Smith et al v. Michigan Department of Health and Human Services et al

Filing 29

ORDER Granting 3 Motion for Appointment of Paul Smith as Next Friend to Minor Children. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Paul Smith, and Minor Children,
E.S., K.G., and J.S. by and through
Next Friend Paul Smith
Plaintiffs,
v.

Case No. 17-10629
Hon. Sean F. Cox

Michigan Department of Health and
Human Services, et. al.,
Defendants.
______________________________________/
ORDER GRANTING
PAUL SMITH’S MOTION FOR APPOINTMENT OF NEXT FRIEND
This matter is currently before the Court on Plaintiff Paul Smith’s “Motion for Ex Parte
Order for Appointment of Paul Smith as Next Friend for E.S. year of birth 2003, K.G. year of
birth 2013 and J.S. year of birth 2014 Minor Children.” (Doc. # 3). Defendants have filed
responses opposing the motion.
For the reasons below, the Court shall PERMIT Plaintiff Paul Smith, through his
attorney, to bring this § 1983 action on behalf of himself and his minor children. Should
conflicts actually present, the Court will revisit this issue.
Federal Rule of Civil Procedure 17(c) controls the issue of capacity to sue:
(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 appropriate order–to protect a
minor or incompetent person who is unrepresented in an action.
Fed. R. Civ. P. 17(c)(1)-(2). The Sixth Circuit has held that “[t]he decision ... to appoint a next
friend or guardian ad litem rests with the sound discretion of the district court...” In re Kloian,
179 Fed. App’x 262, 265 (6th Cir. 2006). In order for a parent to file an action on behalf of their
minor child as the child’s next friend, the parent must retain an attorney. Simmons v. Boys and
Girls Club of Greater Kalamazoo, 2010 WL 3386013, at *1 (W.D. Mich. Aug. 24, 2010)
Here, Paul Smith, by and through his attorney, seeks to appear in this § 1983 action
individually and as next friend on behalf of his minor children, E.S., K.G., and J.S. Smith has
represented that he is the biological father of all three minor plaintiffs, that he shares joint legal
and physical custody of each of the minor plaintiffs, that the biological mothers of the minor
plaintiffs will be kept apprised of the proceedings as they relate to their respective children, and
that there are no actual or perceived conflicts of interests that exist relative to the claims
advanced by Paul Smith and those of the minor plaintiffs.
Defendants have opposed Smith’s motion on the alleged basis of potential conflicts of
interest. Defendants have failed to point to anything in the record establishing that Paul Smith
(as the biological father and joint legal custodian of the minor children) is unable to proceed in
the best interest of his minor children. Nor have the defendants established any concrete conflict
of interest.
Accordingly, IT IS ORDERED that Plaintiff Paul Smith is permitted to bring this suit on
behalf of himself and his minor children, E.S., K.G., and J.S., as next friend so long as the claims
are pursued by an attorney. As indicated above, the Court will revisit this issue should conflicts

actually present.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: May 26, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record on
May 26, 2017, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager