Metropolitan Life Insurance Company v. Molina et al

Filing 62

AMENDED ORDER FINDING Cross-Defendant Incompetent to Pursue this Action Pursuant to Fed. R. Civ. P. 17; ORDER DENYING 58 Cross-Defendant's Renewed Motions for Appointment of Guardian Ad Litem and Counsel; ORDER STAYING Proceedings an d DIRECTING Periodic Case Management Reports, signed by Magistrate Judge Christopher D. Baker on 3/10/2025. Cross-Defendant Lupe Flores SHALL RE-FILE a motion for appointment of guardian ad litem upon her identification of a suitable individual wi lling to serve as guardian ad litem, with any such application complying with Local Rule 202 and this Court's prior orders denying her earlier applications. Cross-Defendant Lupe Flores is DIRECTED to file a status report every 90 days from the date of service of this order addressing the status of her medical condition and diagnoses, her search for a guardian ad litem, and any other relevant matters. (Deputy Clerk CM)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12

METROPOLITAN LIFE INSURANCE
COMPANY,
Plaintiff,

13

Case No. 1:23-cv-01553-CDB
ORDER DENYING CROSS-DEFENDANT’S
RENEWED MOTIONS FOR APPOINTMENT
OF GUARDIAN AD LITEM AND COUNSEL

v.

14

(Doc. 58)
15

CONCEPCION FLORES MOLINA,

16

Defendant/Cross-Plaintiff,

17

v.

AMENDED ORDER FINDING CROSSDEFENDANT INCOMPETENT TO PURSUE
THIS ACTION PURSUANT TO FED. R. CIV.
P. 171

18
LUPE C. FLORES,
19
Defendant/Cross-Defendant.

20

ORDER STAYING PROCEEDINGS AND
DIRECTING PERIODIC CASE
MANAGEMENT REPORTS
90-Day Deadline

21
22
23

On January 17, 2025, the Court held a competency hearing as to Cross-Defendant Lupe C.

24

Flores. Thereafter, the Court took the matter under submission. On March 10, 2025, the Court

25

issued its order finding Cross-Defendant Lupe C. Flores incompetent to pursue this action and

26

staying the case. The Court hereby issues an amended order finding Lupe C. Flores incompetent

27
28

1

This order amends and replaces the Court’s order dated March 10, 2025 (Doc. 61).

1

to pursue this action under Federal Rule of Civil Procedure 17, staying the case, and directing

2

periodic case management reports.

3

I. GOVERNING LAW

4

The standard for determining competency is supplied by the law of the individual’s

5

domicile. See Fed. R. Civ. P. 17(b)(1). The complaint provides that Cross-Defendant Lupe Flores

6

is domiciled in North Carolina. (Doc. 1 at 2). Additionally, her correspondence with the Court

7

contains an address located in North Carolina (Docs. 31 at 3; 39 at 1) as do medical records she

8

has attached to her filings with the Court (see, e.g., Doc. 58 at 3). Accordingly, for purposes of

9

evaluating competency, the Court concludes Lupe Flores is domiciled in North Carolina. See

10

Tarlton v. Town of Red Springs, No. 5:15-CV-451-BO, 2017 WL 4782641, at *3 (E.D.N.C. Oct.

11

23, 2017) (“Although the record is limited on this issue, the Court will presume for the purposes

12

of its determination that at the time this suit was filed in 2015 McCollum was domiciled in North

13

Carolina where he was living at the time.”).

14

North Carolina law defines an incompetent adult as someone “who lacks sufficient

15

capacity to manage the adult’s own affairs or to make or communicate important decisions

16

concerning the adult’s person, family, or property whether the lack of capacity is due to mental

17

illness, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury,

18

or similar cause or condition.” Matter of M.S.E., 378 N.C. 40, 44 (quoting N.C. Gen. Stat. § 35A-

19

1101(7)). To find an individual incompetent, “the finder of fact in a state court incompetency

20

adjudication must find by clear, cogent, and convincing evidence that the individual is

21

incompetent.” Nicholson v. Zimmerman, No. 1:19CV585, 2020 WL 5518701, at *5 (M.D.N.C.

22

Sept. 14, 2020) (quotations omitted; citing N.C. Gen. Stat. § 35A-1112(d)).

23

The North Carolina Supreme Court interprets “the word [a]ffairs to encompass a person’s

24

entire property and business and recognizes that [i]ncompetency to administer one’s property

25

obviously depends upon the general frame and habit of mind … it is not enough to show that

26

another might manage a man’s property more wisely or efficiently than he himself.” Id.

27

(quotations omitted).

28
2

1

Although a district court must use the law of an individual’s domicile when determining

2

their capacity, it need not adopt any procedures required by state law and must meet only the

3

requirements of due process. In re Ivers, No. 19-20026-E-13, 2019 WL 6033198, at *8 (Bankr.

4

E.D. Cal. Nov. 8, 2019); see Tarlton, 2017 WL 4782641, at *5 (“As discussed above, this Court

5

need not use North Carolina’s procedures for determining competency, so long as its procedures

6

comport with due process.”). Under Rule 17(c), a district court must hold a competency hearing

7

“when substantial evidence of incompetence is presented.” Allen v. Calderon, 408 F.3d 1150,

8

1153 (9th Cir. 2005); see Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 203 (2d Cir.

9

2003) (explaining that “due process considerations attend an incompetency finding and the

10

subsequent appointment of a guardian ad litem”); Thomas v. Humfield, 916 F.2d 1032, 1034 (5th

11

Cir. 1990) (observing that the appointment of a guardian ad litem implicates due process concerns

12

because it deprives a litigant of the right to control litigation and subjects them to possible

13

stigmatization).

14

The Ninth Circuit has not clearly stated what constitutes “substantial evidence” of

15

incompetence warranting such a hearing. See Hoang Minh Tran v. Gore, No. 10cv464–GPC

16

(DHB), 2013 WL 1625418, at *3 (S.D. Cal. April 15, 2013). However, the Ninth Circuit has

17

indicated that sworn declarations from the allegedly incompetent litigant, sworn declarations or

18

letters from treating psychiatrists or psychologists, and medical records may be considered in this

19

regard. See Allen, 408 F.3d at 1152–54; see also Hoang Minh Tran, 2013 WL 1625418, at *3.

20

Such evidence must speak to the court’s concern as to whether the person in question is able to

21

meaningfully take part in the proceedings. See AT&T Mobility, LLC v. Yeager, 143 F. Supp. 3d

22

1042, 1042 (E.D. Cal. 2015).

23

“A[n] incompetent person who does not have a duly appointed representative may sue by

24

a next friend or by guardian ad litem. The court must appoint a guardian ad litem—or issue

25

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

26

action.” Fed. R. Civ. P. 17(c)(2). As opposed to a determination of competency, “a district court's

27

decision whether to appoint a guardian ad litem is purely procedural and wholly uninformed by

28

state law.” In re Ivers, 2019 WL 6033198, at *9.
3

1

Within its obligation of assessing competency, a district court has broad discretion to

2

determine the suitability of appointing a guardian ad litem. See United States v. 30.64 Acres of

3

Land, 795 F.2d 796, 805 (9th Cir. 1986). Thus, “[if] the court determines that a pro se litigant is

4

incompetent, the court generally should appoint a guardian ad litem under Rule 17(c).” Davis v.

5

Walker, 745 F.3d 1303, 1310 (9th Cir. 2014). “If another order would sufficiently protect the

6

incompetent person’s interests in the litigation in lieu of a guardian, the court may enter such an

7

order.” Id.

8

“[N]otwithstanding the incompetency of a party, the guardian may make binding contracts

9

for the retention of counsel and expert witnesses and may settle the claim on behalf of his ward.”

10

30.64 Acres of Land, 795 F.2d at 805. However, a guardian ad litem who is not an attorney must

11

be represented by counsel in order to litigate a case on another’s behalf. See Johns v. Cnty. of San

12

Diego, 114 F.3d 874, 877 (9th Cir. 1997); Stoner v. Santa Clara Cnty. Office of Educ., 502 F.3d

13

1116, 1127 (9th Cir. 2007) (explaining the right to proceed pro se is personal to the litigant).

14
15

II. DISCUSSION
a. Cross-Defendant Lupe Flores’ Filings and Declarations

16

On March 25, 2024, Lupe Flores filed a motion for appointment of guardian ad litem.

17

(Doc. 31). The motion attached a letter, dated January 15, 2024, from physician Peter Thomas

18

Leistikow in Winston Salem, North Carolina, explaining that Lupe Flores was seen on December

19

22, 2023, in regards to memory changes from a “possible neurocognitive disorder. She is pending

20

additional testing and workup.” Id. at 5. On April 19, 2024, the Court denied the motion without

21

prejudice on three grounds: (1) the motion failed to provide substantial evidence of incompetence;

22

(2) the motion failed to show efforts to confer with Cross-Plaintiff Concepcion Molina and

23

indicate in the application whether Concepcion Molina concurs or objects to the proposed

24

appointment; and (3) the motion failed to identify potential candidates willing to be appointed as

25

guardian ad litem and include their sworn attestations that they did not have conflicts of interest,

26

as required by Local Rule 202. See (Doc. 33).

27
28

On July 8, 2024, Lupe Flores filed a renewed motion for appointment of guardian ad
litem. (Doc. 39). The motion attached progress notes from Dr. Leistikow, dated June 27, 2024,
4

1

representing that a neuropsychological assessment done on Lupe Flores on June 10, 2024, showed

2

“moderate deficits across multiple cognitive domains,” including learning, retrieval, speed

3

processing, and language, consistent with “mild vascular neurocognitive disorder.” Id. at 4. Dr.

4

Leistikow provides that he suggested they pursue formal legal representation in the instant action,

5

but Lupe Flores stated it was not financially possible at the time. Id. at 4. On July 19, 2024, Lupe

6

Flores filed a supplement to her motion stating that she has moderate vascular dementia and

7

dyslexia. (Doc. 45). It is signed by both Lupe Flores and Dawn Harris. Id. at 1. A durable power

8

of attorney, consisting of 21 pages, attached to the supplemental filing represents that Dawn

9

Harris is Lupe Flores’ attorney-in-fact. Id. at 2-22. It is stamped and signed by notary public Julie

10

R. Whatley. Id. at 22. On August 1, 2024, the Court denied the motion without prejudice on the

11

grounds that points (2) and (3) above still had not been remedied. (Doc. 46). The Court directed

12

that its order be served on Dawn Harris. Id. at 4.

13

On August 26, 2024, Lupe Flores filed a second renewed motion for appointment of

14

guardian ad litem and motion for appointment of counsel. (Doc. 48). This motion was signed by

15

both Lupe Flores and Dawn Harris. Id. at 1. The motion attached a one-page undated and

16

unsigned letter from Victoria R. Shada. It did not establish Dr. Shada’s status as a healthcare

17

professional, lacking any title for her, nor her relationship to Lupe Flores. The letter stated that

18

Lupe Flores has “logopenic primary progressive aphasia,” a type of dementia that affects

19

language abilities and makes it “incredibly difficult, and ultimately impossible, for someone to

20

articulate his or herself clearly and accurately … She has had this condition for a minimum of

21

three years, if not longer.” Id. at 2. Also attached to the motion was a two-page pamphlet

22

published by the Judicial Council of California regarding accommodations under the Americans

23

With Disabilities Act for court activities, programs, and services. Id. at 3-4. The Court denied the

24

motion without prejudice on the grounds that Lupe Flores had again failed to remedy the

25

deficiencies of the prior motion, namely points (2) and (3) above. In that same order, the Court set

26

a mandatory status conference for October 23, 2024, invited Dawn Harris to appear, invited the

27

parties to confer and notify the Court of any conflicts of availability to attend the conference, and

28

directed service of the order on Dawn Harris. (Doc. 49).
5

1

In advance of the noticed hearing, on October 10, 2024, Lupe Flores filed a third renewed

2

motion for appointment of guardian ad litem and a renewed motion to appoint counsel. (Doc. 50).

3

Like her prior motion, this third motion was signed by both Lupe Flores and Dawn Harris. The

4

motion attached a one-page undated letter from Victoria R. Shada, substantially similar to the one

5

attached to the previous motion (see supra). Id. at 3. In the motion, neither Lupe Flores nor Dawn

6

Harris represented they were unable to attend the mandatory status conference scheduled for

7

October 23, 2024. On October 23, 2024, Concepcion Molina and her counsel Eric Leroy appeared

8

for the conference. Neither Lupe Flores nor Dawn Harris, nor any representative acting on their

9

behalf, appeared for the status conference. (Doc. 51).

10

Following her failure to appear at the mandatory status conference, the Court ordered

11

Lupe Flores to show cause in writing why she should not be sanctioned. (Doc. 52). Lupe Flores

12

filed her response to the order to show cause on November 6, 2024, signed by both her and Dawn

13

Harris. (Doc. 54). In her response, she stated that she cannot speak in front of other people

14

because of anxiety and that her daughter (presumably her power of attorney, Dawn Harris) was

15

on honeymoon and out of state. She stated that, due to her medical diagnosis, she did not know

16

what the video link was and what to do. She also sought leave for additional time to file medical

17

documentation from her neurologist. Id. at 1-2. The response attaches a one-page undated letter

18

from Victoria R. Shada, substantially identical to the prior such letters, only with what appear to

19

be highlights on text naming the medical condition and its effects. Id. at 3. The response also

20

attaches a document from the Social Security Administration, titled “Program Operations Manual

21

System,” with contains information relating to “primary progressive aphasia.” Id. at 4-15.

22

On November 25, 2024, Lupe Flores filed a fourth renewed motion for appointment of

23

guardian ad litem and a second renewed motion for appointment of counsel. (Doc. 55). This

24

motion, too, was signed by both Lupe Flores and Dawn Harris. The motion attached a letter from

25

physician assistant Abbie Connoy Eaton, detailing a condition of logopenic primary progressive

26

aphasia and discussing an abnormal cognitive test score by Lupe Flores, as well as identifying the

27

impacts her diagnosis may have on her ability to speak, comprehend, and retrieve words. The

28

letter states Lupe Flores “has had this condition for a minimum of three years, if not longer, and it
6

1

will continue to get worse over time … she is not able to represent herself in court.” Id. at 55.

2

On December 12, 2024, the Court denied Lupe Flores’ fourth renewed motion for

3

appointment of guardian ad litem and second renewed motion for appointment of counsel for

4

reasons substantially similar to prior denials. Additionally, the Court set a mandatory hearing to

5

determine Lupe Flores’ competency, directing Lupe Flores to make available Dawn Harris, her

6

treating neurologist or another medical provider who can testify regarding her diagnosis, and any

7

other individual she chooses to nominate as guardian ad item, if not Dawn Harris. In advance of

8

the hearing, the Court directed Lupe Flores to file a motion for appointment of guardian ad litem

9

that complies with the Local Rules of the Court. (Doc. 56).

10

On January 16, 2025, Lupe Flores filed her fifth renewed motion for appointment of

11

guardian ad litem and third renewed motion for appointment of counsel. (Doc. 58). Substantially

12

similar to prior motions, it is signed by both Lupe Flores and Dawn Harris. It attaches a letter

13

from Victoria R. Shada, representing her as a physician with a specialty in geriatrics, and

14

provides that Lupe Flores has been under Dr. Shada’s care since August 2024, that she “has a

15

diagnosis of dementia due to primary progressive aphasia” that has “progressed to the stage

16

where she can no longer understand even simple questions nor one-step instructions,” and that it

17

is Dr. Shada’s professional opinion that Lupe Flores cannot make “informed and independent

18

medical, legal and financial decisions.” Id. at 3 (emphasis added).

19

The letter is marked as “[e]lectronically signed” on December 13, 2024. Id. Also attached

20

to the motion is a form from the Central District of California requesting accommodations for

21

trial participants with disabilities (form G-122). The form is signed by both Lupe Flores and

22

Dawn Harris and seeks appointment of a guardian ad litem. Id. at 6. Additionally, the motion

23

attaches a scanned printout of an email from [e-mail] to “access_coordinator,”

24

appearing to attach the aforementioned Central District form and Dawn Harris’ power of attorney;

25

hand-written on the document are the words “Sent 9 Jan 25.” Id. at 7. Lastly, the motion attaches

26

the same two-page pamphlet published by the Judicial Council of California regarding

27

accommodations under the Americans with Disabilities Act as was attached to Lupe Flores’

28

second renewed motion. Id. at 8-9.
7

1
2

b. Competency Hearing
On January 17, 2025, the Court held the aforementioned competency hearing. (Doc. 59).

3

Lupe Flores and Dawn Harris appeared by videoconference from North Carolina. Concepcion

4

Molina appeared by telephone and her counsel Eric Leroy appeared by videoconference. The

5

Court directed its inquiries to Lupe Flores and sought additional information from her concerning

6

her medical diagnosis and symptoms and affects, particularly in regards to her ability to represent

7

herself in this action. The Court also examined Dawn Harris regarding her willingness and ability

8

to serve as guardian ad litem. Ms. Harris informed the Court that she would not serve as guardian

9

ad litem for Lupe Flores for various personal reasons, which are preserved on the record.

10
11
12
13

Finally, the Court sought input from Concepcion Molina and her counsel. The Court
informed the parties that the matter was submitted, with an order to follow.
c. Analysis
The Court has considered the declarations of Lupe Flores, the medical letters proffered,

14

and the testimony elicited from her and Dawn Harris during the competency hearing and

15

concludes that the showing supports a finding of incompetency. Lupe Flores’ diagnosis of

16

logopenic primary progressive aphasia is a mental impairment that significantly limits her

17

communication skills and, as represented by her medical providers in the proffered letters,

18

adversely impacts her ability to understand and make informed decisions as to her own affairs.

19

See, e.g., Tarlton, 2017 WL 4782641, at *6 (holding numerous factors evidenced incompetence

20

under North Carolina law, including frontal lobe impairment and doctor’s report finding plaintiff

21

“generally needing support to make health and legal decisions”); Byrd on behalf of Byrd v. United

22

States, No. 1:20-CV-03090-LMM, 2021 WL 5033826, at *5 (N.D. Ga. July 19, 2021) (finding

23

plaintiff incompetent where physician’s letter represented that plaintiff “continues to experience

24

aphasia, memory deficits, and impaired comprehension” and that the aphasia “affects all language

25

modalities with severely impaired comprehension” and that plaintiff “lacks sufficient ability to

26

comprehend and communicate responsible decisions concerning his person”).

27

The Court has inquired with the Pro Bono Coordinator for the Eastern District of

28

California regarding this action – particularly as to availability of individuals for appointment of
8

1

guardian ad litem or counsel, including as to pro bono attorneys, law school programs, bar

2

associations, or other relevant organizations. Additionally, the Court has contacted the Ninth

3

Circuit Pro Bono Program Coordinator, the North Carolina Pro Bono Resource Center, a

4

statewide legal aid organization within North Carolina, a law school clinical program within the

5

state, as well as state and county-level government services. To date, the Court has been unable to

6

locate any individuals willing serve to as guardian ad litem or as counsel.

7

For the foregoing reasons, the Court will stay the action and require periodic case

8

management reports. Upon locating any individual willing and able to serve as guardian ad litem

9

or counsel, the Court will appoint them. Lupe Flores may renew her motion for appointment of

10

guardian ad litem at any time if she identifies an individual willing to serve as such.2

11

III. CONCLUSION AND ORDER

12

Accordingly, the Court HEREBY ORDERS that:

13

1. The renewed motion of Cross-Defendant Lupe Flores for appointment of counsel of

14

guardian ad litem (Doc. 58) is DENIED;

15

2. This action is STAYED;

16

3. Cross-Defendant Lupe Flores SHALL RE-FILE a motion for appointment of guardian

17

ad litem upon her identification of a suitable individual willing to serve as guardian ad

18

litem, with any such application complying with Local Rule 202 and this Court’s prior

19

orders denying her earlier applications; and

20

4. Cross-Defendant Lupe Flores is DIRECTED to file a status report every 90 days from

21

the date of service of this order addressing the status of her medical condition and

22

diagnoses, her search for a guardian ad litem, and any other relevant matters.

23
24

IT IS SO ORDERED.
Dated:

March 11, 2025

___________________

_

UNITED STATES MAGISTRATE JUDGE

25
26
27
28

For substantially the same reasons set forth herein and in the Court’s prior orders (see
supra), the Court will deny the renewed motion of Cross-Defendant Lupe Flores for appointment
of counsel and guardian ad litem.
2

9