McCall, et al. v. Houston County, et al.
Filing
212
OPINION AND ORDER it is the ORDER, JUDGMENT, and DECREE of the court as follows: (1) Plaintiff Tracey McCall's 207 motion under Rule 60(b) for leave to file a motion a for pro ami hearing is treated as both (a) a motion for leave to file a mot ion for a pro ami hearing and (b) a Rule 60(b) motion to set aside the dismissal judgment in this case. (2) Plaintiff McCall's 207 motion for leave to file a motion for a pro ami hearing and 208 motion for a pro ami hearing are conditionall y granted. (3) William C. Maddox, Esq., 567 West Main Street, Dothan, Alabama, 36301, 334.678.8100, <chrismaddox@graceba.net>, is appointed as guardian ad litem for the minor in this case. (4) By agreement of the parties, the defendants ar e to pay the attorney's fees and expenses of the guardian ad litem, with those fees and expenses not to be subtracted from the amount of the proposed settlement. (5) The clerk of the court is to arrange for the guardian ad litem to receive a cop y of the file in this case. (6) An on-the-record hearing on the Rule 60(b) 207 motion to set aside the dismissal judgment and, if granted, on the proposed fairness of the settlement to the minor is set for June 16, 2015, at 10:00 a.m. Counsel for t he parties are to arrange for the hearing to be conducted by telephone. Counsel for all parties, the minor's mother, and the guardian ad litem are to be available for the hearing. (7) On or before June 10, 2015, the guardian ad litem is to file a report that addresses all the issues raised in this opinion regarding whether the court should grant the Rule 60(b) 207 motion to set aside the dismissal judgment and, if so, whether the court should approve the proposed settlement for the minor. On or before June 12, 2015, the parties are to file their responses to the report. Signed by Honorable Judge Myron H. Thompson on 5/26/2015. (furn: Calendar, AG, Finance)(Case file sent via CM/ECF to Attorney Maddox.)(kh, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
TRACEY McCALL, as
)
administratrix of the
)
estate of Jonathan McCall, )
)
Plaintiff,
)
)
v.
)
)
KEITH REED, et al.,
)
)
Defendants.
)
CIVIL ACTION NO.
1:11cv559-MHT
(WO)
OPINION AND ORDER
As the administratrix of the estate of Jonathan
McCall,
the
defendants
Reed,
plaintiff
Houston
Corrections
brought
County
Jail
Deputy
James
Practical Nurse Ashley Kennedy.
this
lawsuit
against
Administrator
West,
and
Keith
Licensed
The plaintiff asserted
both a federal claim (that the defendants’ deliberate
indifference to Jonathan McCall’s serious medical needs
caused
his
violation
state
of
death
the
in
the
United
wrongful-death
Houston
States
claim.
County
Jail,
Constitution)
and
in
a
Subject-matter
jurisdiction
was
proper
under
28
U.S.C.
§§ 1331
(federal question), 1343(a)(3) (civil rights), and 1367
(supplemental).
After the parties settled, the case
was closed.
The case is again before this court, this time on
(1) the plaintiff’s motion under Federal Rule of Civil
Procedure 60(b) for leave to file a motion for a pro
ami hearing and (2) the plaintiff’s motion for a pro
ami
hearing.
The
court
held
an
on-the-record
conference call on how to proceed on the two motions.
I. THE RULE 60(b) MOTION FOR LEAVE
TO FILE A MOTION FOR A PRO AMI HEARING
A. Legal Standard
Federal
Rule
of
Civil
Procedure
60(b)
is
a
procedural vehicle for obtaining relief from a final
judgment.
for
The Rule lists five defined circumstances
obtaining
relief
and
then,
2
as
relevant
to
this
case, provides a catch-all provision.
Fed. R. Civ. P.
60(b).
of
This
catch-all,
subpart
(6)
Rule
60(b),
allows the reopening of a federal case for “any other
reason [in addition to the five listed] that justifies
relief.”
“While the movant must demonstrate that ‘the
circumstances are sufficiently extraordinary to warrant
relief,
Toole
v.
Baxter
Healthcare
Corp.,
235
F.3d
1307, 1317 (11th Cir. 2000), this catch-all provision
creates a ‘grand reservoir of equitable power to do
justice in a particular case.’
Nisson v. Lundy, 975
F.2d 802, 806 (11th Cir. 1992).”
Daniel v. Gen. Motors
Acceptance Corp., 2008 WL 3876764, at *2 (M.D. Ala.
2008) (Thompson, J.).
A motion under this provision
“must be made within a reasonable time.”
P. 60(c)(1).
3
Fed. R. Civ.
B. Background
This case arises out of Jonathan McCall’s death in
the Houston County Jail.
As relevant here, after the
court
and
granted
defendants’
Houston
in
part
motion
Cnty.,
for
2014
denied
summary
WL
in
part
judgment,
3045552
(M.D.
the
McCall
Ala.
v.
2014)
(Thompson, J.), the parties reached a settlement in
August 2014, and, in September of that year, the court
entered
a
plaintiff
judgment
has
dismissing
brought
this
this
case.
lawsuit
While
as
the
administratrix of the estate of Jonathan McCall, the
beneficiary
of
child,
is
who
that
a
settlement
minor
and
is
not
actually
McCall’s
a
to
party
this
litigation.
Following the settlement, the parties intended to
ask the Houston County Probate Court to conduct a pro
ami,
or
fairness,
hearing
4
to
ensure
the
minor
was
protected
in
the
settlement
settlement.
proceeds
in
the
They
probate
housed
court,
and
the
the
probate court appointed a guardian ad litem for the
minor.
Court
However, in October 2014, the Alabama Supreme
ruled
that
probate
courts
do
not
have
jurisdiction in the distribution of settlements from
wrongful-death
cases.
Kirksey
v.
Johnson,
---
3d ----, 2014 WL 5311315, at *10 (Ala. 2014).
So.
Closed
off from the probate court, the plaintiff, joined by
defendants, now asks this federal court to reopen the
case so that it can conduct the pro ami hearing.
C. Discussion
Under Alabama law, “a minor is not liable on any
contract he makes and ... he may disaffirm the same.”
S.B. v. Saint James Sch., 959 So. 2d 72, 96 (Ala. 2006)
(internal
quotation
marks
omitted).
5
A
settlement
agreement, as a type of contract, is subject to the
same rule.
Hines v. Seibels, 86 So. 43, 44 (Ala.
1920); see also William E. Shreve, Jr., Settling the
Claims
of
Moreover,
a
Minor,
because
72
1975
Ala.
Ala.
Law.
Code
308,
§
309
6-2-8
(2011).
tolls
the
statute of limitations during minority and allows the
minor a period of time after reaching majority to file
suit, the minor may disaffirm a settlement and reassert
the “settled” claim long after the statute would have
otherwise expired.
Id.
However, a settlement involving a minor may still
be binding under Alabama law, but only if a judge holds
a hearing “with an extensive examination of the facts,
to
determine
whether
the
interest of the minor.”
Nesbitt,
534
So.
hearing--called
2d
a
settlement
is
in
the
best
Large v. Hayes By & Through
1101,
pro
6
1105
(Ala.
ami,
1988).
or
This
fairness,
hearing--ensures that the judge protects the minor’s
interest
and
provides
the
needed
finality
for
the
parties to agree to a settlement.
There is some
question about whether a
pro ami
hearing is necessary where a minor is a beneficiary of
a
settlement
under
Alabama’s
wrongful-death
statute.
Compare Shreve, Jr., Settling the Claims of a Minor,
supra, at 315-316 (arguing that a pro ami hearing is
not necessary because a minor is not a party in a
wrongful-death case under Alabama law and because an
administratrix may recover only punitive damages for
deterrence and not compensatory damages for the minor)
with Roby v. Benton Exp., Inc., 2006 WL 1375949, at *1
(M.D.
Ala.
2006)
final
judgment
(Thompson,
based
on
a
J.)
(before
settlement
entering
and
a
without
reaching the issue of whether a pro ami hearing was
required, court held hearing in wrongful-death action
7
under Alabama law even where minor was not a party).
This is further complicated when the settlement also
includes claims made under federal constitutional law
pursuant
to
42
U.S.C.
§ 1983
in
which
compensatory
damages, in addition to punitive damages, might also be
available.
Contrast City of Tarrant v. Jefferson, 682
So. 2d 29, 30 (Ala. 1996) (finding that compensatory
damages are not available under 42 U.S.C. § 1983, when
such
a
claim
is
based
on
Alabama’s
wrongful-death
statute) with Gilmere v. City of Atlanta, Ga., 864 F.2d
734, 740 n. 7 (11th Cir. 1989) (“The Alabama wrongful
death statute, Ala. Code § 6-5-410, provides only for
assessment of punitive damages.
inconsistent
with
the
rule
Because the statute is
that
damages
in
§
1983
actions are to be compensatory, reliance on the Alabama
wrongful
§ 1988.”)
death
statute
(citations
would
omitted);
8
not
be
Lewis
proper
v.
under
City
of
Montgomery, 2006 WL 1761673, at *4 (M.D. Ala. 2006)
(Watkins, J.) (finding Alabama’s wrongful-death statute
inconsistent with § 1983 and allowing for compensatory
damages under a § 1983 action).
Given this uncertainty, it is reasonably arguable
that it would have been prudent, prior to the dismissal
of this case based on the purported settlement, to have
addressed the fairness of the settlement “out of an
abundance of caution.”
See Shreve, Jr., Settling the
Claims of a Minor, supra, at 315.
With her Rule 60(b) motion for leave to file a
motion for a pro ami hearing, the plaintiff argues that
it
would
still
be
prudent
to
address
the
issue
of
fairness, albeit after a judgment of dismissal has been
entered
in
the
case.
The
Rule
60(b)
leave-to-file
motion asks that the court “reopen the ... case for the
limited
purpose
of
requesting
9
a
Pro
Ami
Hearing.”
Plantiff’s Rule 60(b) motion for leave to request pro
ami hearing (doc. no. 207).
The problem is that this
case has been dismissed and a final judgment has been
entered.
There is nothing in the language of Rule
60(b) that authorizes this court to “reopen” this case;
instead,
Rule
60(b)
provides
that,
under
some
circumstances, “the court may relieve a party or its
legal
representative
from
a
final
Fed.R.Civ.P. 60(b) (emphasis added).
judgment.”
In other words,
Rule 60(b) speaks only to whether the circumstances
warrant releasing the parties from, that is, setting
aside,
the
final
judgment.
The
preliminary
issue
presented in the leave-to-file motion is whether the
September
aside.
2014
judgment
of
dismissal
should
be
set
Only if the judgment is set aside may the court
then hold a pro ami hearing.
10
Here, after the Alabama Supreme Court’s decision
that probate courts lack jurisdiction to hold a pro ami
hearing for wrongful-death cases and because, absent
such a hearing, the settlement, even if fair, would not
be binding on the minor who is the actual recipient of
the proceeds in the settlement, there is arguably no
true finality for the parties.
could
be
argued
that
the
In other words, it
judgment
flowing
from
the
parties’ settlement is not binding on the very person
(the non-party minor) who is the only beneficiary of
that settlement.
interest
in
The parties, therefore, have a direct
having
the
current
judgment
(which,
according to them, is not binding on the minor) set
aside so that the court can, after a pro ami hearing,
enter a new judgment (which, according to them, would
be
binding
perspective,
on
it
the
minor).
appears
clear
11
From
that
it
the
is
parties’
to
their
advantage
for
the
court
to
set
aside
the
dismissal
judgment and hold a pro ami hearing.
The concern for the court is whether it should make
this decision without having heard from the non-party
minor--for
the
procedural
premise
of
the
parties’
request to have the court set aside the September 2014
judgment is the belief that the court has the authority
to conduct a pro ami hearing, require a non-party, the
minor,
court
to
participate
finds
the
in
that
settlement
hearing,
is
and,
if
the
fair,
enter
a
new
judgment that would be binding on the minor.
Absent
this premise, there is no reason, asserted so far in
this
case,
to
set
aside
the
final
judgment.
The
plaintiff and the defendants here have assumed this
premise.
For them the only impediment to a pro ami
hearing in which the court would determine the fairness
of the settlement is the September 2014 judgment; they
12
do not question the court’s authority to conduct a pro
ami hearing.
However, the minor may or may not agree with all
aspects of the procedural premise that the court has
the
authority
even
to
conduct
a
pro
ami
hearing,
including requiring a non-party to participate in that
hearing and to enter a judgment that would be binding
on that non-party.
regardless
unfair,
as
the
to
On the one hand, it may be that,
whether
status
quo
the
settlement
would
be
in
is
the
fair
or
minor’s
interest, for the current judgment would not be binding
on the minor now and when he or she reaches majority.
Indeed, the minor, as non-party, may take issue with
whether
this
court
has
the
authority,
absent
the
minor’s consent, to require the minor to participate in
a pro ami hearing and to enter a judgment binding on
the minor when he or she reaches majority. For example,
13
it
could
be
argued
that,
if
the
minor
has
already
received the funds at issue, the minor would have no
reason
to
agree
to
a
belated
pro
ami
hearing.
(Notably, neither the plaintiff nor the defendants ask
that the minor be made a party to this litigation, and
they have not stated any basis for making the minor a
party.)
On the other hand, it may be that, for a minor
who has yet to receive the benefits of the settlement,
the
status
quo
interest,
for
(including
an
would
it
not
could
effort
by
be
in
lead
to
the
the
minor’s
further
defendants
to
best
ligation
have
the
judgment set aside as unfair and then to litigate this
case on merits) that could put the settlement, and, in
particular, the minor’s benefits from it, in serious
jeopardy, including entangled in long-term litigation.
The minor may want to consent to a pro ami hearing and
being bound by a final judgment.
14
(Because the court
has
exercised
jurisdiction
federal-question
(and
not
diversity
and
supplemental
jurisdiction,
which
could be destroyed by adding a party who is a citizen
of
Alabama),
there
does
not
appear
to
be
jurisdictional impediment to the minor being
any
made a
party.)
Thus, antecedent to the substantive determination
by
the
court
settlement
is
in
a
fair
pro
to
ami
the
hearing
minor
of
is
whether
the
the
procedural
question of whether, in this case, the court even has
the authority to conduct a pro ami hearing for the
minor, who is not even a party to litigation.
this
antecedent
question
is
the
basis
for
Because
the
set-
aside-judgment motion, the court believes that it it is
prudent to appoint, and hear from, a guardian ad litem
for the minor before deciding the procedural issue.
15
Courts should not enter knee-jerk orders affording pro
ami hearings post judgment.
The
court
will
therefore
appoint
a
guardian
ad
litem for the minor and will treat the plaintiff’s Rule
60(b) motion for leave to file a motion for a pro ami
hearing as both (a) a Rule 60(b) motion to set aside
judgment and (b) a motion for leave to file a motion
for a pro ami hearing.
on
whether
the
The court will hold a hearing
set-aside-judgment
motion
should
be
granted.
II. MOTION FOR PRO AMI HEARING
The court also has before it the plaintiff’s motion
for pro ami hearing. The parties agree that the court
should appoint a guardian ad litem to represent the
minor’s interest at this hearing.
16
The
plaintiff’s
pro-ami-hearing
motion
will
be
properly before the court only if the court grants the
plaintiff’s
leave-to-file
motion;
the
leave-to-file
motion will be properly before the court only if the
court
grants
the
set-aside-judgment
appoint
a
plaintiff’s
motion;
guardian
ad
and
litem
the
and
Rule
court
conduct
60(b)
needs
a
to
hearing
before deciding whether the set-aside-judgment motion
should be granted.
However, so that all these issues
can be heard at one time and in one hearing, the court
will conditionally grant the leave-to-file motion; will
conditionally
grant
the
pro-ami-hearing
motion;
and
will appoint the same guardian ad litem for both the
Rule 60(b) hearing and the pro ami hearing.
the
court
grants
the
set-aside-judgment
Thus, if
motion,
the
court can conduct a pro ami hearing at the same time.
If the court denies the set-aside-judgment motion, the
17
court can then rescind the granting of, and then deny,
both the leave-to-file motion and the pro-ami-hearing
motion.
* * *
Accordingly, it is the ORDER, JUDGMENT, and DECREE
of the court as follows:
(1)
Plaintiff
Tracey
McCall’s
motion
under
Rule
60(b) for leave to file a motion a for pro ami hearing
(doc. no. 207) is treated as both (a) a motion for
leave to file a motion for a pro ami hearing and (b) a
Rule 60(b) motion to set aside the dismissal judgment
in this case.
(2) Plaintiff McCall’s motion for leave to file a
motion for a pro ami hearing (doc. no. 207) and motion
18
for a pro ami hearing (doc. no. 208) are conditionally
granted.
(3) William C. Maddox, Esq., 567 West Main Street,
Dothan,
Alabama,
36301,
334.678.8100,
, is appointed as guardian ad
litem for the minor in this case.
(4) By agreement of the parties, the defendants are
to pay the attorney’s fees and expenses of the guardian
ad
litem,
with
those
fees
and
expenses
not
to
be
subtracted from the amount of the proposed settlement.
(5) The clerk of the court is to arrange for the
guardian ad litem to receive a copy of the file in this
case.
(6)
An
on-the-record
hearing
on
the
Rule
60(b)
motion to set aside the dismissal judgment (doc. no.
207) and, if granted, on the proposed fairness of the
settlement to the minor is set for June 16, 2015, at
19
10:00 a.m.
Counsel for the parties are to arrange for
the hearing to be conducted by telephone.
Counsel for
all parties, the minor’s mother, and the guardian ad
litem are to be available for the hearing.
(7) On or before June 10, 2015, the guardian ad
litem is to file a report that addresses all the issues
raised
in
this
opinion
regarding
whether
the
court
should grant the Rule 60(b) motion to set aside the
dismissal judgment (doc. no. 207) and, if so, whether
the court should approve the proposed settlement for
the minor.
On or before June 12, 2015, the parties are
to file their responses to the report.
DONE, this the 26th day of May, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE
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