Morris et al v. Hernandez et al

Filing 126

ORDER Dismissing Case without prejudice. Case terminated. Signed by Judge Jennifer A. Dorsey on 10/5/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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J.M.M. et al.,
2:14-cv-01197-JAD-NJK

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Plaintiffs

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v.

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Andrea Hernandez, et al.,

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Defendants

Order Dismissing Case without
Prejudice

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Minor plaintiffs J.M.M. and I.M.—through their natural mother Jessica Hargrove—sue Clark

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County, a handful of Clark County Department of Family Services (DFS) employees, and their

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former foster parents Andrea and Waldo Hernandez for injuries the children allegedly sustained

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while in the Hernandezes’ care.1 After plaintiffs admitted in court filings that Hargrove had told

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counsel that she no longer wished to pursue these claims on the children’s behalf, I ordered plaintiffs

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to show cause why this case should not be dismissed. Plaintiffs have failed to discharge their

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obligations under my show-cause order, so I dismiss this case without prejudice.

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Discussion

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On December 4, 2015, after Hargrove repeatedly failed to cooperate with plaintiffs’ counsel,

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Ganz & Hauf, the firm filed an emergency motion to replace Hargrove and to appoint attorney Dara

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Goldsmith as guardian ad litem.2 Magistrate Judge Koppe set an expedited briefing schedule and set

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the motion for hearing on December 17, 2015.3

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ECF 1-2.

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ECF No. 87.

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ECF No. 88.

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Page 1 of 4

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On the eve of the hearing, the parties filed a stipulation to continue the hearing until after

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Hargrove’s termination-of-parental-rights hearing two weeks later.4 The magistrate judge denied the

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stipulation, vacated the hearing, and denied plaintiffs’ motion to replace Hargrove without prejudice

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based on the parties’ representations that Hargrove’s parental rights were in a state of flux and would

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soon be resolved.5

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Immediately after Magistrate Judge Koppe denied the motion, plaintiffs filed a renewed

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emergency motion to replace Hargrove,6 arguing that she “is unsuitable as a representative” “and is

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not willing to protect [plaintiffs’] interests in this matter” because she had sent Ganz & Hauf an e-

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mail stating that she “will no longer be pursing with the civil lawsuit and will no longer be needing

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[the firm’s] services.”7 Noting that plaintiffs had expressly sought to delay the ruling on the first

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emergency motion until after the hearing on Hargrove’s parental rights—which had not yet taken

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place—Magistrate Judge Koppe again denied plaintiffs’ motion without prejudice.8 In that order, the

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magistrate judge invited plaintiffs to file a renewed motion for appointment of guardian ad litem

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once Hargrove’s parental rights had been adjudicated and counsel could advise the court on the

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impact of that determination on Hargrove’s continued representation of plaintiffs in this case.9

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Two weeks later, Michael Kane of The 702 Firm—who had never appeared in this case but
claims to be co-counsel with Ganz & Hauf—moved me to reconsider Magistrate Judge Koppe’s

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ECF No. 91.

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ECF No. 92.

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ECF No. 94.

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ECF No. 94 at 2–3.

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ECF No. 96 at 2, n.1. In denying the motion, the magistrate judge also noted that it was defective
in numerous respects: it did not comply with the technical and substantive requirements for seeking
resolution of an emergency dispute, and it contains several factual representations by counsel that are
not supported by declaration.
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Id.
Page 2 of 4

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ruling.10 Defendants responded with a “motion for determination of counsel” in which they pointed

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out that Hargrove had fired Ganz & Hauf and that neither Kane nor anyone from his firm had

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appeared in this case11 (which prompted Kane to file a notice of appearance),12 and I set both matters

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for hearing.13

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At the hearing, representatives of The 702 Firm and Ganz & Hauf explained that Hargrove

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had originally retained The 702 Firm, that The 702 Firm then referred the case to Ganz & Hauf for

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litigation, and that these firms had a fee-sharing agreement. Neither firm was still in contact with

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Hargrove, but defendants’ counsel represented that they had notified Hargrove of the hearing.

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After hearing argument from both parties, I denied plaintiffs’ motion to reconsider because

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they failed to show that the magistrate judge’s order was clearly erroneous or contrary to law. I then

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construed defendants’ “motion for determination of counsel” as a motion for an order to show cause,

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and I gave plaintiffs ten days to show cause why this case should not be dismissed based on

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Hargrove’s conveyance of her desire and intention not to pursue this case. I cautioned plaintiffs that,

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in their response, they would need to establish the standard governing under what circumstances a

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parent and guardian can dismiss a claim on behalf of a minor. I also cautioned plaintiffs that, if they

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wanted a court order to compel production of family-court documents establishing the status of

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Hargrove’s parental rights, they would need to demonstrate to me that I have the authority to order

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production of these documents.

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Plaintiffs’ counsel cite to no legal authority in their six-page response to my show-cause

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order.14 They do not attempt to identify the standard for a parent and guardian to dismiss claims

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brought on behalf of minors; instead, they continue to conclusorily argue that their own client

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ECF No. 97.

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ECF No. 99.

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ECF No. 102.

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ECF No. 108.

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ECF No. 113.

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Page 3 of 4

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Hargrove is an “unsuitable” representative because she does not wish to pursue the claims in this

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case.15 Plaintiffs also make no attempt to demonstrate why Hargrove’s statement that she no longer

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wishes to pursue this case is not also binding on co-counsel The 702 Firm. Nor do plaintiffs provide

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any evidence to support their assertion that Hargrove’s parental rights have been terminated, thus

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depriving her of having the authority to make that decision.

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Plaintiffs’ counsel, perhaps recognizing these deficiencies, request additional time to respond

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to the show-cause order and for an order compelling production of family-court documents showing

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the status of Hargrove’s parental rights. But—despite my very specific instructions—plaintiffs have

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not even attempted to demonstrate to me that I have the authority to order the family court to produce

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these documents.

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In sum, plaintiffs have fallen well short of their obligations under my show-cause order and

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they have not given me any reason to believe that more time will change that. Because plaintiffs

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have failed to demonstrate why this case should not be dismissed based on Hargrove’s explicit

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instructions—which were given before the alleged termination of her parental rights—that she “will

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no longer be pursing with the civil lawsuit” and will no longer be needing counsel’s services, or

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shown that they are entitled to an extension to do so, I dismiss this case without prejudice.

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Conclusion

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Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that this case is
DISMISSED without prejudice.

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Dated this 5th day of October

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_________________________________
Jennifer A. Dorsey
United States District Judge

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Id. at 4–5.
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