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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 LM, a minor, by and through his Guardian ad Litem, GRISELDA MARTIN, Plaintiff, 13 14 15 16 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. 17 ORDER GRANTING PETITIONER’S MOTION APPOINTING GUARDIAN AD LITEM (Doc. Nos. 3, 7, 10) 18 19 On October 9, 2017, the parties filed a stipulation withdrawing defendant’s motion to 20 dismiss and requiring plaintiff to file and serve an amended complaint by October 13, 2017. 21 (Doc. No. 10.) Griselda Martin has also separately filed a motion to be appointed as guardian ad 22 litem for plaintiff LM. (Doc. No. 3.) 23 “District courts have a special duty, derived from Federal Rule of Civil Procedure 17(c), 24 to safeguard the interests of litigants who are minors.” Robidoux v. Rosengren, 638 F.3d 1177, 25 1181 (9th Cir. 2011). Rule 17 provides that “[t]he court must appoint a guardian ad litem—or 26 issue another appropriate order—to protect a minor or incompetent person who is unrepresented 27 in an action.” Fed. R. Civ. P. 17(c)(2). California law defines any individual under the age of 18 28 as a minor. Cal. Fam. Code. § 6502. Local Rule 202(a) of this court states, in pertinent part: 1 1 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). 2 3 4 5 The decision to appoint a guardian ad litem “must normally be left to the sound discretion of the 6 trial court.” United States v. 30.64 Acres of Land, 795 F.2d 796, 804 (9th Cir. 1986). In 7 considering whether to appoint a guardian for a minor, the court shall consider whether the minor 8 and the guardian have divergent interests. Cal. Code Civ. P. § 372(b)(1). 9 Ms. Martin moves the court for an order appointing her as guardian ad litem for her son, 10 LM. (Doc. No. 3.) In a declaration signed under penalty of perjury, she states that LM is her 11 natural born child and that she has legal custody over him. (Id. at 2.) Ms. Martin also declares 12 she is fully competent and responsible to prosecute the action on her son’s behalf. (Id.) Good 13 cause appearing, the court will grant the motion (Doc. No. 3) and appoint Griselda Martin as the 14 guardian ad litem of LM, a minor and plaintiff in this action. 15 For the reasons set forth above: 16 1. No. 3) is granted; 17 18 Griselda Martin’s motion to be appointed guardian ad litem for plaintiff LM (Doc. 2. In light of the parties’ stipulation, defendant’s motion to dismiss plaintiff’s 19 complaint (Doc. No. 7) is withdrawn and the previously noticed hearing of 20 October 17, 2017, is vacated; and 21 3. complaint no later than October 13, 2017. 22 23 24 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 25 26 27 28 2

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