Kormylo v. Forever Resorts, LLC

Full title: NICHOLAS KORMYLO, M.D.; KIMBERLY KORMYLO; and BRYCE KORMYLO, by and…

Court: United States District Court, Ninth Circuit, California, S.D. California

Date published: Nov 4, 2014

13cv511 JM (WVG) (S.D. Cal. Nov. 4, 2014)

Opinion

NICHOLAS KORMYLO, M.D.; KIMBERLY KORMYLO; and BRYCE KORMYLO, by and through his guardian ad litem KIMBERLY KORMYLO, Plaintiffs, v. FOREVER RESORTS, LLC, dba CALVILLE BAY RESORT & MARINA; and KENNETH WILLIAMS, Defendants. FOREVER RESORTS, LLC, dba CALVILLE BAY RESORT & MARINA; and KENNETH WILLIAMS, Third-Party Plaintiffs, v. SCOTT PETERSON NEELY, Third-Party Defendant. FOREVER RESORTS, LLC, dba CALVILLE BAY RESORT & MARINA; and KENNETH WILLIAMS, Third-Party Plaintiffs, v. BOY SCOUTS OF AMERICA; BOY SCOUTS OF AMERICA SAN DIEGO-IMPERIAL COUNCIL; MARK ALLEN; WILLIAM DALE; KELLY GARTON; TAYLOR HETHERINGTON; ROBERT JAFEK; JAMES MICHAEL LEDAKIS; ROGER MCCLOSKEY; ERIC JONATHAN SANFORD; ROBERT SHUMWAY; DAVID TAYLOR; and CHRIS WADDELL, Third-Party Defendants. No. 13cv511 JM (WVG) United States District Court, S.D. California. November 4, 2014

          ORDER APPOINTING GUARDIAN A.D. LITEM FOR THIRD-PARTY DEFENDANT TAYLOR HETHERINGTON

          JEFFREY T. MILLER, District Judge.

         On August 25, 2014, Forever Resorts, LLC, and Kenneth Williams filed a first amended third-party complaint against various third-party defendants, including Taylor Hetherington. (Doc. No. 58.) On October 10, 2014, Thomas Max Hetherington II filed an ex parte application to be appointed as Taylor Hetherington's guardian ad litem. (Doc. No. 87.) The attached declaration states that Thomas is Taylor's father and that Taylor was born on May 27, 1986. Taylor is, therefore, 28 years old. The declaration states, however, that Taylor "was born with severe brain damage resulting in serious developmental disabilities severely affecting, among many things, his ability to communicate and interact with others, " and that Taylor "has only the mental capacity of a teenager." (Doc. No. 87-1 at 2-3.) The application states further that "Taylor has no legal or general guardian." (Doc. No. 87 at 2.) The application is unopposed.

         Pursuant to Federal Rule of Civil Procedure 17(c)(2), "[a] minor or incompetent person who does not have a duly appointed representative may sue... by a guardian ad litem. The court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in an action." The court has an obligation to consider whether such a person is adequately protected and "broad discretion" whether to appoint a guardian. United States v. 30.64 Acres of Land , 795 F.2d 796, 805 (9th Cir. 1986).

         Having reviewed the application, including the declaration of Thomas Max Hetherington II, the court finds based on the uncontroverted evidence that Third-Party Defendant Taylor Hetherington is incompetent to act on his own behalf in this action. As such, Third-Party Defendant Taylor Hetherington lacks capacity to be sued in the absence of the guardianship ordered herein.

         Good cause appearing therefor, Thomas Max Hetherington II is appointed guardian ad litem for Taylor Hetherington.

         IT IS SO ORDERED.