Opinion
CIV NO.: 2:14-243 WBS DB
11-23-2016
LINDSEY SHAMBERGER, as an individual and on behalf of her minor son, E.C., Plaintiffs, v. DANA TELLO, Defendant.
ORDER
Plaintiffs Lindsey Shamberger and her minor son E.C. brought this action against Defendant Dana Tello, alleging that defendant conducted an unreasonable search of their residence in violation of their constitutional rights under 42 U.S.C. § 1983. (Compl. ¶ 9 (Docket No. 1).) Defendant moved for summary judgment or, alternatively, summary adjudication on September 30, 2016. (Def's Mot. (Docket No. 23).) After defendant filed the Motion, plaintiff Lindsey Shamberger agreed to be dismissed from the action. (Docket No. 27.) The parties stated in a stipulation that they intend "to effectuate the dismissal and/or compromise of the claims of Plaintiff E.C." as well. (Docket No. 30 at 2.) To date, however, no dismissal has been filed for E.C.
No guardian ad litem was ever appointed or offered for E.C. E.C. cannot proceed in this action by himself. See Fed. R. Civ. P. 17(c)(2) ("The court must appoint a guardian ad litem--or issue another appropriate order--to protect a minor . . . who is unrepresented in an action."); Johns v. Cty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) ("Because [plaintiff] is a minor, he lacked the capacity to sue on his own."). Where no guardian ad litem has been offered for a minor, the court may dismiss the minor's case. See M. L. v. Barth, No. 14-CV-05423-LHK, 2015 WL 5785550, at *3 (N.D. Cal. Oct. 5, 2015) (dismissing action where no guardian ad litem was offered for minor plaintiff); Watson v. Cty. of Santa Clara, 468 F. Supp. 2d 1150, 1155 (N.D. Cal. 2007) (same); L.S. ex rel. R.S. v. Panama Buena Vista Union Sch. Dist., No. 1:12-CV-00744 LJO, 2012 WL 3236743, at *2 (E.D. Cal. Aug. 6, 2012) ("[T]he matter will not proceed unless/until the child is properly appointed a guardian ad litem."). Accordingly, the court will dismiss E.C. from this action.
Because no plaintiff remains in this action, the court will deny defendant's Motion as moot.
IT IS THEREFORE ORDERED that this action be, and the same hereby is, DISMISSED without prejudice;
AND IT IS FURTHER ORDERED that defendant's Motion for summary judgment or, alternatively, summary adjudication (Docket No. 23) be, and the same hereby is, DENIED AS MOOT. Dated: November 23, 2016
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE