albany, 250 F. Supp. 2d 48, 61-62 (N.D.N.Y. 2003). That is the

situation here. The South Dakota legislature did not deny the University and its

School of Medicine the capacity to sue and be sued. Rather, the legislature mandated

that the capacity resides in the Board of Regents, the unit of government that controls

the University. Thus, the School of Medicine only has the capacity to be sued in an

action against the Board of Regents, whether that action asserts federal claims against

the School of Medicine as a stand-alone entity, or as a “partnership” with Sanford

Health.2

The judgment of the district court is affirmed.

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2

This principle is consistent with the original purpose of what is now Rule

17(b)(3)(A). The exception essentially codified the decision in United Mine Workers

v. Coronado Coal Co., 259 U.S. 344, 385-92 (1922), that a multi-national labor union

could be sued for violations of the federal antitrust laws in its common name, even

though at common law it could only be sued in the name of its four hundred thousand

members. See Fed. R. Civ. P. 17 advisory committee’s note. We also note that the

few courts to consider the issue have concluded: “Nothing in the language of Rule

[17(b)(3)(A)] or in the early case law that led to the adoption of Rule 17 . . . warrants

an extension of Rule [17(b)(3)(A)] to governmental units.” Dean v. Barber, 951 F.2d

1210, 1214 n. 4 (11th Cir. 1992). We need not decide that question.

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