In Pennachietti v. Manfield, 2017 WL 6311646, at *1 (E.D.Pa., 2017), Judge Pappert denied a motion to dismiss filed by a manager of a tribal-based lender accused of issuing a usurious loan.
Daniel Pennachietti received an allegedly usurious loan through an internet website operated by Sovereign Lending Solutions, LLC, a title lending company established under the tribal law of the Lac Vieu Desert Band of Lake Superior Chippewa Indians. (Compl., at 1–2, ECF No. 1.) Pennachietti has not sued the Chippewa Tribe or Sovereign. Instead, he has sued Craig Mansfield, “a manager in charge of day-to-day operations” at Sovereign. . . .Mansfield contends that he is entitled to tribal sovereign immunity because he acted within the scope of his employment and in his official capacity as manager at Sovereign, and thus Sovereign is the real party in interest. . . Mansfield first contends that he is not the real party in interest because he acted within the scope of his employment as manager at Sovereign, and “Pennachietti never alleged that Mansfield acted independently to incur individual liability….” (Def.’s Mot. to Dismiss, at 14.) For his part, Pennachietti alleges that Mansfield is liable for participating and directing the conduct of Sovereign’s affairs and engaging in conduct which occurred while he was acting within the scope of his employment as manager of Sovereign. Both arguments miss the mark; Mansfield acting within the scope of his employment does not determine whether he or Sovereign is the real party in interest. See Lewis, 137 S.Ct. at 1288. This is a personal capacity suit to recover money damages solely from Mansfield for his personal actions, and extending tribal sovereign immunity to him simply because he was acting within the scope of his employment would extend that immunity beyond what common-law sovereign immunity principles would recognize for government employees. See id.at 1291–92. Mansfield also contends that he is not the real party in interest because he only ever acted in his official capacity as manager while employed at Sovereign. (Def.’s Mot. to Dismiss, at 15.) Because he was acting in his official capacity when the loan issued to Pennachietti, Mansfield argues that this is an official capacity suit and that he may not be held personally liable for those actions. That Mansfield was acting in his official capacity, however, does not make this an official capacity suit. Rather, as Hafer made clear, what matters is not the capacity in which Mansfield acted while employed by Sovereign, but rather the capacity in which he is currently being sued. See Hafer, 502 U.S. at 27. Here, Mansfield was sued in his individual capacity to recover for his actions of participating and directing the conduct of Sovereign’s affairs, conspiring to violate § 1962 and collecting usurious interest in excess of six percent annually. Pennachietti seeks to impose personal liability only upon Mansfield. Sovereign has not been named as a defendant, and any judgment against Mansfield will not require action by Sovereign. See Lewis, 137 S.Ct. at 1291 (quoting Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 687 (1949)). The principles of common-law sovereign immunity typically treat the source of funding as the most important factor to consider when determining whether sovereign immunity applies. Here, any judgment against Mansfield will implicate his personal assets and will not disturb the property or treasury of Sovereign. See id.; see also Carter, 181 F.3d at 347–48. For these reasons, Mansfield is the real party in interest and he is not entitled to tribal sovereign immunity.