up” when Obama published his long form birth certificate (“LFBC”) in April 2011 “with anauthenticating letter from Fuddy.” FAC at 32. Similarly, the Plaintiffs allege that Onaka had aduty to “speak up” when the LFBC was issued.”
Id; see also
PRS at 1. These allegations aloneshow that the Defendants were sued in their official capacities, because issuing the LFBC ordetermining the authenticity of a birth certificate is an action that could only have done in anofficial capacity. Indeed, Defendants acted pursuant to statutory obligation in certifying theauthenticity and copying of the birth certificate—an official state document. Additionally, Fuddyissued her letter on official letterhead, and Onaka’s official seal was used on the certified LFBC.This pattern is sustained throughout all of Plaintiffs’ pre-November 16, 2012 pleadings: in everyone, Plaintiffs either name Defendants in their official capacities or take issue with actions thatcould only have been taken while acting in an official capacity.
Exhibit A, attached hereto.
The method of Plaintiffs’ attempted
ervice process provides still more evidence that Defendants were sued in their official capacities
Plaintiffs attempted (however unsuccessfully)to serve Defendants as government officials by submitting papers to both the Hawaii Departmentof Health and the Hawaii Attorney General.
Opp. at 28-29;
Notably, Plaintiffs also failed to raise this argument in their Opposition to the Motion to Dismiss (“Opp.”) [ECF 65],despite the clear language of Defendants’ Motion to Dismiss (“Motion”) [ECF 57] and Memorandum in Support(“Memo”) [ECF 58] reflecting the then-uncontroverted understanding that they had been sued in their officialcapacity.
While Plaintiffs attempted to distinguish cases involving individual government employees as opposed togovernmental entities, it is obvious that Plaintiffs were merely trying to distinguish this case from others where theactual governmental entity was named, rather than a government official. It is worth noting that Plaintiffs’ Opp. (at 2-3) contains still more misrepresentations of non-binding law to support the proposition that governmental officials canbe civilly liable under RICO in their official capacities, with parentheticals explaining their irrelevance to this case.
See LaFlamboy v. Landek
, 587 F. Supp. 2d 914 (N.D. Ill. 2008) (addressing potential liability only because defendantswere sued in
official and individual capacities, after expressly recognizing that they could not be liable in theirofficial capacity);
United States v. Warner
, 498 F.3d 666, 696 (7th Cir. 2007) (criminal case that did not address civilRICO liability);
United States v. Emond
, 935 F.2d 1511, 1512 (7th Cir. 1991) (same);
United States v. Garner
, 837F.2d 1404, 1419 (7th Cir. 1987) (same);
United States v. Genova
, 333 F.3d 750, 758 (7th Cir. 2003) (same);
United States v. Angelilli
, 660 F.2d 23, 32-33 (2d Cir. 1981) (same);
Envtl. Tectonics v. W.S. Kirkpatrick, Inc.
, 847 F.2d1052, 1067 (3d Cir. 1988) (commercial bribery case involving non-governmental companies and a Nigerian national“public official”);
Bieter Co. v. Blomquist
, 987 F.2d 1319 (8th Cir. 1993) (addressing lower court’s “excessivelynarrow views of causation and injury” but
addressing civil RICO liability of government officials);
Gutenkauf v.City of Tempe
, No. CV-10-02129-PHX-FJM, 2011 WL 1672065, at *5 (D. Ariz. May 4, 2011) (addressing potentialliability only because defendants were sued in
official and individual capacities but
analyzing capacityliability of government
officials sua sponte
as Plaintiffs claim).
Case 3:12-cv-00280-HTW-LRA Document 79 Filed 11/30/12 Page 3 of 6