Opinion
Case No. 19-cv-0930-BAS-WVG
05-29-2019
MASHOUNA ANDRADE, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING RENEWED EX PARTE MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM FOR MINOR PLAINTIFF
[ECF No. 8]
Plaintiff Davinity Andrade ("D.A."), proceeding with counsel, has renewed her ex parte motion for appointment of Raynisha Hensel as D.A.'s guardian ad litem on the ground that D.A. is an unrepresented minor. (ECF No. 8.) For the reasons herein, the Court grants the motion.
LEGAL STANDARD
Rule 17(c) establishes certain rules regarding representation of minors and competent persons in federal court actions. First, for individuals "with a representative," the Rule provides that "[t]he following representatives may sue or defend on behalf of a minor or an incompetent person: (A) a general guardian; (B) a committee; (C) a conservator; or (D) a like fiduciary." Fed. R. Civ. P. 17(c)(1). Second, for individuals "without a representative," the Rule provides that "[a] minor or incompetent person who does not have a duly appointed representative may sue by a next friend or by guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action." Fed. R. Civ. P. 17(c)(2) (emphasis added). Federal courts have broad "power to appoint a special representative for a minor" under the Rule. Elliott v. Versa CIC, L.P., 328 F.R.D. 554, 556 (S.D. Cal. 2018). "As a general matter, the decision whether to appoint a guardian ad litem is 'normally left to the sound discretion of the trial court.'" Id. (quoting United States v. 30.64 Acres of Land, 795 F.2d 796, 804 (9th Cir. 1986)).
DISCUSSION
An individual's capacity to sue is determined "by the law of the individual's domicile." Fed. R. Civ. P. 17(b). D.A. is under the age of 18 years old and therefore is a minor under California law, the state where D.A. is domiciled. Cal. Fam. Code § 6502. Thus, Rule 17(c) requires that D.A. sue either through one of the enumerated representatives or through a next friend or guardian ad litem. See Fed. R. Civ. P. 17(c). Appointment of Hensel is sought under Rule 17(c)(2) for a minor without representation. (ECF No. 8 at 5.) The ex parte motion indicates that Hensel is D.A.'s older sister, is not a party to this action and therefore lacks a conflict of interest, and Hensel is willing to serve as the guardian ad litem for D.A. (Id. at 6.) Hensel has submitted a signed declaration personally attesting to her willingness to serve as a guardian ad litem for D.A. for these reasons. (ECF No. 8-2.) Hensel is over 18 years old and thus is not a minor. In its discretion, the Court finds that it is appropriate to appoint Hensel as a guardian ad litem for D.A. solely for the purposes of this action.
CONCLUSION & ORDER
The present ex parte motion for appointment of Hensel as guardian ad litem for D.A. is GRANTED. (ECF No. 8.) The Court APPOINTS Raynisha Hensel as guardian ad litem for D.A. for the purposes of this action only. The Court further notifies Plaintiffs that a second mandatory screening order on the Amended Complaint (ECF No. 4) is forthcoming, as indicated in the Court's prior order dismissing the action without prejudice.
IT IS SO ORDERED. DATED: May 29, 2019
/s/ _________
Hon. Cynthia Bashant
United States District Judge