Dunphy v. Alaska Airlines, Inc.

Filing 54

ORDER Granting 47 Motion to Appoint Guardian ad Litem filed by Theresa Dunphy. Signed by Magistrate Judge George Foley, Jr on 6/21/17. (Copies have been distributed pursuant to the NEF - MR)

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1 2 3 4 5 6 7 JAMES P. KEMP, ESQ. Nevada Bar No.: 6375 VICTORIA L. NEAL, ESQ. Nevada Bar No.: 13382 KEMP & KEMP 7435 W. Azure Drive, Ste 110 Las Vegas, NV 89130 702-258-1183 ph./702-258-6983 fax jp@kemp-attorneys.com vneal@kemp-attorneys.com Attorneys for Plaintiff Theresa Dunphy 8 9 UNITED STATES DISTRICT COURT 10 11 THERESA DUNPHY ATTORNEYS AT LAW 7435 W. AZURE DR., SUITE 110 LAS VEGAS, NEVADA 89130 Tel. (702) 258-1183 ♦ Fax (702) 258-6983 KEMP & KEMP 12 13 vs. 14 ALASKA AIRLINES, INC., 15 16 DISTRICT OF NEVADA *** ) ) Case No.: 2:17-cv-0050-RFB-GWF ) Plaintiff, ) ) [PROPOSED] ORDER GRANTING ) MOTION TO APPOINT DENNIS ) ) SCHAEFFER GUARDIAN AD LITEM ) FOR PLAINTIFF THERESA DUNPHY Defendant. ) (ECF No. 47) ) 17 This matter came before the Court on Motion for Appointment of Dennis Schaeffer as 18 Guardian Ad Litem for Plaintiff submitted by Plaintiff’s Counsel. ECF No. 47. The Motion was 19 unopposed. 20 A hearing on the Motion was held before the Honorable Magistrate Judge Foley on June 21 22 19, 2017. Appearing for Plaintiff was Counsel of Record, Victoria L. Neal, Esq., and appearing 23 for Defendant was Counsel of Record, Jibraun Riaz, Esq. Mr. Dennis Schaeffer was also in 24 attendance. 25 26 27 Having considered the papers and pleadings, and good cause appearing, the court finds and concludes as follows: … 28 1 1 2 3 4 FINDINGS OF FACT 1. Anuranjan Bist, M.D., Plaintiff’s doctor since 2011, presented a declaration stating Plaintiff is currently incompetent. 2. Dennis Schaeffer, Plaintiff’s long-time friend and roommate, presented a declaration 5 6 based upon his personal knowledge and observations of Plaintiff’s struggles with mental illness, 7 that she currently is not mentally capable of understanding and participating in this civil action. 8 Mr. Schaeffer also presented a declaration stating he has been apprised of the duties of a 9 guardian ad litem and accepts the duties and responsibilities to work in the best interest of and on 10 11 behalf of Plaintiff. 3. Plaintiff’s Counsel of Record, James P. Kemp, presented a declaration that, based upon ATTORNEYS AT LAW 7435 W. AZURE DR., SUITE 110 LAS VEGAS, NEVADA 89130 Tel. (702) 258-1183 ♦ Fax (702) 258-6983 KEMP & KEMP 12 13 14 his observations of Plaintiff, he believes Plaintiff is not mentally or emotional well and is not in complete control of her faculties. 15 4. Plaintiff is currently not competent to handle her own affairs for the purposes of this civil 16 action based on sufficient and credible documentation from Plaintiff’s doctor, Plaintiff’s long- 17 time friend and roommate, and declaration from Plaintiff’s counsel. 18 19 CONCLUSIONS OF LAW 1. Federal Rule of Civil Procedure 17(c) provides, in relevant that a “district court ‘must 20 21 22 23 appoint a guardian ad litem — or issue another appropriate order — to protect a minor or incompetent person who is unrepresented in an action.’” Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011) (quoting FED. R. CIV. P. 17(c)). 24 2. The Ninth Circuit has found appointment of a guardian ad litem can be supported by a 25 sworn declaration of the plaintiff, the sworn declaration by another person explaining plaintiff is 26 mentally ill and does not understand the court’s orders, and/or a statement by plaintiff’s 27 physician. Allen v. Calderon, 408 F.3d 1150, 1151-52 (9th Cir. 2005); United States v. 30.64 28 2 1 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986) (finding that the district court abused its 2 discretion in failing to appoint a guardian ad litem to represent a plaintiff because “the court was 3 4 clearly on notice that [plaintiff] claimed to be incompetent and his claim was made credible by official documentation.”). 5 6 NOW THEREFORE, pursuant to FRCP Rule 17(c), with good cause appearing based 7 on sufficient and credible documentation, the Motion to Appoint Dennis Schaefer as Guardian 8 Ad Litem for Plaintiff Theresa Dunphy in this case only should be and hereby is GRANTED. 9 Dennis Schaefer is designated to make all decisions on behalf of Theresa Dunphy in this civil 10 11 action in her best interests. IT IS SO ORDERED: ATTORNEYS AT LAW 7435 W. AZURE DR., SUITE 110 LAS VEGAS, NEVADA 89130 Tel. (702) 258-1183 ♦ Fax (702) 258-6983 KEMP & KEMP 12 13 14 Dated: ___________________ 6/21/2017 ________________________________________ UNITED STATES MAGISTRATE JUDGE HONORABLE GEORGE FOLEY, JR. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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