Opinion
Civil Action No. SA-05-CA-0239-XR.
November 1, 2005
ORDER
Before the Court is Defendant San Antonio Independent School District's Motion for Summary Judgment as to the claims of D.B., individually, filed September 9, 2005 (docket no. 15).
Plaintiffs allege that on or about November 11, 1999, and on other occasions, John Mass, while then an employee of the SAISD, sexually assaulted N.B, a middle school student while she was on school property. Plaintiffs allege that the SAISD was negligent in various respects, that Mass assaulted N.B., and that the SAISD violated N.B.'s state and federal constitutional rights, her federal civil rights and Title IX rights.
SAISD seeks summary judgment arguing that any claims asserted by D.B. in her individual capacity are barred by limitations. SAISD argues that D.B. was aware of the facts in this case as early as February 28, 2000, but failed to file any lawsuit until August 29, 2003. Plaintiff D.B., in her individual capacity, concedes this point. Accordingly, summary judgment is proper as to any claims filed by D.B., in her individual capacity, against the SAISD.
In addition, the SAISD argues that N.B. attained majority status as of February 24, 2004, and that she suffers no disability from proceeding in this case on her own as an adult. Plaintiff D.B. seeks leave of court to amend the complaint in this case to reflect that "she remains as part of the action as next friend of N.B. for the period of time that N.B. was a minor and only to the extent that she may receive costs incurred during the period of time N.B. was a minor." Plaintiff D.B.'s request to amend the complaint is denied. The role of "next friend" enables an injured minor to bring suit. The representative brings suit on behalf of the minor. See Fed.R.Civ.P. 17(c). The real party in interest always remains the minor plaintiff. Upon attainment of majority age the former minor may discontinue the suit or continue the suit in her own name. The authority of a representative under Rule 17(c) is dependent upon the continued disability of the person being protected. State law controls the question whether the represented party's disability has ended during the action and once it is determined that this has occurred, the representative loses authority to maintain the suit on behalf of the former minor. Wright Miller, 6A Fed. Prac. Proc. Civ.2d § 1570. See also Spell v. William Cameron Co., 131 S.W. 637 (Tex.Civ.App. 1910); Oliver v. Dallas I.S.D., 2003 WL 22272304 (N.D. Tex. Sep. 29, 2003).
Summary judgment is GRANTED as to any claims filed by D.B., in her individual capacity, against the SAISD (docket no. 15). Plaintiff D.B.'s motion for leave to file an amended complaint (docket no. 23) is DENIED.