                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 00-3834EA
                                   _____________

Steve Brown,                             *
                                         *
             Appellant,                  *
                                         * On Appeal from the United
      v.                                 * States District Court
                                         * for the Eastern District
                                         * of Arkansas.
Fifth Judicial District Drug             *
Task Force,                              *
                                         *
             Appellee.                   *
                                    ___________

                               Submitted: May 31, 2001
                                   Filed: July 2, 2001
                                    ___________

Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and FAGG,
      Circuit Judges.
                         ___________

RICHARD S. ARNOLD, Circuit Judge.

      Steve Brown, the "coordinator" for the Fifth Judicial District Drug Task Force,
brought this case under the Fair Labor Standards Act, claiming that the Task Force, his
employer, had failed to pay him for overtime. The complaint alleged the following
about the defendant:

                   The Defendant is a multi-governmental unit organized
             under the laws of the State of Arkansas as an interlocal
             cooperative consisting of Pope County, Arkansas, Franklin
             County, Arkansas, and Johnson County, Arkansas, together
             with the Cities of Russellville and Clarksville.


Complaint ¶ 3, Joint Appendix (J. A.) 1. The defendant filed a motion to dismiss under
Fed. R. Civ. P. 12(b)(6), arguing that it is not a legal entity capable of being sued. The
plaintiff did not respond to this motion. The District Court1 granted the motion and
dismissed the complaint. The plaintiff appeals. None of the arguments asserted by the
plaintiff on appeal was made below. Accordingly, our review is for plain error. We
hold that there was no plain error (if error there was at all), and affirm.

      The outcome of this case depends on the meaning of Fed. R. Civ. P. 17(b),
which provides, in pertinent part, as follows:

                    Capacity to Sue or be Sued . . . [C]apacity to sue or
             be sued shall be determined by the law of the state in which
             the district court is held, except (1) that a partnership or
             other unincorporated association, which has no such
             capacity by the law of such state, may sue or be sued in its
             common name for the purpose of enforcing for or against it
             a substantive right existing under the Constitution or laws of
             the United States . . ..


The District Court based its holding on the first part of the rule:

                     Defendant argues, and plaintiff does not dispute, that
             it is neither a natural nor an artificial person with a separate
             legal existence and it has not been granted statutory


      1
       The Hon. Susan Webber Wright, Chief Judge, United States District Court for
the Eastern District of Arkansas.

                                           -2-
             authority to sue or be sued; rather, it is an unincorporated,
             intergovernmental, multijurisdictional task force established
             to investigate and prosecute drug offenses in several
             counties together with the cities of Russellville and
             Clarksville.


Steve Brown v. Fifth Judicial District Drug Task Force, No. 4:00-CV-00647-SWW
(E.D. Ark., Oct. 12, 2000) (order).

        On appeal, the plaintiff does not contest the reasoning of the District Court, as
far as it went. He does assert that the Fifth Judicial District Drug Task Force was
created under an Arkansas statute, Ark. Code Ann. § 25-20-101 et seq., the Interlocal
Cooperation Act. The complaint did not so allege; neither did the plaintiff at any time
cite this statute in the District Court. The defendant, however, does not appear to
dispute that it was in fact organized under the law cited, so we proceed under that
assumption. The difficulty, however, from the plaintiff's point of view is that the statute
itself leaves it open to the governmental units who decide on joint action to establish
a separate legal entity, or not, to conduct the joint or cooperative undertaking,
according as their agreement may provide. The record does not contain the text of this
agreement. Indeed, the record is sparse, to say the least. It contains only four
documents, the complaint, the defendant's motion to dismiss, the defendant's brief in
support of the motion to dismiss, and the order of the District Court dismissing the
complaint. We have to believe that if the agreement among these three counties and
two cities in fact did establish a separate legal entity, the plaintiff would have brought
this fact to the attention of the District Court, or, in any event, of this Court. This has
not occurred.

       Instead, the plaintiff relies upon paragraph (1) of Rule 17(b). The defendant
Task Force, it is argued, is an "unincorporated association, which has no such capacity
by the law of such state" but "may sue or be sued in its common name for the purpose

                                           -3-
of enforcing . . . against it a substantive right existing under . . . laws of the United
States . . .." This case arises under the Fair Labor Standards Act, so a portion of this
provision is satisfied. But is the Task Force a "unincorporated association," as that
phrase is used in the Rule? In literal terms, it is: it is not incorporated, and it is a
grouping of governmental units for a common purpose, certainly within the outer limits
of the ordinary meaning of the word "association."

       So far, the plaintiff's theory is plausible. But is there "plain" error? United
States v. Olano, 507 U.S. 725, 734 (1993), defines plain error as follows:



                   The second limitation on appellate authority under
             Rule 52(b) is that the error be "plain." "Plain" is
             synonymous with "clear" or, equivalently, "obvious." . . .
             At a minimum, a court of appeals cannot correct an error
             pursuant to Rule 52(b) unless the error is clear under current
             law.

(Citations omitted.)

      Defendant argues that the "unincorporated association" provision applies only
to private parties, not governmental ones. A labor union, for example, is an
unincorporated association that can be sued under federal law. United Mineworkers
v. Coronado Coal Co., 259 U.S. 344 (1921). So is a local telephone cooperative.
Schmidt v. Peoples Telephone Union of Maryville, Missouri, 138 F.2d 13 (8th Cir.
1943). There is authority, however, that the questions of legal or juridical existence
and capacity to sue and be sued are distinct, and that a group of persons working
together for a common purpose must first be found to have legal existence before the
question of capacity to sue or be sued can arise. Roby v. The Corporation of Lloyd's,
796 F. Supp. 103, 109-10 (S.D. N.Y. 1992), aff'd, 996 F.2d 1353 (2d Cir.), cert.
denied, 510 U.S. 945 (1993). This case holds that Lloyd's of London, a group of

                                          -4-
syndicates active in the business of insurance, is not an "unincorporated association"
within the meaning of Fed. R. Civ. P. 17, because it has no legal existence apart from
the individuals who make it up. " '[U]nincorporated association' is a term of art —
every group that is not a corporation or partnership is not automatically an
unincorporated association." Id. at 110.

      In addition, authorities more directly in point appear to be uniform in holding that
drug task forces similar to the defendant in this case are not separate legal entities
subject to suit. Eversole v. Steele, 59 F.3d 710 (7th Cir. 1995); Hervey v. Estes, 65
F.3d 784, 792 (9th Cir. 1995); Dillon v. Jefferson County Sheriff's Department, 973 F.
Supp. 626 (E.D. Tex. 1997); Alexander v. City of Rockwall, No. CIV. A. 3:95-CV-
0489, 1998 WL 684255 (N.D. Tex., Sept. 29, 1998).

      In these circumstances, it seems to us that the District Court committed no error.
In any case, the error, if there was one, is certainly not "plain." Accordingly, the
judgment of the District Court, dismissing this complaint,2 must be and is

      Affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
        Perhaps the action could be re-filed directly against the five governmental
entities whose agreement created the Task Force. We express no view on that
question.

                                           -5-
