Carrera et al v. United States of America et al

Filing 30

ORDER - IT IS ORDERED that Plaintiffs' motion for an expedited hearing (Doc. 28 ) is granted. A motion hearing is set for October 9, 2024 at 10:00 a.m. in Courtroom 601 of the Sandra Day O'Connor United States Courthouse. IT IS FURTHER ORDERED that Plaintiffs' motion for settlement approval (Doc. 26 ) remains pending. (See document for complete details). Signed by Judge Dominic W Lanza on 9/25/24. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Elmer Carrera, et al.,
Plaintiffs,

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v.

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United States of America,

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No. CV-24-00100-PHX-DWL
ORDER

Defendant.

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This is an action under the Federal Tort Claims Act (“FTCA”) arising from an

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automotive accident. (Doc. 1.) Plaintiffs Elmer and Erika Carrera, as well as their minor

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son A.C., “were traveling in their Ford Fusion southbound on Higley Road near East

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Bridges Boulevard in Maricopa County, Arizona” when their vehicle was struck by a

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vehicle driven by a federal employee. (Id. ¶ 14.) According to the Rule 26(f) report,

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“minor child A.C. suffered bodily injuries that include, but are not limited to, neck, upper

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back, lower back, and right shoulder injuries.” (Doc. 17 at 3.)

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The parties have now reached a settlement. (Doc. 25.) Under the settlement, A.C.

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would receive a net award of $8,816.16, which consists of a gross payment of $13,025

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minus a 25% contingency fee to Plaintiffs’ counsel and the payment of a $952.59 insurance

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lien. (Doc. 26 at 14.) These funds would be held in trust for A.C. until his 18th birthday.

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(Doc. 26 at 4.)

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Because A.C. is a minor, Plaintiffs have filed a motion to approve the settlement of

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his claim as well as a motion for an expedited hearing. (Docs. 26, 28.) The United States

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does not object to the request for settlement approval. (Doc. 27.)

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Having reviewed Plaintiffs’ motion papers, the Court concludes that it is necessary

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to hold a hearing before deciding whether to grant the request for settlement approval. As

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the Ninth Circuit has explained, “[d]istrict courts have a special duty, derived from Federal

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Rule of Civil Procedure 17(c), to safeguard the interests of litigants who are minors. . . . In

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the context of proposed settlements in suits involving minor plaintiffs, this special duty

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requires a district court to conduct its own inquiry to determine whether the settlement

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serves the best interests of the minor.” Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th

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Cir. 2011) (cleaned up). District courts should “limit the scope of their review to the

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question whether the net amount distributed to each minor plaintiff in the settlement is fair

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and reasonable, in light of the facts of the case, the minor’s specific claim, and recovery in

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similar cases.” Id. at 1181-82. “If the net recovery of each minor plaintiff under the

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proposed settlement is fair and reasonable, the district court should approve the settlement

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as presented, regardless of the amount the parties agree to designate for adult co-plaintiffs

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and attorney’s fees.” Id. at 1182.

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Here, although the proposed settlement may very well be fair and reasonable—for

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example, Plaintiffs’ counsel avows that “[t]his office has assessed the costs of litigation

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against the recovery for the natural parents of A.C., thereby providing A.C. with no other

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fees or liens with the exception of the lien for reimbursement of health insurance under

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ERISA” (Doc. 26 at 17 ¶ 3)—the Court lacks sufficient information to reach that

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conclusion with certainty. For example, although the Rule 26(f) report suggests that A.C.

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sustained neck, back, and shoulder injuries, Plaintiffs have not provided any detail as to

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the nature or severity of those injuries. Without that information, it is impossible to

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determine whether a distribution of $8,816.16 to A.C. amounts to a fair and reasonable

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settlement. Robidoux, 638 F.3d at 1181-82 (review should include consideration of “the

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facts of the case” and “the minor’s specific claim”). Additionally, Plaintiffs have not

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provided any information as to the “recovery in similar cases,” which is another required

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consideration under Robidoux.

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Accordingly,

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IT IS ORDERED that Plaintiffs’ motion for an expedited hearing (Doc. 28) is

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granted. A motion hearing is set for October 9, 2024 at 10:00 a.m. in Courtroom 601 of

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the Sandra Day O’Connor United States Courthouse. The hearing will be conducted in

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person

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([e-mail]) no later than October 4, 2024 as to whether they will

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appear via Zoom or in person. The Court’s staff will provide counsel with the Zoom link

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for said hearing.

and/or

via

Zoom.

Counsel

shall

advise

the

Court

via

email

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IT IS FURTHER ORDERED that if either side needs to move for a continuance,

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Counsel for both sides shall meet and confer and then file a motion identifying three half-

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hour periods over the next month during which counsel will be available.

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IT IS FURTHER ORDERED that Plaintiffs’ motion for settlement approval (Doc.
26) remains pending.
Dated this 25th day of September, 2024.

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