Shankar v. United States Department of Homeland Security et al

Filing 61

ORDER RE: STIPULATED REQUEST FOR DISMISSAL OF FEDERAL DEFENDANTS 57 . Signed by Judge Nathanael Cousins on 3/4/14. (lmh, COURT STAFF) (Filed on 3/4/2014)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11
RYAN SHANKAR, a Conserved Adult, by

Case No. 13-cv-01490 NC

VISHNU SHANKAR,

ORDER RE: STIPULATED
REQUEST FOR DISMISSAL OF
THE FEDERAL DEFENDANTS

12 and through his father and Conservator,
13

Plaintiff,

14
15

v.

Re: Dkt. No. 57

UNITED STATES DEPARTMENT OF

16 HOMELAND SECURITY, et al.,
17

Defendants.

18
19

On February 6, 2014, the Court issued an order granting in part and denying in part

20 the federal defendants’ motion to dismiss the first amended complaint. Dkt. No. 56. The
21 Court gave plaintiff leave to amend the complaint by March 5, 2014. Id.
22

Additionally, the order noted that there is a question about whether plaintiff is

23 competent and could adequately protect his interests and that it appears that the limited
24 conservatorship currently in place does not empower plaintiff’s father to make all decisions
25 related to this action. Id. The Court ordered that, by March 5, 2014, plaintiff’s counsel (1)
26 must explain to plaintiff the purpose and effect of a guardian ad litem appointment; (2)
27 must file a statement informing the Court and the other parties about whether or not
28 plaintiff consents to the appointment of a guardian ad litem; and (3) if plaintiff consents to
Case No. 13-cv-01490 NC
ORDER RE: STIPULATED
REQUEST FOR DISMISSAL

1 the appointment, plaintiff’s counsel must file a request to appoint a guardian ad litem,
2 identifying the person who is proposed to serve as a guardian ad litem and explaining why
3 that person would be a suitable guardian ad litem. Id. The Court further noted that, if
4 plaintiff does not consent to the appointment of a guardian ad litem, the Court will set
5 deadlines for briefing and a hearing on the issue of whether plaintiff is incompetent within
6 the meaning of Federal Rule of Civil Procedure 17(c) and whether plaintiff’s interests in
7 this action are adequately protected.
8

On February 24, 2014, plaintiff and the federal defendants filed a stipulated request

9 to dismiss the federal defendants with prejudice from this action. Dkt. No. 57. On
10 February 26, 2014, the Court held a status conference to address the request for dismissal,
11 and the issue of plaintiff’s capacity and his conservator’s authority to (1) compromise and
12 dismiss the claims against any of the defendants; and (2) to pursue the litigation against any
13 remaining defendants.
14

As the Court noted at the hearing, the limited conservatorship gives plaintiff’s father

15 “full powers to collect and compromise the claim of the Conservatee which pertains to [this
16 action].” Dkt. No. 40 at 11. The order of appointment requires the conservator to petition
17 the issuing court for approval of any settlement or compromise of this litigation. Id. At the
18 hearing, plaintiff’s counsel took the position that the stipulated request for dismissal is
19 within the powers given to the conservator “to collect and compromise” and indicated that
20 she intends to file a petition for approval of the settlement in state court, as required by the
21 order of appointment. While this Court does not make a determination at this time as to the
22 effect of the state court’s decision on the petition for approval of settlement, that decision
23 will provide a better record and allow the Court to make a more informed determination on
24 the stipulated request for dismissal of the federal defendants. Accordingly, the stipulated
25 request for dismissal is taken under submission pending the state court’s decision on
26 plaintiff’s petition for approval of the settlement. By March 19, 2014, plaintiff’s counsel
27 must file a report informing the Court about the status of the state court approval process.
28 At the time of filing of the petition for settlement approval in state court, plaintiff’s counsel
Case No. 13-cv-01490 NC
ORDER RE: STIPULATED
REQUEST FOR DISMISSAL

2

so
tice
fi
s
aching a cop of the pe
py
etition. In l
light of
1 must als file a not of the filing in this Court, atta
ding
sal
ederal defen
ndants, plain does n
ntiff
not
2 the pend stipulated request for dismiss of the fe
ected by the Court’s Fe
e
ebruary 6 o
order, Dkt. N
No.
3 need to file an amended complaint as dire

4 56.
5

Additionally, at the statu hearing counsel for United Air
,
us
c
rlines and fo plaintiff
or

t
a
rocess of dis
scussing a p
potential se
ettlement wi
ith
6 informed the Court that they are in the pr
A
9,
aintiff and U
United Airli
ines must fi a notice of
ile
7 United Airlines. By March 19 2014, pla
ent,
r
a
t
otiate a sett
tlement sup
pported by g
good
8 settleme a joint request for additional time to nego
hat
mpts
ch
ment
not
ccessful and no
d
9 cause, or a notice th the attem to reac a settlem have n been suc
d
o
t
d,
10 further discussions are anticipated at this time. If no settlement is reached the Court will
0
f
er
ng
to
his
ainst United
d
11 issue a further orde addressin plaintiff’s capacity t litigate th case aga
1
tiff’s counse informed the Court a the status hearing th plaintiff is
el
d
at
s
hat
f
12 Airlines. As plaint
2
t
o
ntment of a guardian a litem, she does not n
ad
need to file any
13 unable to consent to the appoin
3
s
n
ourt’s Febru
uary 6 orde Dkt. No. 56.
er,
14 further statement on this issue to comply with the Co
4

15
5

Th settlemen conferen with Jud Maria-E
he
nt
nce
dge
Elena James, currently set for Ma
y
arch

4,
o
r.
rt
er
ropriate to
16 28, 2014 remains on calendar The Cour will consider whethe it is appr
6
e
ment
rence after reviewing th parties’ submission due by M
r
he
ns
March
17 continue the settlem confer
7
4.
18 19, 2014
8

19
9

IT IS SO OR
T
RDERED.

20
0

Date: March 4, 2014

____
__________
__________
_____
Nath
hanael M. C
Cousins
Unit States M
ted
Magistrate J
Judge

21
1
22
2
23
3
24
4
25
5
26
6
27
7
28
8
Case No. 13-cv-0149 NC
90
ORDER RE: STIPU
R
ULATED
REQUEST FOR DIS
SMISSAL

3