Metropolitan Life Insurance Company v. Burton et al

Filing 9

Petition for Appointment of Guardian Ad Litem Pursuant to F.R.C.P. 17(C) for Minor Defendant and ORDER; Declaration of Ruth E. Basta; and Declaration of Kathleen M. Hurly - signed by Magistrate Judge Sandra M. Snyder on 4/10/2009. (Figueroa, O)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SF/1570256v1 SEDGWICK, DETERT, MORAN & ARNOLD LLP REBECCA A. HULL Bar No. 99802 rebecca.hull@sdma.com KATHLEEN M. HURLY Bar No. 169907 kathleen.hurly@sdma.com One Market Plaza Steuart Tower, 8th Floor San Francisco, California 94105 Telephone: (415) 781-7900 Facsimile: (415) 781-2635 Attorneys for Plaintiff Metropolitan Life Insurance Company UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Metropolitan Life Insurance Company, Plaintiff, v. Michael Burton, M.B., and Kira Davis Defendants. CASE NO. 1:08-CV-01719-AWI-SMS PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM PURSUANT TO F.R.C.P. 17(C) FOR MINOR DEFENDANT; DECLARATION OF RUTH E. BASTA; AND DECLARATION OF KATHLEEN M. HURLY At the request of defendants, plaintiff METROPOLITAN LIFE INSURANCE COMPANY ("MetLife") presents this Petition to appoint Ruth E. Basta ("Basta") Guardian ad Litem for minor M.B. ("M.B.") on the following grounds: 1. MetLife filed the above-referenced Complaint in Interpleader against Michael Burton, Sr., M.B., and Kira Davis, for the purpose of resolving their competing claims for life insurance benefits payable under the terms of the Davita Inc. Health and Welfare Plan (the "Plan Benefits") as a consequence of the death of Rhonda Burton (Mr. Burton, Sr.'s former wife and M.B.'s and Ms. Davis' mother.) 2. M.B., a minor who is ten (10) years of age (date of birth January 7, 1999) does not have the capacity to act of his own behalf in defending and settling this action. (See Declaration of Ruth E. Basta ("Basta Decl.") at para. 1-2.) 3. Ruth E. Basta is M.B.'s grandmother. Ms. Basta is a competent and responsible -1CASE NO. 1:08-CV-01719-AWI-SMS PETITION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM PDF created with pdfFactory trial version www.pdffactory.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SF/1570256v1 person who is willing to act as Guardian ad Litem for her grandson for purposes of resolving this Interpleader action (see Basta Decl. at ¶¶ 3 & 4); and 4. No prior application for the appointment of a Guardian ad Litem has been made and no guardian has yet been appointed to act on behalf of M.B. in this action; and 5. Plaintiffs have no interest in the Plan Benefits, except to ascertain that they are paid in accordance with the terms of the Plan and ERISA. 6. Defendants, none of whom is represented by counsel and none of whom have appeared yet in this action, told plaintiff's counsel that they would like to settle this action and have agreed to distribution of the Plan Benefits. Michael Burton, Sr. was properly paid $34,666.66 (33%) of the Plan Benefits on or about December 5, 2005. Benefits in the amount of $69,333.39, plus any applicable interest, remain payable as a consequence of the death of the decedent (Remaining Plan Benefits). Defendants informed plaintiff's counsel that they have agreed to distribution of the Remaining Plan Benefits as follows: 1/2 of the Remaining Plan benefits to M.B. and 1/2 of the Remaining Plan benefits to Kira Davis. When informed that a minor should be represented by a Guardian ad Litem, for purposes of compromising a minor's claim, defendants requested MetLife's assistance in presenting this petition, seeking to name Ms. Basta as M.B. Guardian ad Litem for purposes of the action ("Hurly Decl.") at ¶¶ 3-5); and 7. Plaintiffs take no position on whether this Court should appoint Ms Basta or another person as M.B.'s Guardian ad Litem but only present this Petition at defendants' request to potentially facilitate settlement without unnecessary litigation. (See Declaration of Kathleen M. Hurly ("Hurly Decl.") at ¶ 5). /// /// /// /// /// /// /// -2CASE NO. 1:08-CV-01719-AWI-SMS PETITION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM PDF created with pdfFactory trial version www.pdffactory.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SF/1570256v1 Wherefore, at defendants' request MetLife presents this Petition for Ms. Basta, grandmother of defendant M.B., who has consented to act as guardian and who is qualified to do so, be appointed Guardian ad Litem of M.B. so that she may appear and defend this suit and/or to enter into a release and settlement on M.B.'s behalf. DATED: March_30, 2009 SEDGWICK, DETERT, MORAN & ARNOLD LLP By: /s/ Kathleen M. Hurly Rebecca A. Hull Kathleen M. Hurly Attorneys for Plaintiff Metropolitan Life Insurance Company PDF created with pdfFactory trial version www.pdffactory.com -3CASE NO. 1:08-CV-01719-AWI-SMS PETITION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SF/1570256v1 DECLARATION OF RUTH E. BASTA I, Ruth E. Basta, hereby declare as follows: 1. I am the grandmother of minor Michael Burton, Jr. (M.B.), a defendant in this action. The matters here are stated based on my personal knowledge and, if called upon to do so, I could and would testify competently to them. 2. M.B. is a minor who is ten (10) years of age whose date of birth is January 7, 1999. 3. I am familiar with the dispute giving rise to this litigation. 4. I consent to act as my grandson's Guardian ad Litem for purposes of this lawsuit. I understand that in that role, I am to represent his interests, not my own. I further understand that, if appointed Guardian ad Litem, I will have authority to enter into a settlement and release of claims on his behalf and that such release will be fully binding on him. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 15th day of March 2009 at Vacaville, California. /s/ Ruth E. Basta (original signature on file) Ruth E. Basta PDF created with pdfFactory trial version www.pdffactory.com -4CASE NO. 1:08-CV-01719-AWI-SMS PETITION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SF/1570256v1 DECLARATION OF KATHLEEN M. HURLY I, Kathleen M. Hurly, declare: 1. I am an attorney admitted to practice before all the courts of the State of California and am a partner in the law firm of Sedgwick, Detert, Moran & Arnold, attorneys of record for Metropolitan Life Insurance Company. I have personal knowledge of the facts set forth in this declaration, except those facts specifically asserted on information and belief. If called as a witness, I could and would testify as set forth herein. 2. I am informed and believe that M.B. is a minor who is ten (10) years of age whose date of birth is January 7, 1999. 3. I have been told by M.B.'s father that Mr. Burton and his family have agreed to split the Plan Benefits among them, 1/3 each. Mr. Burton, Sr. has already been paid his 1/3 of the total plan benefits. I am told the remaining plan benefits will be split equally between the decedent's children. 4. Mr. Burton told me that defendants did not want to litigate this action and wanted to settle it instead of appearing. When I explained the need for a Guardian ad Litem to settle any claim of the minor defendant M.B., Mr. Burton asked me to present this Petition to the Court for this Court's consideration of M.B.'s grandmother as Guardian ad Litem. /// /// /// /// /// /// /// /// /// /// /// -5CASE NO. 1:08-CV-01719-AWI-SMS PETITION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM PDF created with pdfFactory trial version www.pdffactory.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SF/1570256v1 5. Plaintiff takes no position on whether Ms. Basta should be appointed Guardian ad Litem but only present this Petition at defendants' request to potentially facilitate settlement without unnecessary litigation. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 30th day of March 2009 at San Francisco, California. /s/ Kathleen M. Hurly Kathleen M. Hurly ORDER The petition for an order appointing Ruth E. Basta as Guardian ad Litem for petitioner is GRANTED. IT IS SO ORDERED. Dated: 4/10/2009 /s/ Sandra M. Snyder SANDRA M. SNDYER UNITED STATES MAGISTRATE JUDGE PDF created with pdfFactory trial version www.pdffactory.com -6CASE NO. 1:08-CV-01719-AWI-SMS PETITION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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