Opinion
NO. CIV. S-11-2284 LKK/GGH
01-12-2012
HERMAN FRANCK, Plaintiff, v. YOLO COUNTY, PATRICK S. BLACKLOCK, COUNTY ADMINISTRATOR; EDWARD G. PRIETO, YOLO COUNTY SHERIFF, Defendants.
ORDER
Plaintiffs in this case are minor children who challenge two Yolo County ordinances that restrict dog barking and dog roaming. Plaintiffs assert that the ordinances violate the Takings and Supremacy clauses of the U.S. Constitution. Pending before the court is a motion for a preliminary injunction to enjoin enforcement of the ordinances at issue, and a motion by defendants to dismiss the Second Amended Complaint. Also pending is an application by Herman Franck to be appointed as guardian ad litem to the plaintiffs, who are his children.
I. Background
Plaintiffs are minor children and are the owners, of two Dalmatians, Spot and Diamond. Plaintiffs would like to walk their dogs off leash in an area near their home in West Sacramento. That area is subject to two county ordinances, Sec. 6-1.401 and Sec. 6-1.403, which prohibit dog roaming and habitual loud dog barking, respectively. Plaintiffs allege that they would like their dogs to be in compliance with the anti-barking ordinance, but that they do know now how to keep their dogs in compliance. Plaintiffs seek to have enforcement of the ordinances permanently enjoined.
B. Procedural Background
The original and first amended complaints in this case named Herman Franck, father of the two current plaintiffs, as the sole plaintiff. Herman Franck is an attorney. Franck filed a Seconded Amended Complaint on November 3, 2011, in which he substituted his two minor children in as plaintiffs, and removed himself as a party to the action. Mr. Franck remains the attorney for his plaintiff children, and has applied to be their guardian ad litem. In that application, Mr. Franck asserts that he is the father of Alex and Adam Franck, that they are both minor children who reside with Mr. Franck and his wife Sabrina Q. Chen in West Sacramento.
In the Original and First Amended Complaints, plaintiff asserted that four citations had been issued against Mr. Franck for violations of the dog roaming and dog barking ordinances. The Second Amended Complaint makes no mention of those citations, as they are against Mr. Franck and not his minor children. Defendants contend that the substitution of his two minor children in as plaintiffs is "an attempt to avoid the compelling abstention arguments made in response to Herman Franck's first attempt to obtain a preliminary injunction," the pending civil violations against Herman Franck. Mot. to Dismiss 2.
Pursuant to Fed. R. Civ. P. 17(c)(2), the court must appoint a guardian ad litem to protect a minor who is unrepresented in an action. Without a properly appointed guardian ad litem, the current plaintiffs, who are minor children, may not commence suit. Fed. R. Civ. P. 17(c).
The court is not convinced that Mr. Franck's motivation in the instant application is to protect the minor plaintiffs. In the application, Mr. Franck made no assertion that he would protect the minor children. Additionally, the court shares defendant's suspicion that Mr. Franck's motivation in substituting his minor children in as plaintiffs is to skirt the abstention issue.
II. Conclusion
Accordingly, the court ORDERS as follows:
[1] Plaintiffs' application for appointment of Herman Franck as Guardian Ad Litem, ECF No. 27, is DENIED.
[2] Herman Franck MAY file a new application. If he chooses to do so, he SHALL address the court's concern regarding the issue of abstention.
[3] The motion for a preliminary injunction, ECF No. 22, and motion to dismiss, ECF No. 34, are STAYED pending appointment of a guardian ad litem for the plaintiffs.
[4] The hearing currently scheduled on those motions on January 17, 2012 is VACATED.
IT IS SO ORDERED.
____________________
LAWRENCE K. KARLTON
SENIOR JUDGE
UNITED STATES DISTRICT COURT