Sisco et al v. Weed Union Elementary School District et al

Filing 11

ORDER signed by Judge Garland E. Burrell, Jr on 6/17/13 ORDERING that the Clerk of the Court shall close this action since no complaint has been filed justifying commencement of a civil action. CASE CLOSED. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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M. S., by and through her
Guardian ad Litem, David Sisco;
DAVID SISCO; and KATHLEEN
WILDER,

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Plaintiffs,

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v.
WEED UNION ELEMENTARY SCHOOL
DISTRICT, LEEANNA RIZZO, ALISA
CUMMINGS, COUNTY OF SISKIYOU,
and DEPUTY SHERIFF CARL
HOUTMAN,
Defendants.
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2:13-cv-01145-GEB-CMK
DISMISSAL ORDER

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Notwithstanding Federal Rule of Civil Procedure (“Rule”) 3’s

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instruction that “[a] civil action is commenced by filing a complaint

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with the court,” Plaintiffs initiated this action on June 7, 2013, by

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filing

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Appointment of Guardian ad Litem for [the minor plaintiff] under seal.”

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(ECF No. 1.) Plaintiffs attached as an exhibit to their motion a copy of

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the Complaint they indicated they “w[ould] be filing.” (Pls.’ Mem. in

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Supp. of Mot. to Allow Docs. to be Filed under Seal of Ct. 2, ECF No. 1-

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1.) The undersigned judge assumed Plaintiffs would file their Complaint

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after obtaining a decision on their sealing motion; however, Plaintiffs

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have not yet filed a complaint.

a

motion

seeking

“permission

to

file

an

Application

for

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Decision on Plaintiffs’ sealing motion issued on June 12,

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2013, which denied the motion. The June 12th Order held, inter alia,

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that “Plaintiffs’ underlying Application for Appointment of Guardian ad

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Litem for the minor plaintiff is unnecessary under Federal Rule of Civil

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Procedure (“Rule”) 17(c).” (ECF No. 7, 2:3-5.) The June 12th Order also

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explicitly referenced Rule 3, and states: “[t]o the extent [Plaintiffs]

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seeks sub silencio approval of [proceeding on the minor plaintiff’s

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behalf] under a pseudonym,” that request is denied because justification

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for use of a pseudonym has not been provided. (Id. at 2 n.2, 4 n.3.)1

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Less than two hours after the June 12th Order was filed on the

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public docket, Plaintiffs filed an “Exparte Application for Appointment

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of Guardian Ad Litem for Plaintiff Jane Doe.” (ECF No. 8.) This filing

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disregarded the rulings in the June 12th Order concerning Plaintiffs’

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failure to show justification for referencing the minor plaintiff using

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the pseudonym “Jane Doe” and that the application for a guardian ad

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litem was unnecessary under the circumstances known by the undersigned

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judge. Plaintiffs’ guardian ad litem application was denied in an order

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filed June 13, 2013. (ECF No. 9.) The June 13th Order held that

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“Plaintiffs have not shown justification to use a pseudonym on behalf of

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the minor plaintiff,” and that “Plaintiffs have not shown a ‘need for

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the court to appoint a guardian ad litem’ in this case” as “explained by

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the . . . June 12, 2013 Order.” (Id. at 1:19-27 (quoting Croce v.

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Bromley Corp., 623 F.2d 1084, 1093 (5th Cir. 1980)).)

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Plaintiffs filed a second “Exparte Application for Appointment

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of Guardian Ad Litem,” on June 14, 2013. (ECF No. 10.) This application,

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and the two exhibits thereto, appear to be identical to the previously-

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filed guardian ad litem application, except that Plaintiffs now refer to

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The portion of the June 12th Order concerning the use of a
pseudonym references Rule 5.2, which requires filings that contain the
name of an individual known to be a minor to “include only” the minor’s
initials.
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the minor plaintiff by her full name in violation of Rule 5.2(a) and

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Local Rule 140(a).

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Since the pending guardian ad litem application (ECF No. 10)

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and the exhibits thereto contain identifying information in violation of

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Rule 5.2(a) and Local Rule 140(a), the Clerk of the Court shall remove

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Documents Nos. 10, 10-1, and 10-2 by deletion from the docket. See CBS,

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Inc. v. United States Dist. Court for the Cent. Dist. of Cal., 765 F.2d

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823, 825-26 (9th Cir. 1985) (ordering “improvidently filed” document

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removed from the record and returned to the offering party); see also

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Fine v. Cambridge Int’l Sys., Inc., No. 12cv165 WQH (BGS), 2012 WL

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2871656, at *2 (S.D. Cal. July 11, 2012) (striking a motion that

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contained information violating Rule 5.2 and “remov[ing the motion] from

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the docket”).

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Further, since Plaintiffs have not filed a complaint, this

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action is dismissed without prejudice. See Fed. R. Civ. P. 3. “[Rule 3]

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governs the commencement of all actions” and mandates that “the first

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step in an action is the filing of the complaint.” Fed. R. Civ. P. 3

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advisory committee’s note. Therefore, the Clerk of the Court shall close

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this action since no complaint has been filed justifying commencement of

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a civil action.

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IT IS SO ORDERED.
Dated:

June 17, 2013

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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