LM v. Kern High School District

Filing 11

ORDER GRANTING Stipulation to Withdraw 7 Defendant's Motion to Dismiss and ORDER GRANTING 3 Petitioner's Motion Appointing Guardian Ad Litem signed by District Judge Dale A. Drozd on 10/11/2017. Amended Complaint due by 10/13/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LM, a minor, by and through his Guardian
ad Litem, GRISELDA MARTIN,
Plaintiff,

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No. 1:17-cv-01123-DAD-JLT

ORDER GRANTING STIPULATION TO
WITHDRAW DEFENDANT’S MOTION TO
DISMISS

v.
KERN HIGH SCHOOL DISTRICT, and
DOES 1 to 100, Inclusive,
Defendants.

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ORDER GRANTING PETITIONER’S
MOTION APPOINTING GUARDIAN AD
LITEM
(Doc. Nos. 3, 7, 10)

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On October 9, 2017, the parties filed a stipulation withdrawing defendant’s motion to

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dismiss and requiring plaintiff to file and serve an amended complaint by October 13, 2017.

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(Doc. No. 10.) Griselda Martin has also separately filed a motion to be appointed as guardian ad

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litem for plaintiff LM. (Doc. No. 3.)

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“District courts have a special duty, derived from Federal Rule of Civil Procedure 17(c),

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to safeguard the interests of litigants who are minors.” Robidoux v. Rosengren, 638 F.3d 1177,

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1181 (9th Cir. 2011). Rule 17 provides that “[t]he court must appoint a guardian ad litem—or

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issue another appropriate order—to protect a minor or incompetent person who is unrepresented

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in an action.” Fed. R. Civ. P. 17(c)(2). California law defines any individual under the age of 18

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as a minor. Cal. Fam. Code. § 6502. Local Rule 202(a) of this court states, in pertinent part:
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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 or incompetent person shall present . . . a
motion for the appointment of a guardian ad litem by the Court,
or . . . 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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The decision to appoint a guardian ad litem “must normally be left to the sound discretion of the

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

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considering whether to appoint a guardian for a minor, the court shall consider whether the minor

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

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Ms. Martin moves the court for an order appointing her as guardian ad litem for her son,

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LM. (Doc. No. 3.) In a declaration signed under penalty of perjury, she states that LM is her

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natural born child and that she has legal custody over him. (Id. at 2.) Ms. Martin also declares

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she is fully competent and responsible to prosecute the action on her son’s behalf. (Id.) Good

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cause appearing, the court will grant the motion (Doc. No. 3) and appoint Griselda Martin as the

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guardian ad litem of LM, a minor and plaintiff in this action.

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For the reasons set forth above:

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1.

No. 3) is granted;

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Griselda Martin’s motion to be appointed guardian ad litem for plaintiff LM (Doc.

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In light of the parties’ stipulation, defendant’s motion to dismiss plaintiff’s

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complaint (Doc. No. 7) is withdrawn and the previously noticed hearing of

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October 17, 2017, is vacated; and

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3.

complaint no later than October 13, 2017.

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In light of the parties’ stipulation, plaintiff is directed to file and serve an amended

IT IS SO ORDERED.
Dated:

October 11, 2017
UNITED STATES DISTRICT JUDGE

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