Franck v. Yolo County, et al.,

Filing 39

ORDER signed by Judge Lawrence K. Karlton on 1/12/12 DENYING 27 Application for appoint of Herman Franck as Gaurdian Ad Litem. Herman Franck may file a new application. If he chooses to do so, he shall address the court's concern regarding the issue of abstention. The 22 Motion for Preliminary Injunction and 34 Motion to Dismiss Second Amended Complaint are STAYED pending the appointment of a guardian ad litem for the plaintiffs. The hearing currently scheduled on those motions set for 1/17/2012 is VACATED. (Donati, J)

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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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HERMAN FRANCK,

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NO. CIV. S-11-2284 LKK/GGH
Plaintiff,

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v.
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O R D E R
YOLO COUNTY, PATRICK S.
BLACKLOCK, COUNTY
ADMINISTRATOR; EDWARD G.
PRIETO, YOLO COUNTY SHERIFF,
Defendants.

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/

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Plaintiffs in this case are minor children who challenge two

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Yolo County ordinances that restrict dog barking and dog roaming.

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Plaintiffs assert that the ordinances violate the Takings and

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Supremacy clauses of the U.S. Constitution. Pending before the

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court

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enforcement of the ordinances at issue, and a motion by defendants

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to dismiss the Second Amended Complaint. Also pending is an

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application by Herman Franck to be appointed as guardian ad litem

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to the plaintiffs, who are his children.

is

a

motion

for

a

preliminary

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injunction

to

enjoin

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I. Background

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Plaintiffs are minor children and are the owners, of two

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Dalmatians, Spot and Diamond. Plaintiffs would like to walk their

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dogs off leash in an area near their home in West Sacramento.

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That area is subject to two county ordinances, Sec. 6-1.401 and

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Sec. 6-1.403, which prohibit dog roaming and habitual loud dog

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barking, respectively. Plaintiffs allege that they would like their

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dogs to be in compliance with the anti-barking ordinance, but that

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they do know now how to keep their dogs in compliance. Plaintiffs

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seek to have enforcement of the ordinances permanently enjoined.

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B. Procedural Background

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The original and first amended complaints in this case named

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Herman Franck, father of the two current plaintiffs, as the sole

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plaintiff. Herman Franck is an attorney. Franck filed a Seconded

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Amended Complaint on November 3, 2011, in which he substituted his

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two minor children in as plaintiffs, and removed himself as a party

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to the action. Mr. Franck remains the attorney for his plaintiff

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children, and has applied to be their guardian ad litem. In that

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application, Mr. Franck asserts that he is the father of Alex and

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Adam Franck, that they are both minor children who reside with Mr.

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Franck and his wife Sabrina Q. Chen in West Sacramento.

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In the Original and First Amended Complaints, plaintiff

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asserted that four citations had been issued against Mr. Franck for

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violations of the dog roaming and dog barking ordinances. The

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Second Amended Complaint makes no mention of those citations, as

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they are against Mr. Franck and not his minor children. Defendants
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contend that the substitution of his two minor children in as

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plaintiffs is “an attempt to avoid the compelling abstention

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arguments made in response to Herman Franck’s first attempt to

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obtain a preliminary injunction,” the pending civil violations

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against Herman Franck. Mot. to Dismiss 2.

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Pursuant to Fed. R. Civ. P. 17(c)(2), the court must appoint

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a guardian ad litem to protect a minor who is unrepresented in an

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action. Without a properly appointed guardian ad litem, the current

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plaintiffs, who are minor children, may not commence suit. Fed. R.

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Civ. P. 17(c).

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The court is not convinced that Mr. Franck’s motivation in the

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instant application is to protect the minor plaintiffs. In the

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application, Mr. Franck made no assertion that he would protect the

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minor

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suspicion that Mr. Franck’s motivation in substituting his minor

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children in as plaintiffs is to skirt the abstention issue.

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children.

Additionally,

the

court

shares

defendant’s

II. Conclusion
Accordingly, the court ORDERS as follows:

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[1] Plaintiffs’ application for appointment of Herman

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Franck as Guardian Ad Litem, ECF No. 27, is DENIED.

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[2] Herman Franck MAY file a new application. If he

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chooses to do so, he SHALL address the court’s concern

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regarding the issue of abstention.

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[3] The motion for a preliminary injunction, ECF No. 22,

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and motion to dismiss, ECF No. 34, are STAYED pending

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appointment of a guardian ad litem for the plaintiffs.
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[4] The hearing currently scheduled on those motions on

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January 17, 2012 is VACATED.

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IT IS SO ORDERED.

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DATED:

January 12, 2012.

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