Opinion
CASE NO.: 8:10-cv-1893-T-23TBM.
December 17, 2010
ORDER
The plaintiffs, as the parents and natural guardians of T.H., move (Doc. 15) under Section 744.387, Florida Statutes, for appointment of a guardian ad litem in anticipation of a settlement with the School District of Sarasota County (the "School District"). The plaintiffs note that "[t]he Thirteenth Judicial Circuit of the State of Florida has jurisdiction to appoint a guardian for T.H., and [p]laintiff[]s are in the process of filing a petition for appointment of a guardian." The plaintiffs also request (Doc. 15) an extension of the time in which to file a second amended complaint "so that the Second Amended Complaint can omit Defendant School District as a party."
Section 744.387 requires court approval of a settlement on behalf of a ward or minor and, if the settlement amount exceeds $15,000.00, requires a legal guardianship. See also Fla. Stat. § 744.3025.
Under Rule 17(c), Federal Rules of Civil Procedure, a court must appoint a guardian ad litem to sue or defend on behalf of either a minor or an incompetent person if the minor or incompetent person lacks a general guardian or other qualified representative. In this action, however, the general guardians of T.H. sue on T.H.'s behalf, and Rule 17(c)(2) is inapplicable. Furthermore, even if the need to appoint a guardian ad litem under Rule 17(c) existed in this action, in federal court:
[t]he powers of a guardian ad litem are limited to protecting the legal rights of the disabled party in the particular litigation and no property may pass into the guardian's hands. As a result, if the infant or incompetent prevails, state practice may require a separate guardian to be appointed to receive payment of any award that may be involved.
6A WRIGHT MILLER, FEDERAL PRACTICE PROCEDURE § 1572 (3d ed.).
Accordingly, the motion (Doc. 15) for appointment of a guardian for the purpose of settlement is DENIED. Upon the appointment of a guardian by the state court, the guardian may seek the state court's authorization for the guardian to settle this action on specified terms. Upon the guardian's demonstrating the state court's and the guardian's consent to the settlement, the district court dismisses as contemplated in the settlement. The motion (Doc. 15) for an extension of time is also DENIED. The plaintiffs shall file a second amended complaint in accord with the December 10, 2010, order (Doc. 14) and may request dismissal of the action as to the School District upon approval of the proposed settlement.
ORDERED in Tampa, Florida, on December 17, 2010.