Opinion
Case No.: 16cv1313-H-MDD
10-10-2017
IN RE: COMPLAINT AND PETITION OF KDME, INC. AS OWNER AND CUSTODIAN OF A CERTAIN 2008 HURRICAN SUNDECK 195 FOR EXONERATION FROM OR LIMITATION OF LIABILITY
REPORT AND RECOMMENDATION APPROVING STIPULATED MINORS' COMPROMISE
[ECF NO. 14]
On June 1, 2016, Petitioner KDME ("Petitioner") filed a Complaint for Exoneration from or Limitation of Liability. (ECF No. 1). "Petitioner filed the complaint as owner of a 2008 Hurricane Sundeck 195 vessel, which was allegedly involved in an incident on or near San Diego Bay." (ECF No. 6 at 1). On September 13, 2017, Petitioner and Jakob Avitan, Oshrat Avitan, Amit Avitan (a minor), Ido Avitan (a minor) and Roy Avitan (a minor) settled this action and filed a Stipulation for an Order Approving Minor's (sic) Compromise. (ECF No. 14). Petitioner and the Avitans "agree to mutually release each other in exchange for a waiver of all costs and attorneys fees." (Id. at 1).
Petitioner KDME, Inc., is a corporation incorporated under and existing pursuant to the laws of California. (ECF No. 9 at 2).
Attached as Exhibit B to the Stipulation for an Order Approving Minor's Compromise is an Application for Appointment of Guardian Ad Litem and Compromise of Minor's Claims. The motion seeks to appoint Jakob and Oshrat Avitan as guardians ad litem for their named minor children Amit, Ido and Roy Avitan. (Id. at Ex. B at 12). --------
It is well settled that the district court has a special duty, rising out of Federal Rule of Civil Procedure 17(c), to safeguard the interests of litigants who are minors within the context of settlements proposed in civil suits with minors and plaintiffs. The duty obliges the court to "conduct its own inquiry to determine whether the settlement serves the best interests of the minor." Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978). The Ninth Circuit has held that this "duty requires only that the district court determine whether the net amount distributed to [a] minor plaintiff in the proposed settlement is fair and reasonable, without regard to the proportion of the total settlement value. . . ." Robidoux v. Rosengren, 638 F.3d 1177, 1179 (9th Cir. 2011). Here, the Court has considered the Petition, the supplemental information and after conducting an independent inquiry and evaluation of the proposed settlement, the Court finds that the proposed settlement is fair and reasonable and serves the best interest of Amit, Ido and Roy Avitan, the minors in this case.
IT IS HEREBY RECOMMENDED that the settlement between Petitioner KDME, Inc. and Amit Avitan (DOB 7/2/2000), Ido Avitan (DOB 3/31/2005); and Roy Avitan (DOB 12/25/2007) be approved. The Settlement as to Petitioner and the named minor Avitan children is fully set forth as Exhibit A (Settlement Agreement and Mutual Release and Waiver) in the Stipulation of the Parties for an Order Approving Minor's Compromise. (ECF 14, Ex. A at 7).
The Settlement "fully and forever" releases and discharges "each other from any and all manner of actions, suits, liens, debts, damages, judgments, injuries, claims, torts, contracts, controversies, agreements and demands whatsoever. . . ." (Id. at 8). The parties also "agree to waive their respective costs and attorney's fees incurred in connection with the Incident and/or the Lawsuit." (Id. at 7).
IT IS FURTHER RECOMMENDED that Jakob and Oshrat Avitan be appointed guardians ad litem for their minor children Amit, Ido and Roy Avitan, in addition, Jakob Avitan shall be authorized to execute any and all documents reasonably necessary to carry out the terms of the settlement.
This Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any written objections to this report must be filed with the court and served on all parties no later than October 24, 2017. The document should be captioned "Objections to Report and Recommendation."
Any reply to the objections shall be filed with the court and served on all parties no later than October 31, 2017. The parties are advised that failure to file objections within the specified time may waive the right to those objections. Dated: October 10, 2017
/s/_________
Hon. Mitchell D. Dembin
United States Magistrate Judge