Hollinquest v. CSS

Filing 11

ORDER TO SHOW CAUSE Why the Action Should Not Be Dismissed, Signed by Magistrate Judge Jennifer L. Thurston on 5/2/2012. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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) Case No.: 1:12-cv-00022 - JLT
)
Plaintiff,
) ORDER TO PLAINTIFF TO SHOW CAUSE WHY
) THE ACTION SHOULD NOT BE DISMISSED
v.
)
COMMISSIONER OF SOCIAL SECURITY, )
)
)
Defendant.
)
)

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Plaintiff seeks judicial review of the administrative decision denying his claim for Social

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L.H., Jr.,

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Security benefits. However, there are indications in the record that Plaintiff is a minor who is not

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represented by a guardian ad litem.

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The capacity of a litigant is determined by “the law of the state where the court is located.”

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Fed. R. Civ. P. 17(b). Under California law, a minor “shall appear either by a guardian or conservator

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of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is

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pending, or by the judge in each case.” Cal. Code of Civ. P. § 372. Consequently, a minor cannot

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maintain an action on his own. However, a minor may appear as a litigant if represented by a guardian

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ad litem. Fed. R. Civ. P. 17(c). The Local Rules instruct:

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Upon commencement of an action or upon initial appearance in defense of an action by
or on behalf of a minor . . . the attorney representing the minor…shall present (1)
appropriate evidence of a representative for the minor or incompetent person under
state law or (2) a motion for the appointment of a guardian ad litem by the Court.
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Local Rule 202(a). Here, Plaintiff’s counsel has not provided evidence that Plaintiff has a

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representative, and no motion has been filed with the court for the appointment of a guardian.

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Therefore, it appears Plaintiff lacks the capacity to prosecute this action.

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Accordingly, Plaintiff is ORDERED to show cause within 21 days why the action should not

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be dismissed for Plaintiff’s lack of capacity , or in the alternative, to file a motion for the appointment

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of a guardian ad litem.

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IT IS SO ORDERED.

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Dated:

May 2, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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