Wilkins v. Royal Caribbean Cruises, Ltd
*ORDER Appointing Gregg R. Schwartz Guardian ad Litem. Signed by Magistrate Judge Jonathan Goodman on 10/28/2014. (lpr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14‐21861‐CIV‐GOODMAN
MAURICE WILKINS, as parent
and natural guardian of BRYCEN
ROYAL CARIBBEAN CRUISES LTD., d/b/a
ROYAL CARIBBEAN INTERNATIONAL,
a foreign corporation,
ORDER APPOINTING GUARDIAN AD LITEM
This cause is before the Undersigned on the parties’ Joint Motion for Approval of
Settlement [ECF No. 18] and an October 22, 2014 hearing.1
The Parties have advised the Court that they have reached a settlement in this
case, which involves a minor.
Federal Rule of Civil Procedure 17(c)(1) authorizes a “general guardian” to “sue
or defend on behalf of a minor.” Rule 17(c)(2) provides that a minor “who does not
have a duly appointed representative may sue by a next friend or by a guardian ad
litem.” It also provides that the Court “must appoint a guardian ad litem – or issue
The Undersigned previously appointed a guardian ad litem in this case [ECF No.
26], however, that person had a conflict that prevented him from undertaking this role.
This Order appoints a new guardian.
another appropriate order – to protect a minor or incompetent person who is
unrepresented in an action.”
Although these rules do not expressly address when the Court should appoint a
guardian ad litem to represent a minor who, as is the case here, is already represented by
a parent in litigation, the Court has discretion to appoint or not appoint a guardian ad
litem in a particular case. Burke v. Smith, 252 F.3d 1260, 1264 (11th Cir. 2001); see generally
Ferrelli v. River Manor Health Center, 323 F.3d 196 (2d Cir. 2003) (decision to appoint a
guardian ad litem is governed by the abuse of discretion standard).
Because the settlement involves a minor, the Court believes it is prudent to
appoint a guardian ad litem to review the terms of the settlement agreement to ensure
that the terms are fair to the minor and that the Parties have taken all steps necessary to
protect and preserve the interests of the minor in the settlement proceeds should the
Court approve the settlement.
Therefore, it is ORDERED AND ADJUDGED that:
Attorney Gregg R. Schwartz (Florida Bar # 386110) is appointed to serve
as guardian ad litem for Brycen Wilkins in connection with the settlement of this
personal injury lawsuit;
Mr. Schwartz is directed to file a succinct Guardian Ad Litem Report with
the Court once he has reviewed the terms of the Settlement Agreement. The Report
shall (1) list the materials reviewed by the guardian ad litem; (2) list the other
information considered by the guardian ad litem, such as conversations with Plaintiff’s
counsel; (3) state any physical, mental and/or psychological damages suffered by the
minor child and note whether any damages are permanent or in any way disabling; (4)
state the current and projected costs of treatment for physical, mental and/or
psychological damages suffered by the minor child; (5) state whether the proposed
settlement will adequately cover those current and projected costs; (6) explain what
steps are necessary or suggested to preserve the minor’s interest in the settlement
proceeds;2 (7) set forth the amount of attorney’s fees and costs; (8) explain whether the
type, quantity and quality of the attorney’s work in this case justifies the amount of
attorney’s fees; (9) set forth the experience and qualifications of Plaintiff’s attorney; and
(10) state whether he recommends that the Court approve the proposed settlement. The
At the hearing, the Court discussed the notion that the account containing the
proceeds be restricted so that the principal and interest could not be withdrawn until
the minor reaches the age of majority. Upon further reflection, the Undersigned does
not believe this condition should necessarily be imposed now by the Court. Instead, the
guardian ad litem shall evaluate this possibility in his Report and make an appropriate
recommendation. There may well be entirely appropriate reasons for Mr. Wilkins to
withdraw funds from an account for his child’s benefit before Brycen reaches the age of
majority. To provide one hypothetical illustration, Brycen might want to attend a
summer camp focused on engineering because he is considering an engineering college
after high school. If the camp costs $7,500, then that expenditure might be entirely
appropriate even though it constitutes a not insignificant portion of the settlement
proceeds. Thus, under this hypothetical, an account restriction preventing any
withdrawals might actually be to Brycen’s detriment. But the Undersigned will await
the Report before reaching any final decisions about the structure of the mechanism
established to protect Brycen’s interest in the settlement proceeds.
Guardian Ad Litem Report shall be filed under seal within thirty (30) days of this
Plaintiff, Plaintiff’s counsel, Defendant and Defendant’s counsel are
directed to provide full and complete cooperation to the guardian ad litem.
In order to avoid any undue delay, Plaintiff’s counsel shall contact Mr.
Schwartz within three days of this Order and also send him a copy of this Order.
DONE AND ORDERED in Chambers, in Miami, Florida, October 28, 2014.
Copies furnished to:
All Counsel of Record
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