D.H. v. City Of Oakland

Filing 54

ORDER re docket nos. #47 and #50. Signed by Judge Richard Seeborg on 1/20/17. (cl, COURT STAFF) (Filed on 1/20/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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D.H.,

Case No. 16-cv-01669-RS
Plaintiff,

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v.

ORDER RE DOCKET NOS. 47 AND 50

United States District Court
Northern District of California

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CITY OF OAKLAND, et al.,
Defendants.

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Civil Local Rule 7-1(a) sets out the means by which “[a]ny written request to the Court for

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an order” must be presented. Most commonly, motions are to be made on 35 days’ notice, as

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provided in Rule 7-2. Where a substantive matter warrants expedited consideration, a request to

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shorten time may be presented under Rule 6-2 or 6-3. While the term “ex parte” in state court

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practice has come to mean motions submitted on abbreviated notice or with no notice, and with

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the understanding that expedited court action is requested, in this forum the term refers only to

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motions “filed without notice to opposing party,” and such motions are permitted only under very

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limited circumstances, which do not appear to be present in this action. See Rule 7-10.

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Plaintiff’s motions in this action, although labeled as “ex parte” were in fact automatically

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served through the ECF system when filed. Accordingly, they were not made “ex parte.”

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Because they were labeled merely as sealing motions and were not noticed for hearing and

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accompanied by a Rule 6 request to shorten time, however, they were not flagged for expedited

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consideration.

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Given that the matter has now come to the Court’s attention, plaintiff will not be required

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to correct the procedural errors by re-filing with a Rule 6 request to shorten time. Turning to the

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substance of the motions, additional issues arise. Plaintiff’s “Second Motion to File Under Seal”

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(Dkt. No 47)1 includes a motion to appoint Teandra Butler as the guardian ad litem for the plaintiff

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in this action, a son of the decedent, referred to as D.H. in the complaint, and as D.M.H or D.M.H

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II, in the unredacted versions of the motion. See Dkt. No. 44-4. The motion also seeks approval

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of a minor’s compromise on plaintiff’s behalf.
The proposed order submitted in Dkt. No. 47, however, would appoint one Tylena

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Livingston as guardian ad litem for “D.S.H.” a person who appears to a different child of the
decedent, a daughter, who is not a plaintiff in this action. See Dkt. Nos. 47-7 (redacted version of

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United States District Court
Northern District of California

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proposed order) and 47-8 (unredacted version of proposed order). D.S.H appears to be one of the

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plaintiffs in the related action, but her counsel of record in that action is not the same as plaintiff’s

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counsel in this action. Accordingly, a proposed order must be submitted that appoints Teandra

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Butler and approves the compromise on behalf of plaintiff D.H.

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Plaintiff’s “Third Motion to File Under Seal” (Dkt. No 50) relates to appointment of

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Livingston for D.S.H., and approval of the settlement as to D.S.H. As noted, D.S.H. is not a party

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in this action, and even taking into account the related action, there is no record that plaintiff’s

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counsel in this action represents her. The court recognizes that the parties have cooperated to

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achieve a global settlement across both actions, and that plaintiff’s counsel in this action may very

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well be authorized to act for both children and their guardians. Nevertheless, it would be

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inappropriate to appoint a guardian ad litem and approve a minor’s compromise for a non-party,

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especially without a clear record that counsel represents her. The parties may address the problem

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in such manner as they see fit, either by adding D.S.H. to this action, or by seeking appointment of

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a guardian ad litem and approval of her minor’s compromise in the related action instead of here.

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A “First Motion to File Under Seal” has been withdrawn as erroneously filed, and removed from
the record. See Dkt. Nos. 46, 49, and 52.

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CASE NO.

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16-cv-01669-RS

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In either event, any attorneys presenting motions on behalf of D.S.H. should ensure they have

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appeared as her counsel of record.

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IT IS SO ORDERED.

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Dated: January 20, 2017
______________________________________
RICHARD SEEBORG
United States District Judge

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United States District Court
Northern District of California

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CASE NO.

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16-cv-01669-RS