Shamberger et al v. Tello et al

Filing 31

ORDER signed by Senior Judge William B. Shubb on 11/23/16 ORDERING that this action be, and the same hereby is, DISMISSED without prejudice; AND IT IS FURTHER ORDERED that defendants Motion for summary judgment or, alternatively, summary adjudication (Docket No. 23 ) be, and the same hereby is, DENIED AS MOOT. CASE CLOSED (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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LINDSEY SHAMBERGER, as an
individual and on behalf of
her minor son, E.C.,

CIV NO.: 2:14-243 WBS DB
ORDER

Plaintiffs,
v.
DANA TELLO,

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Defendant.

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----oo0oo----

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Plaintiffs Lindsey Shamberger and her minor son E.C.

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brought this action against Defendant Dana Tello, alleging that

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defendant conducted an unreasonable search of their residence in

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violation of their constitutional rights under 42 U.S.C. § 1983.

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(Compl. ¶ 9 (Docket No. 1).)

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judgment or, alternatively, summary adjudication on September 30,

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2016.

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Motion, plaintiff Lindsey Shamberger agreed to be dismissed from

Defendant moved for summary

(Def’s Mot. (Docket No. 23).)

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After defendant filed the

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the action.

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stipulation that they intend “to effectuate the dismissal and/or

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compromise of the claims of Plaintiff E.C.” as well.

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30 at 2.)

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(Docket No. 27.)

The parties stated in a

(Docket No.

To date, however, no dismissal has been filed for E.C.
No guardian ad litem was ever appointed or offered for

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E.C.

E.C. cannot proceed in this action by himself.

See Fed. R.

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Civ. P. 17(c)(2) (“The court must appoint a guardian ad litem--or

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issue another appropriate order--to protect a minor . . . who is

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unrepresented in an action.”); Johns v. Cty. of San Diego, 114

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F.3d 874, 877 (9th Cir. 1997) (“Because [plaintiff] is a minor,

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he lacked the capacity to sue on his own.”).

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ad litem has been offered for a minor, the court may dismiss the

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minor’s case.

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5785550, at *3 (N.D. Cal. Oct. 5, 2015) (dismissing action where

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no guardian ad litem was offered for minor plaintiff); Watson v.

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Cty. of Santa Clara, 468 F. Supp. 2d 1150, 1155 (N.D. Cal. 2007)

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(same); L.S. ex rel. R.S. v. Panama Buena Vista Union Sch. Dist.,

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No. 1:12-CV-00744 LJO, 2012 WL 3236743, at *2 (E.D. Cal. Aug. 6,

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2012) (“[T]he matter will not proceed unless/until the child is

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properly appointed a guardian ad litem.”). Accordingly, the court

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will dismiss E.C. from this action.

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Where no guardian

See M. L. v. Barth, No. 14-CV-05423-LHK, 2015 WL

Because no plaintiff remains in this action, the court
will deny defendant’s Motion as moot.
IT IS THEREFORE ORDERED that this action be, and the
same hereby is, DISMISSED without prejudice;
AND IT IS FURTHER ORDERED that defendant’s Motion for

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summary judgment or, alternatively, summary adjudication (Docket

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No. 23) be, and the same hereby is, DENIED AS MOOT.
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Dated:

November 23, 2016

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