D. C. v. United States of America

Filing 7

ORDER GRANTING 4 Motion to Appoint Lauren Elliott as Guardian ad Litem ad Litem for Minor Plaintiff D.C., signed by Magistrate Judge Jennifer L. Thurston on 11/3/2015. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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D.C.,

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Plaintiff,

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v.
UNITED STATES OF AMERICA,

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Defendant.

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Case No.: 1:15-cv-01646 - --- - JLT
ORDER GRANTING THE MOTION TO APPOINT
LAUREN ELLIOTT AS GUARDIAN AD LITEM
FOR MINOR PLAINTIFF D.C.
(Doc. 4)

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On October 28, 2015, Lauren Elliot initiated this action on behalf of minor Plaintiff D.C., and

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requested to be appointed as her guardian ad litem. (Docs. 1, 4)

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I.

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Appointment of a Guardian Ad Litem
Pursuant to the Federal Rules of Civil Procedure, “[a] minor . . . who does not have a duly

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appointed representative may sue by a next friend or by a guardian ad litem.” Fed. R. Civ. P. 17(c)(2).

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In addition, a court “must appoint a guardian ad litem - or issue another appropriate order - to protect a

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minor or incompetent person who is unrepresented in an action.” Id. The capacity of an individual to

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sue is determined “by the law of the individual’s domicile.” Fed. R. Civ. P. 17(b).

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Here, D.C. resides California and the law of the state governs. Under California law, an

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individual under the age of eighteen is a minor, and a minor may bring suit as long as a guardian

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conducts the proceedings. Cal. Fam. Code §§ 6502, 6601. A guardian ad litem may be appointed to

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represent the minor’s interests. Cal. Code Civ. P. § 372(a).
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II.

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Discussion and Analysis
In determining whether to appoint a particular guardian ad litem, the court must consider

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whether the minor and the guardian have divergent interests. Cal. Code Civ. P. § 372(b)(1). “When

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there is a potential conflict between a perceived parental responsibility and an obligation to assist the

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court in achieving a just and speedy determination of the action, a court has the right to select a

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guardian ad litem who is not a parent if that guardian would best protect the child’s interests.” Williams

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v. Super. Ct., 147 Cal. App. 4th 36, 38 (Cal. Ct. App. 4th 2007) (internal quotation marks and citation

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omitted). “[I]f the parent has an actual or potential conflict of interest with his child, the parent has no

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right to control or influence the child's litigation.” Id. at 50.

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Here, Plaintiff D.C. is the four-year-old daughter of Lauren Elliot and is a minor under

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California law. See Cal. Fam. Code § 6502. As a minor, her ability to bring suit is contingent upon the

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appointment of a guardian ad litem. Upon review of the Complaint, it does not appear there are adverse

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interests. Ms. Elliot does not have competing claims with Plaintiff, because D.C. is the only plaintiff in

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this action, and the only claims are asserted on her behalf. Accordingly, appointment of Ms. Elliot as

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guardian ad litem for her son is appropriate. See Burke v. Smith, 252 F.3d 1260, 1264 (11th Cir. 2001)

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(“Generally, when a minor is represented by a parent who is a party to the lawsuit and who has the

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same interests as the child there is no inherent conflict of interest.”); see also Anthem Life Ins. Co. v.

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Olguin, 2007 U.S. Dist. LEXIS 37669, at *7 (E.D. Cal. May 9, 2007) (observing that “[a] parent is

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generally appointed guardian ad litem”).

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III.

Conclusion and Order

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The decision whether to appoint a guardian ad litem is “normally left to the sound discretion of

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the trial court.” United States v. 30.64 Acres of Land, etc., 795 F.2d 796, 804 (9th Cir. 1986). Here, it

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does not appear Ms. Elliot has conflicting interests, and as such she may be appointed to represent the

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interests of her daughter. Therefore, the Court is acting within its discretion to grant the application.

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Based upon the foregoing, IT IS HEREBY ORDERED:

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The motion for appointment of Lauren Elliot as guardian ad litem for D.C. (Doc. 4) is
GRANTED; and

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Lauren Elliot is appointed to act as guardian ad litem for Plaintiff D.C., and is
authorized to prosecute this action on her behalf.

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IT IS SO ORDERED.
Dated:

November 3, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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