Sack et al v. North East Medical Services et al

Filing 17

ORDER by Judge Maria-Elena James granting 15 Motion to Appoint Guardian ad Litem. (mejlc3, COURT STAFF) (Filed on 10/7/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL SACK, et al.,

Case No. 16-cv-05505-MEJ

Plaintiffs,
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ORDER APPOINTING GUARDIAN
AD LITEM

v.
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NORTH EAST MEDICAL SERVICES, et
al.,

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United States District Court
Northern District of California

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Re: Dkt. No. 15

Defendants.

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Plaintiffs Michael Sack, Jeong Hee Sack, and their minor child, S.S.S. (together,

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“Plaintiffs”), have filed a complaint against the United States of America, the United States

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Department of Health and Human Services, North East Medical Services (“NEMS”), and Dr.

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Grace Fuong, M.D. (“Fuong”) (together, “Defendants”). See Compl., Dkt. No. 1. They allege Dr.

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Fuong failed to timely diagnose S.S.S.’ appendicitis, such that his appendix ruptured and could not

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be removed when finally diagnosed. Id. at 3. They bring this action under the Federal Tort

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Claims Act for personal injuries they sustained as a result of alleged medical negligence in the

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diagnosis and treatment of S.S.S. See generally id. Pending before the Court is Plaintiffs’ ex

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parte petition to appoint Michael Sack as a guardian ad litem for S.S.S. See Pet., Dkt. No. 15.

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“District courts have a special duty, derived from Federal Rule of Civil Procedure 17(c), to

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safeguard the interests of litigants who are minors.” Robidoux v. Rosengren, 638 F.3d 1177, 1181

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(9th Cir. 2011); see also Bhatia v. Corrigan, 2007 WL 1455908, at *1 (N.D. Cal. May 16, 2007)

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(when a minor is a litigant, courts have “a duty to ensure that [the] minor’s interest[s] are

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protected.”). Pursuant to Rule 17(c), a district court must appoint a guardian ad litem (or issue

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another appropriate order) to protect an unrepresented minor. Fed. R. Civ. P. 17(c)(2). “[A]

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parent who is also a party to the lawsuit is presumed to be a suitable representative, and so the

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court often appoints the parent as guardian ad litem upon receipt of an ex parte application without

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exercising much discretion.” Brown v. Alexander, 2015 WL 7350183, at *1 (N.D. Cal. Nov. 20,

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2015) (citing Bhatia, 2007 WL 1455908, at *1). If a parent has an actual or potential conflict of

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interest with the child, however, the parent cannot be appointed as guardian ad litem. Id. After

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appointing a guardian ad litem, the court has a continuing obligation to supervise the guardian’s

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work, and may remove the guardian if a conflict of interest develops between the parent and child.

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Id. at *1-2 (removing guardian ad litem based on conflict).

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Based on the record before it, the Court finds Michael Sacks should be appointed as
guardian ad litem to protect S.S.S. S.S.S. is ten years old. Pet. ¶ 1. He has no general guardian

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and no previous petition for the appointment of a guardian ad litem has been filed in this action.

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United States District Court
Northern District of California

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Id. ¶ 3. There is no indication, based on the allegations in the Complaint and the Petition, that an

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actual conflict of interest exists or could potentially develop between S.S.S. and his father.

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Accordingly, the Court GRANTS Plaintiff’s petition and APPOINTS Michael Sacks as
guardian ad litem for his son, S.S.S.
IT IS SO ORDERED.

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Dated: October 7, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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