Smithee et al v. California Correctional Institution et al

Filing 9

ORDER GRANTING 7 the Petition to Appoint Jennifer Montes as Guardian ad Litem for Minor Plaintiff E.M., signed by Magistrate Judge Jennifer L. Thurston on 1/7/2019. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANA SMITHEE AND E.M., a minor by and ) Case No.: 1:19-cv-00004 LJO - JLT
through her guardian ad litem JENNIFER
)
MONTES,
) ORDER GRANTING THE PETITION TO
) APPOINT JENNIFER MONTES AS GUARDIAN
Plaintiffs,
) AD LITEM FOR MINOR PLAINTIFF E.M.
)
v.
) (Doc. 7)
)
CALIFORNIA CORRECTIONAL
)
INSTITUION, STATE OF CALIFONRIA,
RHONDA LITT-STONER, and DOES 1
)
through 200,
)
)
Defendants.

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Dana Smithee and E.M., a minor, assert Defendants are liable for the death of Cyrus Ayers,

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who died while in custody of the state at California Correctional Institution – Tehachapi (See generally

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Doc. 1) Jennifer Montes seeks appointment as the guardian ad litem for E.M., the daughter of Ms.

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Montes and Mr. Ayers. (Doc. 7) For the following reasons, the request for appointment of Ms.

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Bonello as the guardian ad litem is GRANTED.

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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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Because E.M. resides in Washington state, the law of Washington state governs. Notably,

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“Washington’s civil rules are silent as to a party’s capacity for suit.” Thomas v. Cannon, 2017 WL

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2402791 (W. Wa. June 1, 2017) (citing See Wash. Super. Ct. Civ. R. 17) “Instead, courts must rely on

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statutory and common law to determine capacity for suit.” Id. Nevertheless, under Washington state

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law, the appointment of a guardian ad litem is proper when “the court is reasonably convinced that the

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litigant is not competent to understand the significance of legal proceedings and the effect of such

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proceedings on the litigant's best interests.” In re Marriage of Blakely, 111 Wn. App. 351, 358, 44

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P.3d 924 (2002). Accordingly, a guardian ad litem may be appointed to represent the interests of an

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individual who has not reached the age of majority, which is defined “for all purposes at the age of

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eighteen years.” See Burt v. Ross, 43 Wn. App. 129, 715 P.2d 538, 539 (Wash. Ct. App. 1986).

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II.

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Discussion and Analysis
Plaintiffs allege that E.M. is the three-year-old daughter of Jennifer Montes, residing in the

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state of Washington. (Doc. 1 at 2, ¶ 2; see also Doc. 7 at 2, ¶ 1) As a minor, the Court finds E.M.’s

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ability to bring suit is contingent upon the appointment of a guardian ad litem. Upon review of the

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complaint, it does not appear Ms. Montes has any adverse interests to those of her daughter, because

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Ms. Montes is not a plaintiff in the action. Accordingly, appointment of Ms. Bonello as guardian ad

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

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when a minor is represented by a parent who is a party to the lawsuit and who has the same interests as

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the child there is no inherent conflict of interest.”); see also Anthem Life Ins. Co. v. Olguin, 2007 U.S.

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

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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. Montes has conflicting interests, and as such she may be appointed to represent

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

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application to be appointed as the guardian ad litem.
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Based upon the foregoing, the Court ORDERS:

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1.

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The motion for appointment of Jennifer Montes as guardian ad litem for E.M. (Doc. 7)
is GRANTED; and

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Jennifer Montes is appointed to act as guardian ad litem for Plaintiff E.M., and is
authorized to prosecute this action on her behalf.

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IT IS SO ORDERED.
Dated:

January 7, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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