Creamer v. Gildemeister et al

Filing 79

MEMORANDUM AND ORDER overruling 66 Motion to Dismiss. IT IS FURTHER ORDERED that the Court directs Magistrate Judge Teresa J. James to appoint counsel to represent plaintiff's interests in this matter, and expedite allappropriate pretrial proceedings. Signed by District Judge Kathryn H. Vratil on 2/28/2017. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARJORIE A. CREAMER,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,

v.
S. GILDEMEISTER,
Defendant.

CIVIL ACTION
No. 15-cv-4871-KHV

MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO
DISMISS AND APPOINTING COUNSEL TO REPRESENT PLAINTIFF
This matter is before the Court on defendant’s Motion to Dismiss (Doc. #66) filed
June 23, 2016 and the Court’s Memorandum and Order to Show Cause (Doc. #75) filed
December 21, 2016. Defendant asks this Court to dismiss plaintiff’s complaint on the
grounds that plaintiff (1) is not the real party in interest in violation of
Fed. R. Civ. P. 17(a) and (2) is not competent to sue under the law of her domicile in
violation of Fed. R. Civ. P. 17(b). Memorandum In Support Of Motion To Dismiss
(Doc. #67) filed June 23, 2016 at 2-3.
In the order to show cause, the Court found that plaintiff is the real party in
interest. Memorandum and Order to Show Cause (Doc. #75) at 3. The Court addressed
the issue of plaintiff’s competency by ordering the parties to show cause why Jared Muir,
plaintiff’s conservator, should not be substituted as plaintiff in this action. Defendant
responds that Jared Muir is no longer plaintiff’s conservator, but that because plaintiff
has been found incompetent, the Court should issue another appropriate order to protect

plaintiff’s interests. Response to Court’s Show Cause Order. (Doc. #77) filed January
18, 2017. The Court agrees.
In 2015, the District Court of Shawnee County, Kansas found plaintiff legally
incompetent and appointed a conservator to represent her interests.

Exhibit B To

Memorandum In Support Of Motion To Dismiss (Doc. #67-2). On November 3, 2016,
the Shawnee County District Court ended plaintiff’s conservatorship. Exhibit D To
Response To Court’s Show Cause Order (Doc. #77-4). Thus, the question is whether,
after the termination of her conservatorship, plaintiff remains incompetent. On this
record, absent evidence to the contrary, the Court finds that plaintiff remains
incompetent.
Under Fed. R. Civ. P. 17(b)(1),1 the law of a person’s domicile controls her
capacity to sue. A person’s domicile is the state in which she physically resides and

1

(b) Capacity to Sue or Be Sued. Capacity to sue or be sued is
determined as follows:
(1) for an individual who is not acting in a representative
capacity, by the law of the individual’s domicile . . .
(c) Minor or Incompetent Person.
(1) With a Representative. The following representatives
may sue or defend on behalf of a minor or an incompetent
person:
(A) a general guardian;
(B) a committee;
(C) a conservator; or
(D) a like fiduciary.
(2) Without a Representative. A minor or an incompetent
person who does not have a duly appointed representative
may sue by a next friend or by a guardian ad litem. The
court must appoint a guardian ad litem─or issue another
(continued…)
2

intends to remain indefinitely. Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir.
2014).

As previously noted, the record contains conflicting accounts of plaintiff’s

domicile.

Defendant alleges that plaintiff’s domicile is Kansas.

Memorandum In

Support Of Motion To Dismiss (Doc. #67) at 3. In response to the motion to dismiss,
plaintiff alleges that she is a resident of Missouri. Plaintiff [sic] Objections To Motions
Filed By Defendant’s Attorney On June 24, 2016 (Doc. #69) at 4. Plaintiff now alleges
that she is a resident of Kansas. Pleading In Response To Memorandum And Order To
Show Cause Of Dec. 21, 2016 (Doc. #76). For the purposes of this motion, the Court
assumes that plaintiff is domiciled in Kansas. The Court would issue the same order,
however, if it found that plaintiff was domiciled in Missouri.2
In Kansas, a termination of conservatorship means simply that the conservator’s
duties are terminated. Brice-Nash v. Brice-Nash, 5 Kan. App. 2d 332, 336, 615 P.2d
836, 839 (Kan. Ct. App. 1980). It does not mean that the conservatee’s competency has
changed. Id. at 336-37, 615 P.2d at 839-40. The only way for a person to regain
competency under Kansas law is through restoration of competency proceedings. Id. at
336, 615 P.2d at 840. Because no restoration of competency proceedings have occurred
in plaintiff’s case, plaintiff remains legally incompetent.

(…continued)
appropriate order──to protect a minor or incompetent
person who is unrepresented in an action.
2

Under Missouri law, once a person has been found incompetent, courts
apply a rebuttable presumption that the person remains incompetent. Hugenel v. Estate
of Keller, 867 S.W.2d 298, 304 (Mo. Ct. App. 1993).
3

Because plaintiff is incompetent, the Court must act to protect her interests in this
action. Under Fed. R. Civ. P. 17 (c)(2), when an incompetent person does not have a
representative, the court must “appoint a guardian ad litem – or issue another appropriate
order” to protect the incompetent person’s interests. Accordingly, this Court will appoint
an appropriate attorney to represent plaintiff. See D. Kan. Rule 83.5.3.1 (appointed
counsel in civil cases may receive reimbursement for out-of-pocket expenses).
IT IS THEREFORE ORDERED that defendant’s Motion to Dismiss (Doc.
#66) filed June 23, 2016 is OVERRULED.
IT IS FURTHER ORDERED that the Court directs Magistrate Judge Teresa J.
James to appoint counsel to represent plaintiff’s interests in this matter, and expedite all
appropriate pretrial proceedings.
Dated this 28th day of February, 2017 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

4