Wheeler v. United States of America

Filing 113

MEMORANDUM AND ORDER granting 112 Sealed Motion. The court has reviewed the plaintiff's submission and finds good cause for the appointment of a guardian ad litem pursuant to Fed. R. Civ. P. 17(c). The court hereby appoints Michael J. Fleming to represent L.W.'s interests in the present Kansas civil action. Given this appointment, the court agrees that the present trial setting should be and hereby is continued. By separate Order, the court will arrange for a status conference to schedule a new trial date. Signed by District Judge J. Thomas Marten on 2/26/2019. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RICKY WHEELER, personally and as the
Special Administrator of the Estate of
Gretchen Konrad, deceased, and as
the father and natural guardian of
L.W., a minor,
Plaintiff,
vs.

No. 17-2249-JTM

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM AND ORDER

This matter is before the court on the plaintiff’s Motion for Continuance and
Appointment. (Dkt. 112). The plaintiff, Ricky Wheeler, asks for the appointment of a
guardian ad litem to represent the interests of the minor child, L.W., and for continuance
of the currently scheduled trial. The parties also jointly ask for the scheduling of a status
conference to address the case.
“As a general matter, ‘a federal court cannot appoint a guardian ad litem in an
action in which the infant or incompetent already is represented by someone who is
considered appropriate under the law of the forum state.’” Rice ex rel. CIR v. Cornerstone
Hosp., 589 Fed.Appx. 688, 691 (5th Cir. 2014) (quoting 6A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, FEDERAL PRACTICE

AND

PROCEDURE § 1570, p. 665 (2010)).

However, “Rule 17(c) empowers a federal court to appoint a next friend if the infant's
legal representative is unable or refuses to act.” Susan R.M. by Charles L.M. v. N.E. Indep.
Sch. Dist., 818 F.2d 455, 458 (5th Cir.1987); see also Ad Hoc Comm. of Concerned Teachers v.
Greenburgh No. 11 Union Free Sch. Dist., 873 F.2d 25, 29 (2d Cir.1989) (Rule 17(c) “gives a
federal court power to authorize someone other than a lawful representative to sue on
behalf of an infant or incompetent person where that representative is unable, unwilling
or refuses to act or has interests which conflict with those of the infant or incompetent.”).
The court has an obligation to “exercise oversight of the minors' interests and to
be protective of their claims.” Rice, 589 Fed.Appx. at 691. “The minor's best interests are
of paramount importance [and] the ultimate ‘decision as to whether or not to appoint [a
guardian ad litem] rests with the sound discretion of the district court.” Sam M. v. Carcieri,
608 F.3d 77, 85 (1st Cir. 2010), quoting Developmental Disabilities Advocacy Ctr., Inc. v.
Melton, 689 F.2d 281, 285 (1st Cir.1982)). See Rodriguez v. City of New York, 2011 WL
2259745, *2 (E.D.N.Y. 2011) (appointing third-party representative in place of parents).
The court has reviewed the plaintiff’s submission and finds good cause for the
appointment of a guardian ad litem pursuant to Fed. R. Civ. P. 17(c). The court hereby
appoints Michael J. Fleming to represent L.W.’s interests in the present Kansas civil
action.
Given this appointment, the court agrees that the present trial setting should be
and hereby is continued. By separate Order, the court will arrange for a status conference
to schedule a new trial date.
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IT IS SO ORDERED this day of February, 2019 that plaintiff’s Motion for
Appointment and Continuance (Dkt. 112) is granted as provided herein.

s/ J. Thomas Marten
J. Thomas Marten, Judge

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