990 F.Supp. 13 (1997)
F.D.R. FOX, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants.
Civil Action No. 91-0671-LFO.
United States District Court, District of Columbia.
November 25, 1997.
*14 *15 John H. Jamnback, Boraks & Jamnback, Washington, DC, for Plaintiff.
David Cleveland, Asst. Corporation Counsel, Washington, DC, for Defendants.

MEMORANDUM
OBERDORFER, District Judge.
Plaintiff filed this suit under 42 U.S.C. § 1983, alleging that he was terminated from his position as the director of security of the District of Columbia Lottery Board because he reported to the Metropolitan Police Department a theft of funds from the D.C. Lottery Claims Center, and that such termination violated his constitutional rights to free speech and due process.[1] Defendants were granted summary judgment on the due process claim, see March 22, 1994 Memorandum and Order, and the First Amendment claim went to trial in February 1995. After plaintiff presented his case-in-chief, a verdict was directed for the defendants on the grounds that Fox's report of the theft of funds was not a matter of public concern, and therefore not protected by the First Amendment. See February 17, 1995 Memorandum and Order. The Court of Appeals reversed, holding that plaintiff's report of the theft of funds was a matter of public concern. Fox v. District of Columbia, 83 F.3d 1491 (D.C.Cir. 1996). The Court of Appeals also vacated the earlier grant of summary judgment, holding that plaintiff's due process claim should be held in abeyance until he had adequate opportunity to pursue an administrative remedy.
This ruling necessitated a second trial on plaintiff's First Amendment claim. On January 31, 1997, a jury determined via special verdict that (1) plaintiff proved by a preponderance of the evidence that his reporting to the Metropolitan Police Department the theft of funds from the D.C. Lottery Claims Center was a substantial or motivating factor in defendants' decision to terminate him; and (2) defendants did not prove by a preponderance of the evidence that they would have terminated the plaintiff even if he had not reported the theft to the Metropolitan Police *16 Department. The jury also determined that Fox was entitled to $10,000 in compensatory damages, and that "defendants' termination of plaintiff was malicious or willful or in reckless disregard of plaintiff's rights," warranting an award of punitive damages in the amount of $100,000.
That special verdict did not resolve the case. Plaintiff's First Amendment claim also required a legal finding as to whether his interest in commenting upon matters of public concern outweighed the interest of the Lottery Board in promoting efficient public service. See Pickering v. Bd. of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); see also Pl's Mot. for Partial Summ. Judg. (96-1). Plaintiff moved for summary judgment on this issue on the eve of trial, and a ruling was deferred until after the verdict. See January 24, 1997 Notice to Counsel (94-1). By stipulation of the parties, issues concerning backpay and other damages were also reserved for post-trial determination by the Court, following additional discovery and briefing. See February 13, 1995 Stipulation (73-1). Finally, the parties filed numerous post-trial motions, including defendants' motions for judgment notwithstanding the verdict, a new trial, and/or remittitur; plaintiff's motion to "clarify" or amend the complaint; and defendants' motion to amend the answer.
Assuming, as the Court of Appeals decided, that plaintiff's report to the police was a matter of public concern, I conclude that his interest in that speech did outweigh the interest of the Lottery Board in promoting governmental efficiency. Plaintiff thus has a colorable claim under the First Amendment. However, several fundamental legal issues concerning liability of the various defendants under § 1983 were either not raised or were improperly framed by the parties prior to submission of the case to the jury. For this reason, defendants' motion for a third trial must be granted in order to avoid a miscarriage of justice. Plaintiff's motion to amend the complaint is granted, to the extent that he may proceed to trial on the theory that defendant Sylvia Kinard is liable in her individual capacity for any violation of his First Amendment rights. Defendants' motion to amend the answer is likewise granted; the motion for remittitur is denied as moot. Plaintiff is also directed to show cause why his due process claim should not be dismissed for lack of prosecution.

I.

Plaintiff's First Amendment Claim
The Supreme Court addressed the parameters of a public employee's First Amendment rights in Pickering v. Board of Education 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Under Pickering, a public employee's cause of action has four elements. Hall v. Ford, 856 F.2d 255, 258 (D.C.Cir.1988). Two of these are questions of law to be resolved by the court: whether the employee's speech involves a matter of public concern, and whether the employee's interest in commenting on such matters outweighs the interest of the State, as employer, "in promoting the efficiency of the public services it performs through its employees." Id., citing Pickering, 391 U.S. at 568.[2]
The Court of Appeals has already determined the first of these legal questions, by holding that the theft of $500 from the Lottery Claim Center was a matter of public concern. 83 F.3d at 1495. On January 24, 1997, plaintiff moved for summary judgment on the second question. Defendants effectively responded in their February 10, 1997 motion for judgment as a matter of law.
The Supreme Court has stated that in balancing the interests of the employee and the government employer under Pickering,
the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose. We have previously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among *17 co-workers. has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise. These considerations, and indeed the very nature of the balancing test, make apparent that the state interest element of the test focuses on the effective functioning of the public employer's enterprise. Interference with work, personnel relationships, or the speaker's job performance can detract from the public employer's function; avoiding such interference can be a strong state interest.
Rankin v. McPherson, 483 U.S. 378, 388 (1987) (internal quotations omitted).
Pickering inquires "whether there was, in fact an interference with the efficiency of the public services performed. Where no such interference is shown, the discharge cannot be sustained." Tygrett v. Barry, 627 F.2d 1279, 1282 (D.C.Cir.1980) (emphasis supplied); see also Brasslett v. Cota, 761 F.2d 827, 845 (1st Cir.1985) (detrimental impact must be objectively shown lest "public employers ... promiscuously offer a subjective explanation that could almost never effectively be rebutted"). Moreover, judicial review of the discharge "must be addressed solely to contemporaneous considerations." Tygrett, 627 F.2d at 1286. "[A]ny kind of reconstruction of the reasoning behind the discharge that provides the employer with a post hoc justification for its action cannot be allowed." Id.

A.
It is undisputed that the manner, time, and place of the employee's expression and the context in which this "matter of public concern" arose is substantially as follows. On the morning of January 13, 1988, employees at the D.C. Lottery and Charitable Games Control Board discovered that a safe located at the claims center  evidently left unlocked overnight  was missing a little over $500. Fox, the Board's director of security, traveled from his office at Lottery Headquarters to the Lottery Claims Center to make some preliminary inquiries. He interviewed three employees, including Laverne Hinds, the custodian of the funds. He returned to Lottery headquarters and reported his findings to Bernard Edwards, the Director of the Lottery Board. Edwards and Fox agreed to wait for the results of an audit before deciding how to proceed. On January 14, the audit concluded that $508.58 was missing from the safe. Fox and Edwards decided that the police should be notified regarding the theft of government funds. Fox called the police on January 15, 1988, and notified them about the theft of funds. Fox provided the police with a report.
On February 5th and 8th of 1988 defendant Sylvia Kinard, a deputy director of the Board, contacted Fox to determine why he was not interviewing suspects in the case. Fox responded that the matter was now a police investigation and thus no longer in the hands of the Lottery Board. He also told Kinard that he reported to Edwards, the director of the Board, and not to her. Kinard was not pleased with the manner in which Fox was handling of the matter. She testified that she thought his report to the police premature because Fox did not complete his own investigation first. Fox contended that the timing of his report was not really what bothered Kinard. Rather, it was his theory that Kinard was angry because his call to the police placed Laverne Hines, the Board employee responsible for safeguarding the missing funds and a relative of a friend of Kinard, under uncomfortable outside scrutiny  scrutiny that allegedly delayed a desired promotion for Hines. In any event, Kinard succeeded Edwards as the Board's acting director in March 1988 and promptly fired Fox.

B.
Fox argues correctly that the Pickering balancing test  weighing the interest of the employee in commenting upon matters of public concern and the interest of the employer in promoting the efficiency of the public services it performs  tips in his favor. Fox points out that his job description, in fact, explicitly states that the Director of Security:

*18 Plans, organizes and directs the investigation of all employees of the Board in cooperation and coordination with the Metropolitan Police Department.... Directs and coordinates the investigation of complaints and allegations of criminal or administrative violations and makes recommendations of their disposition to the Executive Director. Confers with prosecutors, attorneys, the Attorney General's representative or other law enforcement agencies regarding specific cases.
Pl. Part. Mot. Summ. J., Exh. C. at 2.
Fox acted within the scope of his authority as contemplated by his position description. He made a preliminary investigation of a "criminal or administrative violation," including interviewing witnesses and requesting an audit. He then made a "recommendation of [its] disposition to the Executive Director." That recommendation was to contact the Metropolitan Police Department. That is what he did, an action that the job description specifically contemplates.
Fox also points out that defendants conceded before the court of appeals that Fox "made no allegation to the media, did not participate in a demonstration, and made no communication for general distribution." Id. at 6. Fox also demonstrates that defendants have previously characterized Fox's report of the theft to the police as "merely carrying out a routine job task in his capacity as Director of Security for the Lottery Board." Id. Fox also accurately states that is undisputed that he did not violate any regulations in making his report. Nor is there any evidence of record that Bernard Edwards, the director of the Board at the time of this incident, criticized Fox's performance of his duties as Director of Security with respect to this incident or any other. See Edwards Dep. at 8.
The government argues that Fox interfered with the efficiency of the workplace by failing to complete an internal investigation. Sylvia Kinard testified that she believed Fox should have completed an internal investigation instead of deferring to the investigation by the police. This showing is inadequate to justify Fox's termination for his exercise of protected rights. First, Fox called the police in consultation with Executive Director Edwards, as contemplated by Fox's position description. Second, the government has not demonstrated that any disruption caused by Fox's report to the police is the kind of disruption that adversely affects the efficiency of the workplace. In other words, Fox's report to the police might have ruffled some feathers-and perhaps even delayed a promotion-but there is no showing that the report materially affected the efficiency of the workplace. Third, to the extent that the record reflects any "disruption" resulting from Fox's failure to complete his internal investigation before calling the police, the disruption was de minimis in nature. Indeed, objectively, it was the correct way to deal with the situation. Prolonged internal investigation could delay and chill police professional activity, and lead to charges of "cover-up."
The only other evidence in the record that may support the employer's interest pursuant to the Pickering balancing test is the testimony of several of Fox's co-workers who stated that they did not have "trust and confidence" in him. Indeed, "detrimental impact on close working relationships for which personal loyalty and confidence are necessary" is a recognized factor of the Pickering balancing test. This concern, however, is not at issue here because Pickering requires an inquiry only as to whether "the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." (emphasis added). Rankin v. McPherson, 483 U.S. 378, 388, citing Pickering, 391 U.S. at 570-573. The government made no showing that the lack of trust and confidence was attributable to the protected statement. Fox's coworkers, for example, testified that they were aware (by personal knowledge or otherwise) that Fox (i) may have included inaccurate or false information on his application for employment at the Lottery; (ii) looked out his office window with binoculars for purposes unrelated to work; and (iii) angered members of a *19 nearby church by informing them that they could not park in the Lottery headquarters' parking lot. Witnesses also drew adverse inferences from the fact that Fox kept a fishing rod and a stack of newspapers in his office although none of these inferences were apparently informed by personal knowledge. The lack of "trust and confidence" in Fox by his coworkers thus is not relevant to the Pickering balancing test because the government did not show that this opinion of Fox was attributable to the fact that Fox reported $500 in missing funds to the police before he completed an internal investigation. In sum, Fox's interest in commenting on matters what has been determined to be of public concern outweighs the government's interest in promoting efficiency in the workplace.

II.
Defendants' Motion for Post Trial Relief
On February 10, 1997, defendants moved for (i) judgment as a matter of law, or in the alternative, (ii) for a new trial, or in the alternative; and (iii) for remittitur. Plaintiff opposed on February 24, 1997.

A.
Defendants' combined motion for post-trial relief lists six grounds, three of which appear to be questions of law, and thus potential grounds for judgment as a matter of law.[3] In moving for post-verdict judgment as a matter of law, defendants are limited to those grounds previously raised in their motions for a directed verdict. See Whelan v. Abell, 48 F.3d 1247, 1251 (D.C.Cir.1995). The only ground raised by defendants in their pre-verdict motions was that "no reasonable jury can rule in the plaintiff's favor." See Trial Transcript of January 29, 1997 at 79; Trial Transcript of January 30, 1997 at 61. Trial Transcript of January 29, 1997 at 79; Trial Transcript of January 30, 1997 at 61. Only the second ground of defendants' motion-"Defendants were justified in terminating plaintiff, because plaintiff demonstrated that he was not competent to do his job"  arguably implicates the reasonableness of the jury.
Rule 50 provides that a court may grant a motion for judgment as a matter of law if "there is no legally sufficient evidentiary basis for a reasonable jury to have found" for the non-moving party. Judgment as a matter of law should only be granted "if viewing the evidence in the light most favorable to the [non-moving party] and giving him the advantage of every fair and reasonable inference that the evidence may permit, there can be but one reasonable conclusion drawn." Richardson by Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 827 (D.C.Cir.1988). In this case, Kinard's own testimony indicated that she was dissatisfied with Fox's report to the police. Plaintiff introduced into evidence an interrogatory in which defendants were specifically asked to identify any performance-based reasons for Fox's termination, and failed to do so. In sum, there was ample evidence at trial from which a reasonable jury could conclude that Fox was fired because of his report to the police, rather than for any of the performance failures cited by defendants in their motion, meritorious though they may be. Defendants' motion for judgment as a matter of law must therefore be denied.

B.
Defendants also moved, in the alternative, for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. Defendants cite no grounds for their request, other than a bare assertion that "the jury was clearly confused." Defs.' Mtn. for Jdgmt. at 1. However, "the court may grant a timely motion for a new trial for a reason not stated in the motion." FRCP 59(d). Indeed, *20 the court has a duty, as well as the power, to grant a new trial in order to remedy a "miscarriage of justice." 11 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure, Civil 2d § 2803 (1995).
Here, it is undisputed that defendant Kinard, as Acting Executive Director of the Lottery Board, terminated plaintiff, and that Kinard was an agent of the District of Columbia. See Trial Transcript of January 31, 1997 at 24-25. However, it is now rudimentary "hornbook" law that § 1983 does not countenance respondeat superior liability for local governments; rather, it authorizes suits for constitutional deprivations inflicted pursuant to government custom or policy. Monell v. Department of Social Services of City of New York, et al., 436 U.S. 658, 690-694, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978). A single action by a governmental official may rise to the level of government policy, Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), but only where the official has final policymaking authority for that area of the city's business. Id., 475 U.S. at 482-83 (plurality opinion): City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 128-30, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion); 140-42 (Brennan, J., concurring). In Praprotnik, the plaintiff was a municipal employee transferred to a dead-end job and subsequently laid off in retaliation for exercising his right to invoke employee grievance procedures. 485 U.S. at 114-116. A jury found that these retaliatory actions violated plaintiff's First Amendment rights; however, the Supreme Court held that the city could not be liable under § 1983 when the officials responsible for the alleged constitutional deprivation  directors of two city agencies-possessed only the authority to make employment decisions (i.e. transferring or terminating an agency employee), not the authority to set employment policy for the City of St. Louis. See 485 U.S. at 128-30 (plurality opinion.); 145-147 (Brennan, J., concurring). Even in dissent, Justice Stevens conceded that "If this case involved nothing more than a personal vendetta between a municipal employee and his superiors, it would be quite wrong to impose liability on the city...." Id. at 147.
Counsel for both parties neglected to address the Monell  Pembaur  Praprotnik line of cases in their briefs, which focused instead on issues concerning plaintiff's First Amendment rights, and his alleged status as a probationary employee. During the first trial, defense counsel raised Monell in an oral motion for a directed verdict which was eventually decided on other grounds.[4]See Trial Transcript of February 15, 1995 at 71-72. Between the first and second trials, new counsel entered an appearance on behalf of the defendants, and failed specifically to raise the Monell issue again.[5] And in the course of the second trial, plaintiff offered no argument or evidence to suggest that Sylvia Kinard had the final authority to make employment policy for the District of Columbia.[6] Indeed, during the second trial, Sylvia Kinard testified that her duties as Acting Director of the Lottery Board included "managing day-to-day operations, traveling to Lottery conferences and meetings, and giving direction to staff on special projects." Trial Transcript of January 30, 1997 at 4A-37.
The Monell doctrine as developed is a commonplace in the virtual flood of § 1983 cases brought in this Court against the District of Columbia. The raising of the Monell issue in the first trial carried the issue forward to the second trial, although counsel *21 appear to have forgotten it. The Kinard testimony, which was the only evidence offered about the scope of her official duties, contained no suggestion that Kinard had authority to formulate employment policy for the District of Columbia. Despite the foregoing, after colloquy with counsel and a stipulation that Kinard was an agent of the District of Columbia, see Trial Transcript of January 31, 1997 at 24-26, I inexplicably approved and delivered the following jury instruction on municipal liability:
You're instructed that Defendant Kinard, as Acting Executive Director of the D.C. Lottery and Charitable Games Board, was an official whose acts constituted actions of the District of Columbia and the Board. The District of Columbia and the Board are jointly liable for any damages in which the plaintiff has proved by a preponderance of the evidence to have been proximately caused by her actions in terminating him.
Trial Transcript of January 31, 1997 at 95. The instruction reflects the respondeat superior theory of municipal liability rejected by the Supreme Court in Monell and Praprotnik.
While it may be unusual for a court to grant a new trial on grounds raised in a first trial but not specifically called to its attention in a re-trial, in this instance, the jury instruction constituted such a fundamental and substantial error of law with constitutional ramifications, so that to let judgment stand against the District of Columbia under these circumstances would be a gross miscarriage of justice. For these reasons, a new trial must be granted with respect to the District of Columbia defendants, in which both parties will have an opportunity to brief the relevance of Praprotnik to the instant case, and file dispositive motions as appropriate. For reasons discussed in Part III infra, defendants' motion for a new trial will also be granted with respect to defendant Kinard. Defendants' motion for remittitur is thus moot.

III.

Defendant Sylvia Kinard
During the course of a March 19, 1997 evidentiary hearing on the issue of punitive damages, the Court invited briefing as to whether Defendant Kinard was named in her official or individual capacity. On April 1, 1997, plaintiff moved for "clarification," or in the alternative, for leave to amend the complaint. Plaintiff requests that this court clarify that Kinard was sued in her individual capacity. Defendant opposed on April 14, 1997.

A.
Government officials are not personally liable for damages when sued in their official capacities. See Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C.Cir.1996) (citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). A section 1983 suit for damages against municipal officials in their official capacities is thus equivalent to a suit against the municipality itself.[7]Id. Where the complaint fails to specify the capacity in which a government official is sued, the course of proceedings indicates the sort of liability plaintiff seeks to impose. Id. at 425 (citing Graham, 473 U.S. at 167 n. 4).
Plaintiff in this case obtained counsel only after filing his complaint. Both parties go to some length dissecting various components of the pro se complaint to divine some greater meaning as to the capacity in which Kinard was sued. These efforts shed little light on the issue. The simple fact remains that the complaint fails to specify the capacity in which Kinard is sued. The Supreme Court has unambiguously stated that in such circumstances, the "course of proceedings" defines the capacity in which the government official at issue is sued. Id.

B.
Plaintiff first asks the court to "clarify," per Graham, that Kinard was in fact, in "the course of proceedings," tried in her individual capacity. Unfortunately, the course of the *22 proceedings in this case is ill-defined. Plaintiff makes a strong argument that by conceding that Kinard was theoretically liable for punitive damages, defense counsel implicitly acknowledged and consented to suit in her individual capacity.[8] However, other actions taken by defense counsel-in particular, their failure to vigorously assert a qualified immunity defense prior to trial-suggest an assumption that Kinard was being sued in her official capacity only.[9] As stated, the complaint gave her no notice that she was being sued individually. Kinard sat at the counsel table during the trial. But she was represented only by the Corporation Counsel, who was also (and primarily) representing the District. It may reasonably be inferred that if Kinard thought she was exposed as an individual to liability for compensatory and punitive damages, she would have had her own lawyer. Her stance was much more suggestive of that of a "corporate representative." It is difficult to discern which, if any, of these actions represents Kinard's true understanding of the nature of the suit.[10]
Neither were plaintiff's own litigation tactics entirely consistent with an individual-capacity suit. While plaintiff did consistently demand punitive damages, which would only be available in an individual capacity suit against Kinard, he neglected to present any evidence to the jury concerning Kinard's ability to pay such damages. More importantly, the jury instruction on liability, proposed by plaintiff's counsel and delivered by the Court, suggested that Kinard's liability was co-extensive with that of the District of Columbia defendants, an indicia of an official-capacity suit.[11] Finally, the special verdict form submitted to the jury, with the approval of plaintiff's counsel, refers only to "the defendants" collectively. In fact, plaintiff's counsel interrupted the Court's delivery of jury instructions to request a last-minute change in the special verdict form: where the form previously required the jury to *23 make separate findings of liability against each of the three defendants, counsel requested, without objection by defendants, that Kinard and the District of Columbia defendants be placed on a single line.[12] More significantly. with respect to punitive damages, the jury was asked "what amount of money would punish defendants and deter others from engaging in similar conduct in the future?" See Verdict (99-1) (emphasis supplied).
The foregoing points strongly to the conclusion that the case against Kinard was submitted to the jury as an official capacity suit. Their verdict cannot be characterized or "clarified" ex post facto as a finding of individual liability. Plaintiff's request for "clarification" is therefore denied.

C.
In the alternative, plaintiff asks for leave to amend the complaint in order to name Kinard in her individual capacity. Federal Rule of Civil Procedure 15(b) provides:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
As discussed above-whatever the muddled intentions of the parties-the case was not, in fact, tried as an individual-capacity suit. A "conforming" amendment naming Kinard in her individual capacity is thus inappropriate.
However, in light of the foregoing, the appropriate course of action is to grant defendants' motion for a new trial with respect to Kinard,[13] and thereafter to permit plaintiff to amend the complaint by naming Kinard as a defendant in her individual capacity.
As a general matter, the district court should grant leave to amend a complaint "[i]n the absence of any apparent or declared reason  such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Atchinson, 73 F.3d at 425 (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). With respect to the specific question of whether and when a § 1983 complaint may be amended to name a government official in his or her individual capacity, Atchinson clarifies that potential prejudice to the defendant is the key consideration.
Here, there is no reason to conclude that Kinard would be unduly prejudiced by such an amendment. As matters stand, the jury found that she acted maliciously, and is liable for § 100,000 in punitive damages. A new trial can hardly prejudice her. As discussed *24 in Part II, defense counsel's discussion of punitive damages suggests that Kinard received some-though insufficient-notice that the suit might obtain in her individual capacity. Amendment of the complaint will provide her with clear notice that her personal assets are at stake, and allow her to consider (or reconsider) whether she wishes to obtain separate counsel. Whatever her choice, Kinard's counsel will also have the opportunity raise whatever defenses may be appropriate for an official sued in her individual capacity, conduct discovery appropriate to such a defense, and, after any trial, propose appropriate jury instructions.
Kinard objects to amendment on the additional grounds that a "new" claim is barred by the statute of limitations. The citation to Lovelace v. O'Hara, 985 F.2d 847 (6th Cir. 1993) is unpersuasive. In that case, the plaintiff had originally specified that the defendant police officer was being sued in his official capacity then sought leave to name the defendant in his individual capacity. Here, the complaint did not specify in which capacity Kinard was being sued. Kinard has had ample opportunity to clarify the nature of the suit, and at certain points, appeared (through counsel) to concede she was being sued in her individual capacity; she must bear some of the responsibility for the tardiness of plaintiff's request for leave to amend.
Kinard further claims that she is shielded by immunities that render plaintiff's proposed amendment futile. Her claim of absolute immunity is without merit, in that the Supreme Court has held the doctrine to apply only to a narrow class of judicial, legislative, and Presidential acts. See Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). With respect to qualified immunity, Kinard indeed may be entitled such to a defense under law, but that determination is best made after full briefing of the issue by both parties.[14]

IV.
Defendants' Motion to Amend Answer
Defendants' answer to the complaint failed to assert the defense of mitigation of damages. On April 23, 1997, defendants moved for leave to amend their answer to the complaint to assert the defense of failure to mitigate damages. Plaintiff opposes defendants motion, arguing that he was prejudiced by defendants' failure to assert mitigation of damages in their answer because he was not put on notice to document his efforts to obtain new employment. Plaintiff, however, was put on notice that defendants plaintiff's mitigation of damages would be a contested issue in this case. Defendants propounded interrogatories in October 1992 stating: "Describe fully the steps you have taken to obtain other employment since you terminated from the Lottery Board." Indeed, the parties stipulated that issues relating equitable relief, including backpay, would be resolved, if necessary, after a trial on the merits. In the course of post-trial briefing of these issues. defendants raised the question of mitigation in their March 10, 1997 Opposition to Plaintiff's Request for Reinstatement and for Back Pay. Both parties addressed the issue at a March 19, 1997 evidentiary hearing.
Finally, plaintiff cites no authority for the proposition that defendants are barred from asserting a defense of failure to mitigate damages where that defense was not asserted in the answer. Defendants point to several cases in which courts have granted defendants such relief. See e.g., 100 F.3d 778, 785 (10th Cir.1996); Sports Center v. Brunswick, 63 F.3d 649, 652 (7th Cir.1995). In light of the fact that plaintiff is not unduly prejudiced by consideration of mitigation here, an accompanying order grants defendants' motion to amend their answer to assert a defense of mitigation of damages.

V.

Determination of Backpay and Related Remedies
On March 7, 1997, plaintiff filed a motion requesting backpay, sickpay, prejudgment interest, and reinstatement. Defendants opposed *25 on March 10, 1997. Plaintiff replied on March 17, 1997. An evidentiary hearing was held on March 19, 1997. The parties filed proposed findings of fact and conclusions of law thereafter. Plaintiff's motion will be held in abeyance, pending the outcome of the new trial.

VI.

Plaintiff's Due Process Claim
On May 21, 1996, the Court of Appeals instructed that plaintiff should be given an opportunity to pursue an administrative remedy with the D.C. Office of Employee Appeals (OEA) concerning the Lottery Board's classification of him as a probationary employee. The Court of Appeals slated:
On remand, if Fox indicates that we he will attempt to pursue his OEA remedy, the district court should hold the due process part of the case in abeyance until either it becomes moot (or simply empty) through OEA's having ruled upon Fox's career/probationary status on the merits, or resolution of Fox's due process claim becomes necessary because OEA denies Fox such a hearing due to the untimeliness of his petition. If Fox does not wish to attempt an appeal to the OEA, his due process claim can be deemed abandoned and suitable for dismissal with prejudice.

83 F.3d at 1496-97 (emphasis supplied).
At a status hearing on November 7, 1997, the Court inquired as to the status of Fox's case before the Employee Appeals Board. The parties represented that, approximately eighteen months after the Court of Appeals opinion, an administrative judge has yet to be assigned to hear Fox's case. Although not impossible, it seems unlikely that such a major delay in the adjudication of plaintiff's administrative claim could have occurred unless the plaintiff himself had effectively abandoned prosecution of it. It is also clear that the Court of Appeals did not intend that resolution of plaintiff's due process claim should be delayed indefinitely. Accordingly, plaintiff will be directed to show cause why his due process claim should not be dismissed for failure to prosecute.

* * * * * *
An accompanying Order implements the decisions announced herein.

ORDER
For reasons stated in the accompanying Memorandum, it is this 25th day of November hereby
ORDERED: that plaintiff's motion for partial summary judgment (96-1) is GRANTED; and it is further
ORDERED: that defendants' motion for judgment as a matter of law (104-1) is DENIED; and it is further
ORDERED: that defendants' motion for a new trial (104-1) is GRANTED; and it is further
ORDERED: that defendants' motion for remittitur (104-1) is DENIED as moot; and it is further
ORDERED: that plaintiff's motion to clarify the complaint (119-1) is DENIED; and it is further
ORDERED: that plaintiff's motion to amend the complaint (119-1) is DENIED IN PART, AND GRANTED IN PART to the extent that plaintiff may, in anticipation of a new trial, amend his complaint to name Sylvia Kinard in her individual as well as her official capacity; and it is further
ORDERED: defendants' motion for leave to amend the answer (127-1) is GRANTED; and it is further
DECLARED: plaintiff's motion for reinstatement, backpay and other damages (106-1) will be held in abeyance, pending the outcome of the new trial; and it is further
ORDERED: that, at the status hearing scheduled for December 2, 1997, plaintiff shall show cause why his due process claim should not be dismissed for failure to prosecute.
NOTES
[1]  Plaintiff's complaint also raised a Fourteenth Amendment equal protection claim, which he appears to have abandoned. In any event, such claim will be dismissed for lack of prosecution.
[2]  The second two elements are questions of fact left to the jury: whether the employee's speech was a "substantial or motivating factor" behind his or her discharge, and whether the government employer would have reached the same decision absent such speech. Hall v. Ford, 856 F.2d at 258, citing Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
[3]  The stated grounds are: "1. Plaintiff has not shown that his interest in expression outweighs the government's interest in promoting the efficiency of the public service. 2. Defendants were justified in terminating plaintiff, because plaintiff demonstrated that he was not competent to do his job. 3. No punitive damages should be awarded because there was no showing of exceptional circumstances." Defs.' Mtn. for Jdgmt. at 1. The first ground has now been resolved in plaintiff's favor on plaintiff's motion for summary judgment. See Part I supra. Grounds 4 and 6 concern excessive damages, which are relevant only to the motion for remittitur; Ground 5 asks for a new trial on the grounds that the jury was "confused." Id. at 1-2.
[4]  The transcript from the first trial reveals plaintiff's counsel to be well acquainted with Monell, Pembaur and Praprotnik. See Trial Transcript of February 16, 1995 at 10-12.
[5]  The failure of Corporation Counsel to assert this fundamental and familiar limitation on municipal liability is inexplicable and unfortunate.
[6]  The Praprotnik plurality held that the existence of final policymaking authority is a question of state law, to be determined by the court prior to submission to the jury. 485 U.S. at 125, 126. Joined by Justices Marshall and Blackmun, Judge Brennan concluded in his concurrence that the question is one of both law and fact, that is "rightly entrusted to a properly instructed jury." Id. at 143. Significantly, on facts remarkably similar to the instant case, both approaches led to the same conclusion: the city agency heads were not final policymakers in the area of municipal employment policy.
[7]  Thus, to the extent that Kinard was sued in her official capacity, her liability is determined by the same standard that applies to the District of Columbia defendants, discussed supra in Part II.
[8]  At the first pretrial conference on February 9, 1995, counsel for defendants made the following representations concerning Kinard's liability for punitive damages:

Ms. Maniscalco: Your Honor, I  I filed jury instructions with respect to punitive damages. As your Honor is aware, the District of Columbia cannot have punitive damages assessed in the case of Newport News  Newport City.
Also, the Lottery Board is only in this case, since it's not sui juris, is only in the case with respect to injunctive relief. Your Honor has already decided that.
So the issue of punitive damages only goes to Ms. Kinard. The Lottery Board nor the District of Columbia is susceptible.
The Court: Is she separate and represented?
Ms. Maniscalco: She's not.
The Court: Are you representing her?
Ms. Maniscalco: Yes I am, Your Honor.
Trial Transcript of February 9, 1995 at 31 (emphasis supplied).
A similar colloquy occurred during the second trial in the course of discussing jury instructions. Defendants were now represented by Mr. Cleveland:
Mr. Cleveland: I would suggest, Your Honor, that punitives are not proper in this case.
The Court: Do you want to argue that?
Mr. Cleveland: Yes, I dare say in the last 40 years there has been no jury that's been asked to award punitive damages against the District of Columbia because no judge has ever granted such a request; that punitive damages against the District as [sic] possible only under extraordinary circumstances and certainly not the case here.
And certainly punitive damages against Sylvia Kinard, individually, are not proper because the overwhelming weight of the evidence is she did nothing wrong, number one and if she did something wrong, it certainly wasn't intentional. So punitives should not be in this case.
Trial Transcript, Jan. 23, 1997 pp. 21-22 (emphasis supplied).
[9]  Cf. Rodney A. Smolla, Federal Civil Rights Acts § 14.04[3](a) (3rd ed. 1997) ("`Qualified immunity' ... is the form of official immunity most likely to be applied in § 1983 actions against officials in their individual capacities.... [A]s a practical matter, `qualified immunity' is the workhorse defense of most § 1983 ... cases").
[10]  See Atchinson, 73 F.3d at 425 ("the examples cited by Atchinson suggest not that the parties understood that Atchinson had sued Officer Collins in his individual capacity, but rather that lawyers on both sides misunderstood various points of law").
[11]  You're instructed that Defendant Kinard, as Acting Executive Director of the D.C. Lottery and Charitable Games Board, was an official whose acts constituted actions of the District of Columbia and the Board. The District of Columbia and the Board are jointly liable for any damages in which the plaintiff has proved by a preponderance of the evidence to have been proximately caused by her actions in terminating him.

Trial Transcript of January 31, 1997 at 25, 95 (emphasis supplied).
[12]  The colloquy proceeded as follows:

Mr. Jamnback: I have a possible glitch. Is this, is there going to be a situation where they could find against Sylvia Kinard and not against the District, given the Court's instruction?
The Court: On the punitive damages. What's your point?
Mr. Jamnback: Section 3-B where they find in favor of, this is not damages.
The Court: I will ask the defendants, what do you want? Mr. Jamnback: Just one line. One line for Sylvia Kinard for all three of them.
The Court: All right. Does that suit you?
Mr. Cleveland: I am confused.
. . . . .
The Court: Well, why don't we just say leave out those words and just say "against the defendants?"
Mr. Jamnback: With one line.
The Court: Yes, all right. Does that suit you?
Mr. Cleveland: That's fine.
Trial Transcript of January 31, 1997 at 97-98 (emphasis supplied).
[13]  In addition to being an appropriate option, from a procedural standpoint a new trial may in fact be the only option. A court may not grant post-verdict judgment as a matter of law on grounds not raised by the parties prior to the submission of the case to the jury. See, e.g., American and Foreign Ins. Co. v. Bolt, 106 F.3d 155 (6th Cir.1997).
[14]  For an explanation of the standard for granting summary judgment on the issue of qualified immunity, the parties' attention is directed to Crawford-El v. Britton, 93 F.3d 813 (D.C.Cir. 1996).


135 F.3d 764
In re Dennis Hartenstine; Dennis Hartenstinev.Dolores Hartenstine
NO. 97-1011
United States Court of Appeals,Third Circuit.
Dec 19, 1997

Appeal From:  E.D.Pa. ,No.96cv08047 ,
Hutton, J.

1
Affirmed.


                                                                           FILED
                           NOT FOR PUBLICATION                             NOV 02 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

MOHIT RANDHAWA, AKA Harpal                       No. 13-16581
Singh; SHANNON CALLNET PVT
LTD.,                                            D.C. No. 2:09-cv-02304-WBS-
                                                 KJN
              Plaintiffs - Appellants,

 v.                                              MEMORANDUM*

SKYLUX, INC.; INTERACTIVE
INTELLIGENCE, INC.; MUJEEB
PUZHAKKARAILLATH; SKYLUX
TELELINK PVT LTD.,

              Defendants - Appellees.

                  Appeal from the United States District Court
                       for the Eastern District of California
                William B. Shubb, Senior District Judge, Presiding

                           Submitted October 19, 2015**
                             San Francisco, California

Before: WALLACE, D.W. NELSON, and CLIFTON, Circuit Judges.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Mohit Randhawa and Shannon Callnet Pvt Ltd. (STPL) (collectively,

plaintiffs) appeal from the district court’s dismissal of their action against Skylux,

Inc. (Skylux) on the basis of forum non conveniens. We review the district court’s

decision for an abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257

(1981). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      To prevail on a motion to dismiss on the grounds of forum non conveniens,

the defendant “must show two things: (1) the existence of an adequate alternative

forum, and (2) that the balance of public and private interest factors favors

dismissal.” Boston Telecommunications Grp. Inc. v. Wood, 588 F.3d 1201, 1206

(9th Cir. 2009), citing Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583

F.3d 656, 664 (9th Cir. 2009). In dismissing the case, plaintiffs contend the district

court abused its discretion by (1) admitting the expert declaration of Ambika S.,

w/o H.S. Arunpraksh (Ambika S.); (2) concluding that the Ambika S. declaration

sufficiently established the adequacy of Indian courts; (3) determining that the

private interest factors weighed in favor of dismissal; and (4) failing to impose

conditions on dismissal.

      First, the district court properly admitted the Ambika S. declaration even

though defendants failed to adhere to Eastern District of California Local Rule

142(a), which requires that affidavits submitted in support of a motion be filed

                                           2
with the motion to which it relates, unless accompanied by an affidavit of counsel

purporting to show good cause for the separate filing. Although “[d]istrict judges

must adhere to their court’s local rules,” only “a departure from local rules that

affects ‘substantial rights’ requires reversal.” All. of Nonprofits for Ins., Risk

Retention Grp. v. Kipper, 712 F.3d 1316, 1327 (9th Cir. 2013) (internal citations

and quotations omitted). Here, the district court had the discretion to admit the late-

filed declaration, even without an affidavit of counsel showing good cause for the

separate filing, because it did not affect plaintiffs’ substantial rights. Despite the

tardy filing, plaintiffs still had over a month to respond to the declaration in their

opposition.

      Second, plaintiffs’ argument that the expert declaration was insufficient to

establish the adequacy of the local courts in Bangalore and Ludhiana fails.

Plaintiffs waived this objection by neglecting to raise it before the district court.

See In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989). Even if plaintiffs

had not waived this argument, the district court properly concluded that the courts

of India would provide a suitable alternate forum for this dispute.

      Third, plaintiffs contend that the district court abused its discretion in

weighing the private interest factors because the court failed to address ease of

access to sources of proof, the availability of compulsory process, the cost of

                                            3
obtaining attendance of willing witnesses, and the enforceability of a judgment.

Boston Telecommunications, 588 F.2d at 1206-07 (listing the private interest

factors to be weighed). Plaintiffs’ argument is not persuasive. The district court

assessed the locations of the parties and witnesses, emphasizing that almost every

witness resided in India; conceded that it was uncertain as to whether compulsory

process existed, but highlighted that defendants never indicated that witnesses

would be unwilling to testify; and stated that plaintiffs never provided any

evidence demonstrating why a judgment in India would be unenforceable against

STPL.

      Lastly, the district court did not abuse its discretion by failing to condition

dismissal on the defendant’s waiver of a statute of limitations defense in the

alternative forum. See Carijano v. Occidental Petroleum Corp., 643 F.3d 1216,

1235 (9th Cir. 2011), citing Paper Operations Consultants Inern., Ltd. v. S.S. Hong

Kong Amber, 513 F.2d 667, 672 (9th Cir. 1975) (limiting a district court’s

discretion to dismiss for forum non conveniens where an expired statute of

limitations would bar the action in the alternative forum). Plaintiffs never

requested that the district court impose such a condition and have therefore waived

this objection. No case suggests, moreover, that the district court was required to

impose conditions sua sponte on dismissal.

                                           4
AFFIRMED.

            5


327 F.2d 58
Bobby Ray ALLEN, Appellant,v.UNITED STATES of America, Appellee.
No. 20940.
United States Court of Appeals Fifth Circuit.
Jan. 29, 1964.

Bobby Ray Allen, pro se.
B. H. Timmins, Jr., Asst. U.S. Atty., Dallas, Tex., for appellee.
Before HUTCHESON and BELL, Circuit Judges, and BREWSTER, District judge.
PER CURIAM.

1
This suit was brought by appellant as a post-conviction proceeding attacking an action of the United States Board of Parole in regard to an eighteen month sentence imposed on him by the federal court in Dallas, Texas.

2
The petition states that it is brought under 28 U.S.C.A. 2255, and appellant presents the case on that basis in this Court.  However, appellant has filed and prosecuted this action without the assistance of counsel, and we have also considered his pleading from the standpoint of an application for writ of habeas corpus for the purpose of determining if he could be entitled to any relief from either type of proceeding.  A brief statement of the facts will show that there is no basis for the relief prayed for regardless of whether his petition is considered as a motion under 28 U.S.C.A. 2255 or as an application for writ of habeas corpus.

3
On July 31, 1957, the United States District Court for the Eastern District of Texas sentenced the appellant to four years upon his plea of guilty to a violation of the Dyer Act.  On May 28, 1958, he was convicted in the United States District Court for the Northern District of Texas on a charge of escaping from federal custody in violation of 18 U.S.C.A. 751, and was given a sentence of eighteen months to run consecutively with his four year term.  He was paroled on October 3, 1961, after serving the balance of his four year sentence and a portion of his eighteen month term.  He committed another federal offense during the period of his parole, for which the United States District Court for the Western District of Oklahoma, on December 20, 1961, gave him a term of five years.  On January 3, 1962, that sentence was reduced to three years.  At all times material to this litigation the appellant has been in custody in the United States Penitentiary at Leavenworth, Kansas, under that three year sentence.

4
Appellant was advised on February 16, 1962, during the service of his three year sentence, that a parole violator's warrant had been issued upon order of the Board of Parole on account of his last offense and conviction in Oklahoma, and that the warrant was being held as a detainer against him for service of the unexpired portion of his eighteen month sentence.  His purpose in bringing this suit is to attack the legality of the action of the Board of Parole in issuing the parole violator's warrant, on the ground that the method of execution of his sentence and the computation of time thereon is illegal.  He raises no question about the validity of the eighteen month sentence imposed upon him in the court below.

5
We are of the opinion that the trial court correctly denied the relief sought by appellant, for the following reasons: (1) A motion under 28 U.S.C.A. 2255 was proper only for the purpose of attacking the validity of petitioner's eighteen month sentence.  (2) Such a motion could not be employed to question an action of the Board of Parole or Bureau of Prisons regarding the manner in which the prison sentence had been or was being executed.  United States v. Howell, 103 F.Supp. 714, 718 (D.C.W.Va.1952), affirmed, Howell v. United States, 199 F.2d 366 (4 Cir., 1952).  (3) It would avail the petitioner nothing to consider his petition as an application for writ of habeas corpus, as he was not in custody within the territorial limits of the court below at the time of the institution of this suit.  Ahrens v. Clark,335 U.S. 188, 68 S.Ct. 1443, 93 L.Ed. 1898 (1948); Whiting v. Chew, 273 F.2d 885 (4 Cir., 1960).

6
The judgment is affirmed.


537 U.S. 1018
JONESv.UNITED STATES.
No. 01-10925.
Supreme Court of United States.
November 12, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

2
C. A. 5th Cir. Certiorari denied. Reported below: 287 F. 3d 325.


587 So.2d 1217 (1991)
David F. SMITH
v.
Rita SMITH.
2900396.
Court of Civil Appeals of Alabama.
September 6, 1991.
Bruce A. Burttram of Burttram & Henderson, Birmingham, for appellant.
Donna W. Smalley, Tuscaloosa, for appellee.
THIGPEN, Judge.
This case involves post-divorce proceedings regarding child support.
When the parties divorced in 1985, the mother was awarded custody of the three children subject to the visitation rights of the father. The oldest child is not involved in this appeal.
In July 1990, the father petitioned for a modification alleging a substantial and material change in circumstances and requested to modify the last judgment as it concerned custody of the parties' middle child and the child support obligation. That child was living with the father at the time of the petition. Ultimately, the parties agreed to the change in custody and presented the trial court with a stipulation of facts regarding their incomes and other matters pertinent to this cause. The trial court entered an order changing custody from the mother to the father, ordering the father to pay court costs and $200 towards the mother's attorney's fee, ordering the father to pay the mother $301.74 per month for support of the parties' youngest child remaining in her custody, and ordering that the mother shall pay "no child support" to the father for the child in his custody. *1218 After the father's post-trial judgment was denied, he appealed.
The dispositive issue raised by the father is whether the trial court erred by failing to order the mother to pay child support pursuant to the guidelines established in Rule 32, A.R.J.A.
We are mindful that matters concerning child support and its subsequent modifications rest soundly within the trial court's discretion. Belser v. Belser, 558 So.2d 960 (Ala.Civ.App.1990); Conradi v. Conradi, 567 So.2d 364 (Ala.Civ.App.1990). Actions concerning child support, which are filed on or after October 9, 1989, although guided by the mandatory application of Rule 32, A.R.J.A., are still committed to the sound discretion of the trial court. See Peck v. Peck, 581 So.2d 1119 (Ala.Civ.App. 1991); see also, Belser, supra. The trial court may elect not to apply the mandatory guidelines by entering a written finding on the record that the application of the guidelines would be unjust or inappropriate. Rule 32(A), A.R.J.A.
This action concerning the change in custody and the request for child support as a result of that custody change was clearly filed after the effective date of Rule 32, A.R.J.A. The father advances at least three possible theories that the trial court could have utilized in calculating the child support award to the mother. The mother argues that because the two children involved in this case are in two different households, a different (but uncertain) calculation applies. While we find the various arguments of each party creative, they are merely speculative, and we are not convinced of their soundness. It is clear that a trial court may chose not to use the guidelines only if it determines and documents in the record that application of the guidelines is unjust. Rule 32(A), A.R.J.A., Peck, supra.
In the instant case, we are unable to determine what calculation, if any, the trial court utilized in its determination of the child support award, whether the trial court considered the income of the mother in its award, whether the father's child support obligation was offset by his having custody of one of the two remaining minor children of the marriage, or whether the trial court considered the mandatory application of the guidelines in Rule 32, A.R.J.A. Accordingly, this case must be reversed for further proceedings, if necessary, or for the entry of an order consistent with this opinion.
The mother's request for an attorney's fee for this appeal is denied.
REVERSED AND REMANDED WITH INSTRUCTIONS.
ROBERTSON, P.J., and RUSSELL, J., concur.


                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 20 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS

                             FOR THE NINTH CIRCUIT

RAYE ELLEN STILES,                               No. 11-15903

               Plaintiff - Appellant,            D.C. No. 4:07-cv-00670-RCC

  v.
                                                 MEMORANDUM *
PARAGON REALTY, DBA TPI Vista
Montana, LLC; et al.,

               Defendants - Appellees.

                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                              Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Raye Ellen Stiles appeals pro se from the district court’s summary judgment

in her action alleging, among other claims, housing discrimination. We have

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                                                                11-15903
jurisdiction under 28 U.S.C. § 1291. We review de novo and may affirm the

district court on any ground supported by the record. Crowley v. Nevada, 678 F.3d

730, 733–34 (9th Cir. 2012). We affirm.

       Summary judgment on Stiles’ claims for intentional infliction of emotional

distress, aggravation of preexisting conditions, and public humiliation was proper

because she already litigated these claims in Arizona state court, and, thus, res

judicata precludes her from bringing such claims in federal court. See Sunkist

Growers v. Fisher, 104 F.3d 280, 283–84 (9th Cir. 1997) (holding that under

Arizona law a litigant may not bring a claim identical to one she has previously

litigated).

       Summary judgment on Stiles’ federal claims and her state law conspiracy

claims based on her eviction was also proper because Stiles is collaterally estopped

from relitigating the issue of whether her landlord had a valid, non-pretexual

motive for evicting her. See Chaney Bldg. Co. v. Tucson, 716 P.2d 28, 30 (Ariz.

1986) (discussing the differences between issue and claim preclusion).

       Summary judgment on Stiles’ claim that defendants failed to repair her

apartment out of discriminatory or retaliatory animus in violation of the Federal

Housing Act was proper because she failed to raise a material dispute of fact as to

whether there was disparate treatment based upon a federally protected ground.

                                           2                                     11-15903
See Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 711

(9th Cir. 2009); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986)

(plaintiff may not survive summary judgment based on conclusory allegations in

complaint).

      Stiles’ other contentions, including those concerning discovery issues and

alleged attorney misconduct, are unpersuasive.

      AFFIRMED.

                                         3                                   11-15903


92 Ill. App.3d 176 (1980)
415 N.E.2d 1076
MARY ANN GREEN, Plaintiff-Appellee,
v.
WILMOT MOUNTAIN, INC., et al., Defendants-Appellants.
No. 79-992.
Illinois Appellate Court  First District (5th Division).
Opinion filed December 24, 1980.
Timothy J. Gillick, of Pretzel, Stouffer, Nolan & Rooney, of Chicago (Robert Marc Chemers and Joseph B. Lederleitner, of counsel), for appellants.
*177 Steinberg, Polacek & Goodman, of Chicago (William L. Barr, Jr., and Kenneth W. Bley, of counsel), for appellee.
Judgment affirmed.
Mr. JUSTICE WILSON delivered the opinion of the court:
This appeal involves the trial court's August 25, 1978, order dismissing plaintiff's 1976 personal injury action "for want of prosecution without prejudice." After plaintiff refiled her action pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), defendant Wilmot Mountain, Inc., moved for leave to appear in the original suit and to modify the August 25 dismissal order to read "with prejudice," so as to bar the refiled action. The court denied these motions and defendants[1] appeal. For reasons set forth, we affirm.
The chronology of events in the case follows.

   January 4, 1975          Plaintiff injured in skiing accident on
                            defendant Wilmot's ski slopes.
   December 30, 1976        Complaint filed.
   January 4, 1977          Statute of limitations expired.
   January 17, 1977         Summons placed with Cook County sheriff (no
                            evidence of return in record).
   August 25, 1978          Complaint dismissed, without prejudice, for
                            want of prosecution.
   September 5, 1978        Plaintiff refiled her complaint under section
                            24 of the Limitations Act.
   March 1, 1979            Wilmot moved for leave to file a special and
                            limited appearance in the original suit and to
                            amend the August 25 order.
   March 23, 1979           Wilmot sought leave to enter a general
                            appearance and to amend the August 25 order.

Wilmot's motion alleged that it was never served with process; that more than three years after the injury occurred, the suit was dismissed without prejudice; that the August 25 dismissal order was erroneous because, under Supreme Court Rule 103(b), the motion judge could only dismiss the cause "with prejudice," and that the August 25 order must therefore be amended accordingly.
In opposition to Wilmot's contentions, plaintiff argues: (1) the August 25, 1978, order was a final order and the trial court consequently had no jurisdiction to hear defendants' motions because they were filed after the 30-day period provided by section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3); (2) the trial court cannot modify its order absent a memorandum which indicates the basis for the modification; (3) *178 a summary modification of the order would contravene section 24 of the Limitations Act.

OPINION
Initially, we must confront the jurisdictional question raised by this appeal. As an alternative argument to our affirming the trial court's denial of defendants' motions to modify the August 25 order, plaintiff suggests that we have no jurisdiction over this appeal because defendants did not file their notice of appeal within 30 days after the entry of the August 25, 1978, order. (See Supreme Court Rule 303, Ill. Rev. Stat. 1979, ch. 110A, par. 303.) Plaintiff supports this contention by asserting that the August 25 order was a final and appealable order and that the trial court lost jurisdiction to hear any further motions regarding the cause after 30 days. (See Ill. Rev. Stat. 1977, ch. 110, par. 68.3.) Therefore, defendants' appeal from the denial of those March orders is, in effect, an improper collateral attack on the August 25 order. Hence, plaintiff argues, we also lack jurisdiction over the matter. Defendants, on the other hand, argue that the trial court retained its power to amend its records, even after 30 days, to conform them to the law. Additionally, defendants claim that the August 25 order as entered is void, which subjects it to collateral attack. Our threshold determination, therefore, is whether this cause is properly before us on appeal.
 1 We agree with plaintiff that the August 25, 1978, order was final in the sense that plaintiff's 1976 lawsuit was terminated and the court lost jurisdiction, after 30 days, to entertain further motions to vacate or modify its order. (Ill. Rev. Stat. 1977, ch. 110, par. 68.3; Watts v. Medusa Portland Cement Co. (1971), 132 Ill. App.2d 227, 268 N.E.2d 721; Athletic Ass'n of University v. Crawford (1963), 43 Ill. App.2d 52, 192 N.E.2d 556.) Therefore, defendants' March 1 and March 23 motions were not timely filed in the trial court. The court's subsequent denial of those motions would thus be proper on that basis. Noting that defendants filed their notice of appeal from those March orders on March 29, 1979  within the requisite 30-day period under Supreme Court Rule 303  we thus have jurisdiction to review the court's denial of those orders. We could simply affirm by assuming the court's denials of the motions to be predicated on the court's lack of jurisdiction. This result, of course, would obviate the need to discuss the merits of defendants' proposed construction of Supreme Court Rule 103(b).
 2 We believe, however, that disposing of this case solely on this jurisdictional theory would be an overly facile way of avoiding the real issue in this case: Was the motion judge under a mandatory duty, under the circumstances of this case, to dismiss plaintiff's cause with prejudice *179 for failure to exercise diligence in service of summons? If so, defendants should not be barred from seeking the appropriate relief, especially since they had no previous opportunity to raise the issue, not having been served with summons. Therefore, although we do not agree with defendants that the August 25 order is void,[2] we believe that defendants' motions should be treated as petitions for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). (See Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill. App.3d 688, 306 N.E.2d 510.) The purpose of section 72 is to bring to the court's attention matters which, if known to the court at the time judgment was entered, would have prevented its rendition. (Mercantile All-In-One Loans, Inc. v. Menna (1978), 63 Ill. App.3d 931, 380 N.E.2d 944; Hall v. Hall (1973), 15 Ill. App.3d 599, 304 N.E.2d 763.) Under section 72, relief from judgments may be sought upon proper grounds within two years after the order or judgment is entered. In the pending case, defendants' motions alleged that the August 25 want of prosecution dismissal was in fact a mandatory dismissal with prejudice for lack of diligence in obtaining service. Accordingly, defendants' motions achieved the purpose of bringing to the court's attention defendants' position. Therefore, since the court implicitly rejected defendants' proposed application of Supreme Court Rule 103(b) (Ill. Rev. Stat. 1979, ch. 110A, par. 103(b)), we will review the merits of the argument.
The rule provides, in pertinent part:
"(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court's own motion."
Defendants state that the trial court has the power to "reform its records to make them speak the truth, where there is a proper basis upon which to amend an order." In the pending case, defendants argue the court had no discretion to dismiss without prejudice because, under Rule 103(b), plaintiff failed to exercise reasonable diligence to obtain service *180 after expiration of the statute of limitations. Since defendants apparently had no knowledge of the suit, they could not have moved for dismissal under Rule 103(b); consequently, defendants argue that the court was impelled to do so on its own motion.
Despite the ingenuity of defendants' theory, we reject the premise that the court was bound to dismiss plaintiff's action with prejudice, under Rule 103(b) on the August 25, 1978, "No Progress Call."
 3 The order is unambiguous on its face and there is nothing in the record to contradict its presumptive validity. (See Amalgamated Trust & Savings Bank v. Conrad Kern Co. (1975), 34 Ill. App.3d 430, 434, 340 N.E.2d 36.) To grant defendants' requested relief, therefore, we would have to determine that plaintiff's failure to serve defendants for more than 20 months after the expiration of the applicable statute of limitations was a per se lack of diligence under Rule 103(b). Because the record contains no report of the August 25 proceedings before the lower court, we cannot speculate as to what showing, if any, was made to support the dismissal without prejudice. However, it is reasonable to assume that, had the court determined that plaintiff had not exercised reasonable diligence it would have stated in its order that the dismissal was for that reason, under Rule 103(b). In that case the words "without prejudice" would be erroneous because of the expiration of the statute of limitations; the rule provides that such dismissals "shall be with prejudice."
Nevertheless, in the pending case the trial court did not make a finding of plaintiff's purported lack of diligence; rather, it dismissed the action for want of prosecution. This basis for dismissal is distinct from a 103(b) dismissal (Wallace v. Smith (1979), 75 Ill. App.3d 739, 745, 394 N.E.2d 665, 669), and the trial court's power to dismiss a suit for want of prosecution exists independent of any statute or rule of court (e.g., Hogan v. Braudon (1976), 40 Ill. App.3d 352, 354, 352 N.E.2d 303, 305, citing Epley v. Epley (1928), 328 Ill. 582, 585, 160 N.E. 113). It is thus evident that, unless we hold that plaintiff's lack of diligence is conclusively presumed because of the passage of 20 months from the time she filed suit to the time of the August 25, 1978, dismissal order, we have no basis for modifying the order as requested. Indeed, the effect of such a modification would be an appellate adjudication of the diligence question under Rule 103(b). Consequently, plaintiff would be denied her opportunity to present rebuttal evidence. We do not believe such a result would be consonant with the purpose of Rule 103(b).
In Wallace v. Smith (1979), 75 Ill. App.3d 739, 394 N.E.2d 665, we stated that a motion to dismiss under this rule is addressed to the trial court's sound discretion. We also enumerated several factors courts examine in deciding whether plaintiff has exercised reasonable diligence in obtaining service of process, including: "`(1) the length of time used to *181 obtain service; (2) the activities of plaintiff; (3) any knowledge on part of plaintiff of defendant's location; (4) the ease with which defendant's whereabouts could have been ascertained; (5) the actual knowledge of defendant of pendency of the action; and (6) special circumstances which would affect the efforts made by plaintiff.'" (Wallace, 75 Ill. App.3d 739, 744, 394 N.E.2d 665, 668, quoting Piscitello v. Barton (1978), 66 Ill. App.3d 451, 453-54, 384 N.E.2d 47, 49-50.) We believe that consideration of all relevant factors by the trial court is necessary to ensure that a plaintiff's failure to obtain service is in fact an intentional delay subject to the sanction of dismissal with prejudice. See Karpiel v. La Salle National Bank (1970), 119 Ill. App.2d 157, 255 N.E.2d 61.
 4 We recognize the importance of protecting a defendant's right to be timely served with process, so as to facilitate the investigation and defense of claims while evidence is fresh. Moreover, courts have acknowledged that Rule 103(b) safeguards against the undermining and circumvention of statutes of limitation. (Alsobrook v. Cote (1971), 133 Ill. App.2d 261, 264, 273 N.E.2d 270, 272.) Thus, the burden is on a plaintiff to show reasonable diligence once the defendant makes a prima facie showing. (Martin v. Lozada (1974), 23 Ill. App.3d 8, 318 N.E.2d 334.) In the pending case, however, it does not appear that plaintiff's diligence in obtaining service was in issue when the trial court dismissed plaintiff's first suit on August 25. Since defendants were not present at the proceeding, not having been served at the time, a Rule 103(b) dismissal would have had to be entered on the judge's own motion, after his finding that plaintiff failed to exercise due diligence. This was not done, and we refuse to hold either that the trial court had a mandatory duty to dismiss the cause with prejudice, or that it abused its discretion in the matter.
Having upheld the validity of the August 25 order, we further note that plaintiff had a year to refile her action under section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), which provides, in pertinent part:
"[If] the action is dismissed for want of prosecution * * * whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff * * * may commence a new action within one year or within the remaining period of limitation, whichever is greater, after * * * the action is dismissed for want of prosecution." (Emphasis added.)
Our supreme court has held that the right of a plaintiff to refile in such circumstances is absolute (Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill.2d 616, 620, 363 N.E.2d 796, 798), and that given the clear language of the statute, there is "no basis for engrafting upon section 24 an intent on the part of the General Assembly to exclude from its ambit all but the *182 `diligent suitor.'" (Franzese v. Trinko (1977), 66 Ill.2d 136, 140, 361 N.E.2d 585, 587.) The supreme court thus has interpreted section 24a as an extension of the applicable statute of limitation (Franzese). As such, "plaintiff must be accorded a reasonable time after refiling his complaint within which to obtain service." (Emphasis added.) Aranda, 66 Ill.2d 616, 620, 363 N.E.2d 796, 798.
In the pending case, plaintiff apparently obtained service in the September 5, 1978, refiled suit some time prior to Wilmot's motion, on March 1, 1979, to appear before the court in the original suit. Defendants could have challenged plaintiff's purported lack of diligence in the refiled suit. By choosing instead to challenge the dismissal order of the original suit defendants may have been concerned that the trial court would only assess the time span between plaintiff's filing of her second suit and the date of service on defendants in that case. Indeed, at least one supreme court justice has stated:
"It would seem the span of time between the filing of the first complaint and the service of summons in the second case is wholly immaterial. Even if the first complaint is dismissed for want of prosecution long after the statute of limitations has expired, the General Assembly in the exercise of its constitutional powers has granted plaintiff an absolute right to refile within one year from the date of dismissal." (Aranda v. Hobart (1977), 66 Ill.2d 616, 621, 363 N.E.2d 796, 799 (Dooley, J., specially concurring).)
Following this rationale, defendants' likelihood of prevailing on a Rule 103(b) motion in the refiled suit may have appeared slight. We are not required to determine that issue, however, as the refiled suit is not before us on this appeal. Nevertheless, we point out that the Aranda court's majority left open the question whether or not the trial court may consider an overall time span between the filing of the first complaint and the ultimate service of summons in the second case when assessing plaintiff's diligence. (Aranda, 66 Ill.2d 616, 620, 363 N.E.2d 796, 799.) The court added a qualification, however:
"[T]he period of time within which plaintiff must obtain service following the refiling of his suit under section 24 cannot be so abbreviated as to make the right granted by that section meaningless." 66 Ill.2d 616, 621, 363 N.E.2d 796, 799.
We believe that the necessary inference of the supreme court's reasoning in Aranda and Franzese is that a plaintiff's right to refile under section 24a of the Limitations Act reflects an important legislative policy to permit cases to be determined on their merits when possible. (See Roth v. Northern Assurance Co. Ltd. (1964), 32 Ill.2d 40, 48, 203 N.E.2d 415.) Adopting defendants' construction of Rule 103(b) under the circumstances of this case would conflict with that policy.
*183 For the reasons set forth, we conclude that the trial court properly denied defendants' motions for leave to file appearances and to amend the August 25, 1978, order.
Affirmed.
SULLIVAN, P.J., and LORENZ, J., concur.
NOTES
[1]  Chicago Metropolitan Ski Council adopted Wilmot's brief on appeal. There is no indication in the record that the other defendant, National Ski Patrol Association, has joined in this appeal.
[2]  In general, a judgment is void only if the court lacks jurisdiction over the subject matter or the person, or if the judgment is procured by fraud, but it is not void if merely erroneous, even though the judgment is so defective that it would be set aside upon proper mode of review. Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App.3d 176, 372 N.E.2d 965.


3 A.3d 1226 (2010)
203 N.J. 437
STATE
v.
BROWN.
Nos. C-15 September Term 2010, 065825
Supreme Court of New Jersey.
September 10, 2010.
Petition for Certification Denied.


427 So.2d 55 (1983)
Etienne PELLEGAL, Jr. and Joyce Trouillet, Wife of Etienne Pellegal, Jr., Individually and as Administrators of the Estate of Their Minor Child, Todd Lance Pellegal.
v.
Eugene DUREAU (Ralph Ferranto, International Surplus Lines, Inc. Herman Schoenberger, Sheriff, Parish of Plaquemines, and the Sheriff's Office for the Parish of Plaquemines, State of Louisiana).
No. CA 0227.
Court of Appeal of Louisiana, Fourth Circuit.
February 3, 1983.
*56 Frederick J. Gisevius, Jr., David E. Caruso, Jr., New Orleans, for plaintiffs-appellants.
A.W. Wambsgans, Cronvich, Wambsgans & Michalczyk, Metairie, for defendants-appellees.
Before REDMANN, SCHOTT and WILLIAMS, JJ.
SCHOTT, Judge.
This is a suit for damages sustained by plaintiff, Todd Lance Pellegal, in an accidental shooting by Eugene Dureau. Joined as defendants were Ralph Ferranto, Chief Deputy Sheriff of Plaquemines Parish, Herman Schoenberger, the Sheriff, and International Surplus Lines, an insurer, on the ground that Ferranto was negligent in supplying Dureau with the gun when he should have known that Dureau was incompetent and that Schoenberger was vicariously liable for Ferranto's negligence. Plaintiff's case against these defendants was dismissed on their motion for summary judgment and he has appealed. The issue is whether the documents of record exclude all genuine issues of material fact, such as to entitle defendants to a summary judgment under LSA-C.C.P. Art. 966.
A motion for summary judgment should be granted only if the pleadings, depositions and affidavits show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. Only when reasonable minds must inevitably conclude that the mover is entitled to a judgment as a matter of law on the facts before the court is a summary judgment warranted. The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover and any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Chaisson v. Domingue, 372 So.2d 1225 (La.1979). With these principles in mind we must consider the record in this case which consists of a deposition of Dureau, affidavits by Ferranto and Schoenberger, and countervailing affidavits in behalf of plaintiff by Leonard Riley and Etienne Pellegal, Jr., the plaintiff's father.
*57 The uncontested facts are these: In November, 1977, Dureau was showing a .22 caliber gun to plaintiff, who was then a minor, when the gun fired and struck the minor. Dureau was a 76-year old elected constable in Plaquemines Parish and also held a card signed by Schoenberger designating him as a special deputy sheriff of Plaquemines Parish. A few months before this incident the gun was given to Dureau by Ferranto at the sheriff's office. The gun had a "hair trigger" so that it was easily fired.
Plaintiff alleged that Ferranto was liable because he should have known that Dureau was incompetent to use the pistol and that Schoenberger was vicariously liable for Ferranto's negligence and primarily liable for his own negligence in failing to establish guidelines for the distribution of fire arms by his personnel. When this case was previously before this court on an exception of no cause of action filed by defendants and sustained by the trial judge another panel held that these allegations did state a cause of action against defendants and reversed the trial court. 410 So.2d 350 (No. 12534 on the docket, decided February 9, 1982).
The specific question before us now is whether this alleged constructive knowledge by Ferranto of Dureau's incompetence is left at issue considering the documents in the record.
In his affidavit Ferranto stated that during the many years he knew Dureau he never engaged in any conduct which led him to believe that Dureau had any difficulty understanding conversations or ideas and he had no reason to suspect any physical or mental infirmities on the part of Dureau. Schoenberger stated that he was well aware of Dureau's mental and physical capabilities but never had any reason to suspect that he had any physical or mental infirmities, but rather Dureau always appeared to be reasonable and rational. While these affidavits might compel the conclusion that Ferranto had no actual knowledge of Dureau's incompetence, the issue is constructive knowledge, i.e., whether he should have known. The next question is whether the countervailing affidavits of Riley and Pellegal place Ferranto's constructive knowledge at issue considering those affidavits in the most favorable light in plaintiff's favor and resolving every doubt in his favor. Much in the affidavits is conclusory and many of the facts mentioned do not seem to support a conclusion of incompetence, such as Dureau's forgetfulness mentioned by Riley. However, Riley stated that he often saw Dureau pull out a gun and wave it around in a public place and Pellegal stated that on several occasions he saw Dureau stopping traffic on the highway at many locations within the parish by standing in the roadway and waving his hands for no reason whatsoever and after stopping a given automobile Dureau "just said he wanted to see how they were doing."
We have concluded that these affidavits, although weak, place at issue Ferranto's constructive knowledge of Dureau's alleged incompetence at the time he supplied Dureau with this gun. The real test for the validity of a summary judgment is whether there is any factual issue to go to the trier of fact, in this case a jury. Plaintiff's countervailing affidavits demonstrate that he will be able to place at least one witness on the stand who will testify to bizarre behavior on Dureau's part on more than one occasion in public places. From this testimony a jury may infer that Ferranto as chief deputy of the parish should have known about this bizarre behavior and inquired into his competence to possess this dangerous weapon. A motion for summary judgment is not a substitute for a trial, and while it may appear that plaintiff will not prevail at the trial of the case this does not warrant the rendition of a summary judgment depriving plaintiff of a trial. Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4th Cir.1976).
Having concluded that the summary judgment was improperly granted in favor of Ferranto we must consider Schoenberger's position. The record does not indicate that he had any knowledge of Ferranto's giving this gun to Dureau but there is sufficient *58 documentation to place at issue his vicarious liability for Ferranto's alleged negligence. The gun was apparently the property of the sheriff's office and the conversation leading up to Ferranto's giving the gun to Dureau as well as the physical transfer of the gun took place in the sheriff's office. The inference is clear that Ferranto was motivated by his desire to provide some security to his fellow officer. If it appears that Ferranto was acting in his official capacity as chief deputy sheriff, Schoenberger would be liable in his official capacity as sheriff, although not in his personal capacity, for Ferranto's conduct. Jenkins v. Jefferson Parish Sheriff's Office, 402 So.2d 669 (La.1981).
Defendants make much of the fact that Dureau was a constable of the parish and as such entitled to carry a concealed weapon. They contend that Dureau's right to have the gun exempted Ferranto from inquiring into Dureau's competence to have it. The flaw in this argument is that Ferranto and Schoenberger had no obligation whatsoever to supply Dureau with the gun. If we assume that Dureau was obviously incompetent and that Ferranto had actual knowledge of his condition Ferranto would surely have breached a duty to the public by furnishing him with the gun knowing that he was incompetent. The fact that Dureau might get a gun elsewhere would not excuse Ferranto from supplying the gun to him under these circumstances. The same logic applies in the case of Ferranto's alleged constructive knowledge of Dureau's incompetence.
Finally, we have considered the question that the majority of the people of the parish elected Dureau to this position as they had for some 40 years so that they must not have considered him incompetent at the time of the last election prior to this incident. Thus, how can it be said that Ferranto should have known of Dureau's incompetence! This might be important evidence for the jury to consider at trial but it still does not eliminate the issue of constructive knowledge on Ferranto's part. Plaintiff may be able to prove at trial that Dureau was incompetent even though elected to the office and that his incompetence was so widely known that Ferranto should have known about it, especially considering his position as chief deputy sheriff. Again, we do not suggest that plaintiff can prove these points but only that he is entitled to a trial on the merits.
Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff and against defendants, overruling their motion for summary judgment. The case is remanded to the trial court for further proceedings. The costs of this appeal are taxed against defendants and all other costs are to await the outcome of the case.
REVERSED AND REMANDED.


666 S.E.2d 890 (2008)
STEWART
v.
ESTATE OF BREWINGTON EX REL. HARTLEY.
No. COA08-401.
Court of Appeals of North Carolina.
Filed October 7, 2008.
Certification Date October 27, 2008.
Case reported without published opinion. Affirmed.