Reyes v. Commissioner of Social Security

Filing 6

ORDER REQUIRING PLAINTIFF TO COMPLY WITH LOCAL RULE 202(a). Signed by Magistrate Judge Stanley A. Boone on 1/26/2016. (Hernandez, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRITTNEY REYES, on behalf of minor child
Seth Joseph Reyes,

ORDER REQURING PLAINTIFF TO
COMPLY WITH LOCAL RULE 202(a)

Plaintiff,

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v.

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Case No. 1:16-cv-00013-SAB

COMMISSIONER OF SOCIAL SECURITY.

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Defendant.

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Seth Joseph Reyes filed a complaint on January 4, 2016, along with an application to

19 proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 1, 2.) On January 7, 2016,
20 the Court issued an order requiring Plaintiff to submit a motion for appointment of a guardian ad
21 litem. (ECF No. 3.) On January 21, 2016, Brittney Reyes filed the first amended complaint in
22 this action, naming Brittney Reyes as Plaintiff on behalf of minor child Seth Joseph Reyes.
23 (ECF No. 5.) However, Plaintiff has not filed a motion for guardian ad litem, which is now past
24 due.
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The capacity of a litigant is determined “by the law of the state where the court is

26 located.” Fed R. Civ. P. 17(b). Under California law, a minor “shall appear either by a guardian
27 or conservator of the estate or by a guardian ad litem appointed by the court in which the action
28 or proceeding is pending, or by the judge in each case.”

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Cal. Code of Civ. P. § 372.

1 Consequently, a minor cannot maintain an action on his own.
Local Rule 202(a) of the Local Rules of the Eastern District of California states:

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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 or incompetent
person, the attorney representing the minor or incompetent person
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, or, (3) a
showing satisfactory to the Court that no such appointment is
necessary to ensure adequate representation of the minor or
incompetent person. See Fed. R. Civ. P. 17(c).

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Here, Plaintiff’s counsel has not provided evidence that Plaintiff has a representative, not

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10 filed a motion with the court for the appointment of a guardian ad litem, and not made a
11 satisfactory showing that no such appointment is necessary to ensure adequate representation of
12 the minor. While the first amended complaint states that Brittney Reyes is the Plaintiff on behalf
13 of minor child Seth Joseph Reyes and that Plaintiff’s son is Seth Joseph Reyes, there is no
14 evidence of the appointment of a representative under California law. There is no evidence that
15 Brittney Reyes is the guardian of Seth Joseph Reyes. Plaintiff must comply with Local Rule
16 202(a) in order to pursue this action by presenting “(1) appropriate evidence of a representative
17 for the minor or incompetent person under state law or (2) a motion for the appointment of a
18 guardian ad litem by the Court, or, (3) a showing satisfactory to the Court that no such
19 appointment is necessary to ensure adequate representation of the minor or incompetent person.”
20 Local Rule 202(a).
Accordingly, IT IS HEREBY ORDERED that Plaintiff is DIRECTED to comply with

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22 Local Rule 202(a) within seven (7) days of the date of entry of this order.
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IT IS SO ORDERED.

26 Dated:

January 26, 2016
UNITED STATES MAGISTRATE JUDGE

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