In Re: Complaint and Petition of KDME, Inc. as Owner of a Certain 2008 Hurricane Sundeck 195 for Exoneration from or Limitation of Liability

Filing 15

REPORT AND RECOMMENDATION Approving #14 Stipulated Minors' Compromise. Any written objections to this report must be filed with the court and served on all parties no later than 10/24/2017. Any reply to the objections shall be filed with the court and served on all parties no later than 10/31/2017. Signed by Magistrate Judge Mitchell D. Dembin on 10/10/2017.(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IN RE: COMPLAINT AND
PETITION OF KDME, INC. AS
OWNER AND CUSTODIAN OF A
CERTAIN 2008 HURRICAN
SUNDECK 195 FOR
EXONERATION FROM OR
LIMITATION OF LIABILITY,

Case No.: 16cv1313-H-MDD
REPORT AND
RECOMMENDATION
APPROVING STIPULATED
MINORS’ COMPROMISE
[ECF NO. 14]

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On June 1, 2016, Petitioner KDME1 (“Petitioner”) filed a Complaint for

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Exoneration from or Limitation of Liability. (ECF No. 1). “Petitioner filed

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the complaint as owner of a 2008 Hurricane Sundeck 195 vessel, which was

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allegedly involved in an incident on or near San Diego Bay.” (ECF No. 6 at 1).

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On September 13, 2017, Petitioner and Jakob Avitan, Oshrat Avitan, Amit

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Avitan (a minor), Ido Avitan (a minor) and Roy Avitan (a minor) settled this

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action and filed a Stipulation for an Order Approving Minor’s (sic)

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Petitioner KDME, Inc., is a corporation incorporated under and existing pursuant to the
laws of California. (ECF No. 9 at 2).
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Compromise. (ECF No. 14). Petitioner and the Avitans2 “agree to mutually

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release each other in exchange for a waiver of all costs and attorneys fees.”

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(Id. at 1).

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It is well settled that the district court has a special duty, rising out of

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Federal Rule of Civil Procedure 17(c), to safeguard the interests of litigants

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who are minors within the context of settlements proposed in civil suits with

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minors and plaintiffs. The duty obliges the court to “conduct its own inquiry

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to determine whether the settlement serves the best interests of the minor.”

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Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978). The Ninth Circuit

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has held that this “duty requires only that the district court determine

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whether the net amount distributed to [a] minor plaintiff in the proposed

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settlement is fair and reasonable, without regard to the proportion of the

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total settlement value. . . .” Robidoux v. Rosengren, 638 F.3d 1177, 1179 (9th

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Cir. 2011). Here, the Court has considered the Petition, the supplemental

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information and after conducting an independent inquiry and evaluation of

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the proposed settlement, the Court finds that the proposed settlement is fair

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and reasonable and serves the best interest of Amit, Ido and Roy Avitan, the

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minors in this case.

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IT IS HEREBY RECOMMENDED that the settlement between

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Petitioner KDME, Inc. and Amit Avitan (DOB 7/2/2000), Ido Avitan (DOB

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3/31/2005); and Roy Avitan (DOB 12/25/2007) be approved. The Settlement

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as to Petitioner and the named minor Avitan children is fully set forth as

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Exhibit A (Settlement Agreement and Mutual Release and Waiver) in the

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Attached as Exhibit B to the Stipulation for an Order Approving Minor’s Compromise is
an Application for Appointment of Guardian Ad Litem and Compromise of Minor’s Claims.
The motion seeks to appoint Jakob and Oshrat Avitan as guardians ad litem for their
named minor children Amit, Ido and Roy Avitan. (Id. at Ex. B at 12).
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Stipulation of the Parties for an Order Approving Minor’s Compromise. (ECF

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14, Ex. A at 7).

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The Settlement “fully and forever” releases and discharges “each other

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from any and all manner of actions, suits, liens, debts, damages, judgments,

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injuries, claims, torts, contracts, controversies, agreements and demands

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whatsoever. . . .” (Id. at 8). The parties also “agree to waive their respective

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costs and attorney’s fees incurred in connection with the Incident and/or the

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Lawsuit.” (Id. at 7).

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IT IS FURTHER RECOMMENDED that Jakob and Oshrat Avitan be

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appointed guardians ad litem for their minor children Amit, Ido and Roy

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Avitan, in addition, Jakob Avitan shall be authorized to execute any and all

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documents reasonably necessary to carry out the terms of the settlement.

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This Report and Recommendation of the undersigned Magistrate Judge

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is submitted to the United States District Judge assigned to this case,

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pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any written objections to

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this report must be filed with the court and served on all parties no later

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than October 24, 2017. The document should be captioned “Objections to

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Report and Recommendation.”

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Any reply to the objections shall be filed with the court and served on

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all parties no later than October 31, 2017. The parties are advised that

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failure to file objections within the specified time may waive the right to

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those objections.

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Dated: October 10, 2017

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