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, <[e-mail]>, 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,

<[e-mail]>, 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