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)

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
[e-mail]
[e-mail]
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. [phone] ♦ Fax [phone]

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. [phone] ♦ Fax [phone]

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. [phone] ♦ Fax [phone]

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