Sisco et al v. Weed Union Elementary School District et al
Filing
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ORDER signed by Judge Garland E. Burrell, Jr. on 6/12/2013 ORDERING that Plaintiff's 1 Motion to allow documents to be filed under seal is DENIED. (Zignago, K.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JANE DOE, by and through her
Guardian ad Litem, David Sisco;
DAVID SISCO; and KATHLEEN
WILDER,
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Plaintiffs,
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v.
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WEED UNION ELEMENTARY SCHOOL
DISTRICT, LEEANNA RIZZO, ALISA
CUMMINGS, COUNTY OF SISKIYOU,
and DEPUTY SHERIFF CARL HOUTMAN,
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Defendants.
________________________________
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2:13-cv-01145-GEB-CMK
ORDER
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On June 7, 2013, Plaintiffs filed a Motion seeking “permission
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to file an Application for Appointment of Guardian ad Litem for Jane Doe
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under seal.” (ECF No. 1.) However, the document Plaintiffs seek to have
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filed under seal was not provided to the undersigned judge as required
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by Local Rule 141(b).1
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A purpose of this requirement is to enable the Court to review
in camera precisely what the movant opines should be sealed. Here,
nothing was submitted to chambers for in camera consideration in
connection with the sealing request other than what has been filed on
the public docket.
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Review of the motion reveals that the plaintiff referenced as
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“Jane Doe” is a minor,2 and that notwithstanding Plaintiffs’ non-
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compliance with Local Rule 141(b), Plaintiffs’ underlying Application
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for
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unnecessary under Federal Rule of Civil Procedure (“Rule”) 17(c).
Appointment
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of
Guardian
ad
Litem
for
the
minor
plaintiff
is
“To maintain a suit in a federal court, a child or mental
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incompetent must be represented by a competent adult.”
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Brophy, 124 F.3d 893, 895 (7th Cir. 1997). Rule 17(c) governs the
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appearance of minors and incompetent persons in federal court. Rule
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17(c)(1) prescribes: “The following representatives may sue or defend on
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behalf of a minor or an incompetent person: (A) a general guardian; (B)
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a committee; (C) a conservator; or (D) a like fiduciary.” Thus Rule
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17(c)(1)(A) permits a “general guardian” to sue in federal court on
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behalf of a minor, and “[a] parent is a guardian who may so sue.” Cmty.
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for Equity v. Mich. High Sch. Athletic Ass’n, 26 F. Supp. 2d 1001, 1006
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(W.D. Mich. 1998). Similarly, Rule 17(c)(2) prescribes:
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T.W. by Enk v.
A minor or an incompetent person who does not have
a duly appointed representative may sue by a next
friend or by a guardian ad litem. The court must
appoint a guardian ad litem—or issue another
appropriate order—to protect a minor or incompetent
person who is unrepresented in an action.
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(emphasis added). The Ninth Circuit has interpreted Rule 17(c)(2) as
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follows:
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To the extent that this motion seeks sub silentio approval of
the filing of the minor’s case under a pseudonym, that portion of the
motion has not been supported with applicable authority and argument and
is therefore denied. Rule 17(a) prescribes that “[a]n action must be
prosecuted in the name of the real party in interest.” Further, Rule 5.2
provides, in pertinent part: “Unless the court orders otherwise, in a[]
. . . filing with the court that contains . . . the name of an
individual known to be a minor, . . . the filing may include . . . the
minor’s initials . . . .”
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Fed. R. Civ. P. 17(c) requires a court to take
whatever measures it deems proper to protect an
incompetent person during litigation. Although the
court has broad discretion and need not appoint a
guardian ad litem if it determines the person is or
can be otherwise adequately protected, it is under
a legal obligation to consider whether the person
is adequately protected.
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United States v. 30.64 Acres of Land, More or Less, Situated in
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Klickitat Cnty., State of Wash., 795 F.2d 796, 805 (9th Cir. 1986)
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(emphasis added). Further, other circuits have explicitly found that
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appointment of a guardian ad litem is not required when a minor is
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adequately represented by a parent. See Burke v. Smith, 252 F.3d 1260,
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1264 (11th Cir. 2001) (“In the present case, [the minor] was otherwise
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represented by her mother who brought this action on her behalf. Thus,
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Rule 17(c) did not require the court to appoint a guardian ad litem.”);
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Matter of Chi., Rock Island & Pac. R.R. Co.,788 F.2d 1280, 1282 (7th
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Cir. 1986) (“If [a minor] is a party and represented, the appointment of
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a guardian is not required, provided the representation is adequate, as
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it would normally be if the party was being represented by a parent as
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‘next friend’ and there was no conflict of interest between the party
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and his representative.” (citation omitted)); Croce v. Bromley Corp.,623
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F.2d 1084, 1093 (5th Cir. 1980) (“In the instant case the [minor] was
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‘otherwise represented’; the child’s legal guardian, his mother, brought
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this action on his behalf. Thus, there was no need for the court to
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appoint a guardian ad litem.”); see also Brophy, 124 F.3d at 895
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(recognizing as a matter of practice that “it is usually [a minor’s
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representative] who . . . take[s] the initiative in suing on the child’s
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behalf”).
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Here, Plaintiffs attached as an exhibit to their motion a copy
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of the Complaint they assert they will file after decision is reached on
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their motion.3 (ECF No. 1-2.) Review of the Complaint reveals that the
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“natural parents” of the minor plaintiff will represent her in this
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action. (Compl. ¶ 3.) Further, nothing in the Complaint indicates the
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minor plaintiff’s parents will not adequately protect her interests. Nor
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is there evidence of a conflict of interest between the minor plaintiff
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and her parents. Therefore, Plaintiffs have not shown a “need for the
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court to appoint a guardian ad litem” in this case. Croce, 623 F.2d at
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1093; see Matter of Chi., Rock Island & Pac. R.R. Co., 788 F.2d at 1282
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(recognizing that representation of a minor by a parent “would normally
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be adequate if . . . there [i]s no conflict of interest” between the
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minor and parent).
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This decision is made notwithstanding Local Rule 202(a), which
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appears to require appointment of a guardian ad litem even when a minor
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is represented by her natural parent(s). See E.D. Cal. R. 102(d) (“[T]he
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Court in its discretion may make such orders . . . contrary to the
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provisions of the[] [Local] Rules as it may deem appropriate and in the
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interests of justice and case management . . . .”); E.D. Cal. R. 100(c)
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(“These
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consistently with and subordinately to . . . the Federal Rules of Civil
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Procedure . . . .”).
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///
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///
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///
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///
Local
Rules
.
.
.
shall
be
construed
and
administered
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Rule 3 prescribes: “A civil action is commenced by filing a
complaint with the court.” It is unclear why this civil action has been
commenced by the motion Plaintiffs filed. Further, Plaintiffs’
Complaint, which is attached to Plaintiffs’ motion, indicates that two
exhibits are attached to the Complaint. See Compl. ¶ 1, ECF No. 1-2.
However, no exhibits were attached as indicated.
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For the stated reasons, Plaintiffs’ motion (ECF No. 1) is
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denied.
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Dated:
June 12, 2013
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GARLAND E. BURRELL, JR.
Senior United States District Judge
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