                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 7 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    WILLIAM ELEFANT,

                Plaintiff-Appellant,

    v.                                                    No. 99-1467
                                                    (D.C. No. 97-WM-2728)
    METROPOLITAN STATE COLLEGE                             (D. Colo.)
    OF DENVER,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , PORFILIO , and EBEL , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      William Elefant appeals from the dismissal with prejudice of his complaint

against Metropolitan State College of Denver (“Metropolitan”) for discrimination.

Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse.

                                           I.

      Mr. Elefant, appearing pro se, filed his complaint alleging age and sex

discrimination on December 26, 1996. On January 26, 1997, Metropolitan

specially appeared and moved to dismiss the complaint with prejudice pursuant to

Fed. R. Civ. P. 12(b)(2), (4), and (5). Specifically, Metropolitan alleged that it

“is not a legal entity capable of suit,” citing Colo. Rev. Stat. § 23-50-101, which

places Metropolitan under the control of the trustees of the state colleges in

Colorado (“trustees”) and empowers the trustees to be a party to all suits and

contracts of the denominated colleges.   See Appellant’s App. at 10. Because

Mr. Elefant had not served the trustees, Metropolitan further alleged lack of

personal jurisdiction, insufficiency of process, and insufficiency of service of

process.

      In his response to the motion to dismiss, Mr. Elefant argued that

section 23-50-101 did not provide that Metropolitan was not amenable to suit,

citing a Colorado federal district court case denying a similar motion. He

requested the court deny the motion to dismiss and allow him to proceed with the

prosecution of his claims, stating that “[i]f the Court finds that the service of


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process must be made on any person” other than the person served, he would do

so. Id. at 21. Metropolitan later amended its motion to request dismissal without

prejudice. The magistrate judge to whom the motion was referred recommended

denying the motion to dismiss, noting that the authority offered by Metropolitan

was “not particularly enlightening,” and that the federal courts had determined

that Metropolitan is a statutory employer for Title VII purposes.      Id. at 32.

Because the magistrate judge was “unable to find any authority which requires

that the board of trustees be substituted for [Metropolitan] as defendant in this

action,” he concluded that Mr. Elefant could properly maintain his Title VII and

ADEA claims against the college.      Id. at 32-33.

       The district court disagreed, concluding that Metropolitan was not an entity

capable of being sued because “[n]owhere in the statutes is [Metropolitan] given

distinct legal status, recognized as an official state agency, or . . . given any

authority to sue or be sued.”   Id. at 56-58. Citing Roberts v. State Board of

Agriculture , 998 F.2d 824, 826 & n.1 (10th Cir. 1993), the court dismissed the

suit with prejudice. In his motion for reconsideration, Mr. Elefant,     inter alia ,

(1) brought to the court’s attention the fact that Metropolitan had amended its

motion to one for dismissal without prejudice; (2) asked the court to allow him to

add the trustees as defendants and serve them within a reasonable period of time

instead of dismissing the complaint; and (3) demonstrated to the court that


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Metropolitan had, as sole plaintiff and in its own name, brought suit in the courts,

which indicated it is a legal entity capable of suing and being sued.       See

Appellant’s App. at 60-61, 66. The district court denied the motion for

reconsideration without further analysis.     See id. at 85.

                                             II.

       On appeal, Mr. Elefant alleges both substantive and procedural error. That

is, he asserts that the district court erred in concluding that Metropolitan is not an

entity amenable to suit and that the court also erred by dismissing the complaint

instead of allowing him to amend to add the trustees as a party. Significantly,

Metropolitan does not address Mr. Elefant’s substantive argument that his case is

distinguishable from Roberts and the other case authority relied on by the district

court because the legislature has granted the trustees authority to delegate their

power over college personnel matters, including the power to contract and appoint

and terminate professors, to the chief executive officer of the college and, in turn,

to whomever the chief executive officer delegates.       See Colo. Rev. Stat.

§ 23-5-117 (1999). Mr. Elefant implicitly argues that, by empowering the

delegation of the trustees’ authority to contract to Metropolitan officials, the

legislature has also necessarily endowed Metropolitan with the right to sue and be

sued on those employment contracts. Mr. Elefant’s argument is not without

support. Cf. United Mine Workers of Am. v. Coronado Coal Co.            , 259 U.S. 344,


                                             -4-
390-91 (1922) (stating that equitable considerations also control whether an

unincorporated entity may be sued in its own name; noting that statutes created a

“self-acting body with great funds to accomplish their purpose,” and that the

union was capable of committing torts; and holding that unincorporated labor

union was therefore suable in tort);    Clark v. Grand Lodge of Bhd. of R.R.

Trainmen , 43 S.W.2d 404, 409 (Mo. 1931) (noting that even though

unincorporated association had no express statutory right to sue, statutes that

authorized it to make insurance contracts by necessary implication also granted it

legal capacity to be sued on those contracts). The ramifications of concluding

that a college is or is not a legal entity capable of suing or being sued are serious

and long-reaching. Because we reverse on other grounds, we postpone resolution

of the issue to a case in which it has been thoroughly briefed.

       In regard to Mr. Elefant’s procedural argument, Metropolitan implies that

dismissal was his fault because he had plenty of time to amend but did not.         See

Appellee’s Br. at 17.   We disagree. Clearly, Mr. Elefant was awaiting the court’s

permission to amend his complaint to add and serve the trustees. The grant of

leave to amend the pleadings is within the discretion of the trial court,     see

Ketchum v. Cruz , 961 F.2d 916, 920 (10th Cir.1992), but “leave shall be freely

given when justice so requires,” Fed. R. Civ. P. 15(a). Refusing leave to amend

is generally justified only upon a showing of “undue delay, bad faith or dilatory


                                             -5-
motive, . . . repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party, . . . [or] futility of amendment.”

Foman v. Davis , 371 U.S. 178, 182 (1962). The district court gave no reason for

denying Mr. Elefant’s request for leave to amend, and there is nothing in the

record justifying the denial. Our concept of justice requires allowing a pro se

plaintiff to timely amend to add a proper party when there is no prejudice to the

opposing parties. Further, our rule requiring courts to liberally construe pro se

pleadings and hold them to less stringent standard than formal pleadings drafted

by lawyers applies to all proceedings involving pro se litigants.       See Hall v.

Bellmon , 935 F.2d 1106, 110 & n.4 (10th Cir. 1991);        see also Reynoldson v.

Shillinger , 907 F.2d 124, 126 (10th Cir. 1990) (noting that pro se plaintiffs are

often unaware of technical pleading requirements and stating that if “‘it is at all

possible that the party against whom the dismissal is directed can correct the

defect in the pleading . . . , the court should dismiss with leave to amend’”).       The

district court abused its discretion in denying Mr. Elefant’s request to amend and

in dismissing his complaint with prejudice.




                                             -6-
      The judgment of the United States District Court for the District of

Colorado is REVERSED and the case REMANDED for further proceedings

consistent with this order and judgment.



                                                   Entered for the Court



                                                   Deanell Reece Tacha
                                                   Circuit Judge




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