Opinion
C.A. No. 05C-08-036 (JTV).
Submitted: July 28, 2006.
Decided: October 30, 2006.
Upon Consideration of Plaintiff's Motion To Dismiss a Counterclaim.
GRANTED.
Jeffrey J. Clark, Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Plaintiff.
William J. Cattie, III, Esq., Rawle Henderson, LLP., Wilmington, Delaware. Attorney for Defendants.
ORDER
Upon consideration of the plaintiff's motion to dismiss a counterclaim, the defendant's opposition, and the record of the case, it appears that:
1. The plaintiff in this case is a minor named Megan Jones, who brings the action by her Guardian Ad Litem, Katie Jones ("Jones"). The defendants are Kidz Kottage Club, Kreative Kids, Bertha Wyatt and Deborah Minner ("defendants"). The action alleges the plaintiff was sexually assaulted at the defendants' day care facility.
2. In their answer to the complaint, the defendants included a counterclaim against the Guardian Ad Litem, Katie Jones, for an alleged contractual debt. Specifically, the defendants contend that Jones, who is the plaintiff's mother, was an employee of defendant Kreative Kids. During that time, the defendants allege, they advanced Jones $2,225 which she refused to repay despite requests that she do so.
3. The plaintiff contends that the counterclaim should be dismissed because Guardian Ad Litem Jones is not a real party in interest and is included in the lawsuit only because the plaintiff is a minor. The plaintiff further contends that asserting a contract/debt action where the original claim is one for personal injury and mental anguish is not proper. The plaintiff argues the counterclaim is a thinly veiled attempt to interject unrelated confusing issues and that joinder of this claim would not be appropriate even if raised in a procedurally proper manner.
4. The defendants contend that one of their affirmative defenses is that the alleged assault took place at Jones' residence and that she knew something occurred between the minor plaintiff and another child within moments of the defendants becoming aware of the incident. They argue she failed to report this to state authorities until after defendants asked her to repay the loan. This, the defendants claim, raises an inference that filing the present lawsuit was done in retaliation.
5. The only thing presently before me is the propriety of a defendant filing a "counterclaim" against a Guardian Ad Litem.
6. A counterclaim is a claim against an opposing party. It is well settled that a Guardian Ad Litem, also known as a Next Friend, is not a party to the proceeding. The Guardian Ad Litem is simply a representative or person appointed to look after the interest of a real party in interest who, for some reason, is under a legal disability, such as infancy.
Superior Court Civil Rule 13.
Cohee v. Ritchey, 150 A.2d 830 (Del.Super. 1959).
7. Since the Guardian Ad Litem, Katie Jones is not a party to the action, she cannot be the subject of a counterclaim.
8. Therefore, the plaintiff's motion to dismiss the counterclaim is granted .