Mickelson v. Mickelson et al

Filing 6

MEMORANDUM OPINION AND ORDER: (1) Pla's 4 Motion for Injunctive Relief is DENIED. (2) Pla's 5 Motion for next friend assistance is DENIED. Signed by Judge Karen K. Caldwell on July 20, 2016. (AWD) cc: Pla via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
JUDITH MICKELSON,

CIVIL ACTION NO. 5:16-cv-267-KKC

Plaintiff,
MEMORANDUM
OPINION AND ORDER

V.
JULIAN MICKELSON, et al.,
Defendants.

*** *** ***
This matter is before the Court on Plaintiff Judith Mickelson’s motions for injunctive
relief and for next friend assistance. (DE 4; DE 5). Plaintiff’s pro se motion—and pro se
complaint—contain

broad

allegations

of

tortious

conduct

related

to

Defendants’

administration of trusts created upon the death of the four Mickelson children’s parents.
(DE 1).
I. DISCUSSION
A. INJUNCTIVE RELIEF
The Court recognizes that Plaintiff is proceeding pro se; therefore, the Court
evaluates Plaintiff’s filings with some latitude. The Court interprets Plaintiff’s motion for
injunctive relief as a motion for a Temporary Restraining Order (“TRO”). Federal Rule of
Civil Procedure 65 (“FRCP”) provides that a Court may issue a preliminary injunction only
after the adverse party has received notice. Fed. R. Civ. P. 65(a)(1). Plaintiff does not allege
that any Defendant has received notice of this action, thus, the only injunctive relief
available to Plaintiff is a TRO. Fed. R. Civ. P. 65(b)(1).

Plaintiff’s request for a temporary restraining order, however, has two fatal flaws.
First, Plaintiff has not certified in writing the efforts she has made to provide notice to the
Defendants. See Fed. R. Civ. P. 65(b)(1)(B). Second, Plaintiff does not address the standard
under which a court considers whether to grant a motion for a temporary restraining order.
When evaluating the merits of a temporary restraining order, courts must consider “(1)
whether the movant has a strong likelihood of success on the merits, (2) whether the
movant would suffer irreparable injury absent a [TRO], (3) whether granting the [TRO]
would cause substantial harm to others, and (4) whether the public interest would be serve
by granting the [TRO].” N.E. Ohio Coal. for the Homeless & Serv. Emps. Int’l Union, Local
1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006); see Fed. R. Civ. P. 65(b)(1)(A).
Plaintiff’s motion does not address and does not satisfy any of the elements necessary for a
temporary restraining order. (DE 4.)
B. NEXT FRIEND ASSISTANCE
Plaintiff also requests that this action be prosecuted on her behalf by a “next friend,”
one Charles Baker, pursuant to FRCP 17(c)(2). (DE 5.) Rule 17(c)(2) provides that: “an
incompetent person who does not have a duly appointed representative may sue by a next
friend.” The term “incompetent person” in Rule 17(c) refers to “a person without the
capacity to litigate.” Thomas v. Humfield, 916 F.2d 1032, 1035 (5th Cir. 1990), aff'd, 32
F.3d 566 (5th Cir. 1994), cert. denied, 513 U.S. 1167 (1995). Next friends appear in court on
behalf of persons who are unable to seek relief themselves, usually because of mental
incompetence. Whitmore v. Arkansas, 495 U.S. 149, 162 (1990).
This Court finds that Plaintiff fails to satisfy the requirements of Rule 17(c) because
Plaintiff has neither made a threshold showing of incompetence nor alleged that she has
ever been adjudicated incompetent. See Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir. 1979)
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(“Some minimum showing of incompetence must appear before a hearing is necessary.”).
Plaintiff’s bare assertion that she has several disabilities that qualify her for relief under
Title II of the Americans with Disabilities Act (“ADA”) is insufficient to justify appointment
of a next friend for two reasons. (DE 5.) First, a finding of disability under the ADA is not
equivalent to finding an individual incapable of litigation. See 42 U.S.C. § 12131. And
second, Plaintiff’s prosecution of this case and her litigation in the Northern District of
Illinois involving similar issues, suggest that Plaintiff is able to seek relief on her own. See
Mickelson v. Mickelson, 2013 WL 3774004, at *2 (N.D. Ill. July 18, 2013), aff'd, 577 F. App'x
613 (7th Cir. 2014) (“On September 6, 2012, the Court, with Plaintiff's consent, allowed
Plaintiff's counsel to withdraw. She has proceeded pro se since.”).

Accordingly, IT IS ORDERED that:
1. Plaintiff’s motion for injunctive relief (DE 4) is DENIED; and
2. Plaintiff’s motion for next friend assistance (DE 5) is DENIED.
Dated July 20, 2016.

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