H. et al v. Clark County et al

Filing 83

ORDER that Plaintiffs' Amended Petition for Minor's Compromise (ECF No. 79 ) is GRANTED; Plaintiffs' counsel shall have until February 1, 2019 to file proof that a blocked account has been set up and settlement proceeds authorized by this order have been deposited; No distributions may be made from the blocked account set up for the minor childwithout the courts approval. Signed by Magistrate Judge Peggy A. Leen on 1/18/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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S.H. JOHN DOE, a minor child, by and
through his Natural Parent and Legal
Guardian, A.O. JANE DOE, et al.,

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Plaintiffs,

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Case No. 2:17-cv-02380-MMD-PAL

ORDER

v.
(Am. Pet. Minor Compromise – ECF No. 79)
CLARK COUNTY, et al.,
Defendants.

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This matter is before the court on Plaintiffs’ Amended Petition for Minor’s Compromise,

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Payment of Attorney Fees and Costs, and Creation of Blocked Trust Account (ECF No. 79). This

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Petition is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the

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Local Rules of Practice. The court set the matter for hearing on January 17, 2018. Andrea

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Lagomarsino appeared on behalf of the plaintiffs, Thomas Dillard appeared on behalf of the Clark

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County defendants, and /// appeared on behalf of the Eagle Quest defendants.

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BACKGROUND

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The plaintiff is the mother of a minor child, S.H. John Doe who brought this action on

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behalf of herself and as the natural parent and legal guardian of her son. The minor child was 10

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years old at the time of the underlying conduct which resulted this lawsuit being filed.

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The complaint alleges that in August of 2016, the Las Vegas Metropolitan Police

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Department (“LVMPD”) investigated an incident involving John Doe and his younger sister.

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Complaint (ECF No. 1) ¶ 29. As a result of the investigation, a case was opened with the Clark

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County District Attorney’s Office Juvenile Division and John Doe was released to Clark County

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Juvenile Probation Officer Kevin Brown for transportation and placement in a group home

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operated by Eagle Quest. Id. ¶¶ 30-32. On September 30, 2016, a state judge in the Family1

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Juvenile Division of the Eighth Judicial District Court ordered John Doe to reside at an Eagle

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Quest group home, or an alternative replacement during a period of monitoring John Doe until

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completion of a non-offending parenting course by plaintiff Jane Doe and any other adult living in

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her home at which time John Doe would be eligible to return to his residence. Id. ¶¶ 50-52.

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The Clark County Department of Juvenile Justice Services (“CCDJJS”) provides services

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for intervention, guidance, detainment, treatment, counsel, and accountability in juvenile court

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functions including probation and detention. Id. ¶ 19. CCDJJS requested a juvenile psychological

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evaluation for John Doe to be performed by the Family and Child Treatment of Southern Nevada

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(“FACT”) to determine appropriate treatment needs, critical risk factors, and any community

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safety issues.

Id. ¶ 33.

CCDJJS provided documents for FACT’s review, including all

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documentation related to the incident involving John Doe and his younger sister. Id. ¶ 34. On

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September 1, 2006, the juvenile psychological evaluation was completed which made findings and

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recommendations. Id. ¶ 35. The report opined that because John Doe had such a strong familial

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support system and was amenable to treatment participation, his prognosis for a favorable outcome

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was good. Id. ¶ 40.

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The report was provided to family court by Juvenile Probation Officer Brown on

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September 19, 2016. Id. ¶ 44. On September 27, 2016, Juvenile Probation Officer Brown told

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plaintiff Jane Doe that Juvenile Probation Officer Juliane Hughes was now assigned to John Doe.

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Id. ¶ 47. Brown failed to recommend the supervision and treatment indicated by the report and

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instead sought alternative placement in a group home setting. Id. ¶ 49. On September 30, 2016,

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a family division juvenile court judge ordered John Doe to reside at an Eagle Quest group home

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or at an alternative placement as deemed necessary during his period of monitoring. Id. ¶ 51. On

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November 30, 2016, John Doe was released to Jane Doe’s care on the condition that he was not at

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the same address as his younger sister while Jane Doe was staying at a Siegel Suites. Id. ¶ 90.

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Jane Doe’s financial resources were exhausted, and she was unable to maintain this residence

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option and John Doe was forced back into Eagle Quest. Id. ¶ 91. John Doe was placed in

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defendants’ Smoke Ranch group home on December 9, 2016. Id. ¶ 92. John Doe was 10 years

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old at the time, small for his age, and defendants Williams and Horn expressed concerns that he
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was smaller than the other residents. Id. ¶¶ 93-96. John Doe reported to his probation officer that

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people were picking on him and was told not to take it personally. Id. ¶ 102. On February 14,

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2017, at 1:27 a.m., John Doe was in his bedroom asleep and approached by another foster child,

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forced into the closet of their shared bedroom, and forcibly sodomized. Id. ¶ 109. Video

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surveillance in the bedroom depicted these events. Id. ¶ 111.

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Based on these facts, plaintiffs sued the Clark County defendants and Eagle Quest

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defendants asserting claims for Fourteenth Amendment violations under Title 42 U.S.C. § 1983

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for violation of the duty to protect and state created danger, violation of the Federal Adoption

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Assistance Act and Child Welfare Act, substantive due process under the Nevada Constitution,

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and multiple state negligence claims against both defendants.

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On September 25, 2018, plaintiffs reached a settlement with Clark County, and individual

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defendants Kevin Brown and Juliane Hughes in the amount of $75,000, $65,000 of which was

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allocated to the minor child, and $10,000 allocated to his mother and guardian ad litem. The

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settlement was approved by the Clark County Board of Commissioners on November 6, 2018.

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A written settlement agreement was executed and is attached to plaintiff’s verified petition

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as Exhibit 3. During the hearing, counsel advised that plaintiffs had reached a settlement with

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Eagle Quest of Nevada, Eagle Quest, Ivan Ray Tippetts and Leslie Tippets subject to the court’s

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approval of a minor’s compromise petition that would soon be filed.

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At a prior hearing the court denied plaintiffs’ initial Motion for Minor’s Compromise (ECF

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No 74) without prejudice directing plaintiffs’ counsel to file a verified petition providing the court

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with additional information in compliance with Nevada and Ninth Circuit law governing approval

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of a minor’s compromise claim. This verified petition was filed as directed. Plaintiffs seek

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authorization to distribute settlement proceeds as follows:

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1. $26,000 in attorneys’ fees for the $65,000 recovery on behalf of the minor child,

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based on a written 40% contingency fee agreement attached as Exhibit 4 to the

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petition;

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2. Deduction of costs incurred in prosecuting plaintiffs’ claims against the Clark

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County defendants. (Total costs of $54,700.67 hae been incurred of which
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$12,298.17 is allocated to prosecution of the case against the Clark County

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Defendants and $42,402.50 is allocated to prosecution of the case against the

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Eagle Quest defendants);
3. The balance of $28,341.18 is to be deposited into a blocked trust account for

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the minor child, S.H.

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The Board of County Commissioner’s approved the settlement at a regularly scheduled

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meeting after review of the proposed settlement by the Civil Division of the Clark County District

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Attorney’s Office and the Clark County Liability Pool. No opposition to the petition has been

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filed and counsel for Clark County has requested the court approve the minor’s compromise.
DISCUSSION

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Under Nevada law, a parent or guardian must seek the court’s approval to compromise a

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disputed claim held by a minor by filing a verified petition in writing. NRS 41.200. No settlement

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is effective until it is approved by the court. NRS 41.200(1) (“If an unemancipated minor has a

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disputed claim . . ., either parent . . . has the right to compromise the claim. Such a compromise is

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not effective until it is approved by the district court . . . upon a verified petition in writing,

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regularly filed with the court.”); Haley v. Eighth Jud. Dist. Ct., 128 Nev. 171, 176, 273 P.3d 855,

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859 (2012) (compromise of a minor’s claim “is not effective until approved by the district court

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upon a verified petition in writing.”).
Rule 17(c) of the Federal Rules of Civil Procedure1 specifically addresses actions on behalf

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of a minor or incompetent person, and it provides:

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(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.

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All references to a “Rule” or the “Rules” in this Order refer to the Federal Rules of Civil Procedure.

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In the context of proposed settlements, the Ninth Circuit has recognized that district courts

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have a special duty under Rule 17(c) “to safeguard the interests of litigants who are minors.”

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Robidoux v. Rosengren, 638 F.3d 1177, 1181–82 (9th Cir. 2011). This “special duty” requires the

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court “to ‘conduct its own inquiry to determine whether the settlement serves the best interests of

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the minor’.” Robidoux, 638 F.3d at 1181 (quoting Dacaney v. Mendoza, 573 F.2d 1075, 1080 (9th

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Cir. 1978)). The court must independently investigate and evaluate any compromise or settlement

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of a minor’s claim to assure itself that the minor’s interests are protected, even if the settlement

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has been recommended and/or negotiated by the minor’s parent or guardian ad litem. Id. Federal

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courts in the Ninth Circuit typically apply state law and local rules governing the award of

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attorney’s fees. Id. In Robidoux, however, the Ninth Circuit found that this approach “places

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undue emphasis on the amount of attorney’s fees provided for in a settlement, instead of focusing

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on the net recovery of the minor plaintiffs under the proposed agreement.” Id. There, the Ninth

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Circuit held the “district court’s special duty to protect minor plaintiffs requires only that the

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district court consider whether the net recovery” to the minor is fair and reasonable, without regard

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to the amount plaintiffs agreed to pay plaintiffs’ counsel. Id. at 1182. The Ninth Circuit concluded

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that if the net recovery to the minor plaintiff under the proposed settlement was fair and reasonable,

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“the district court should approve the settlement as presented, regardless of the amount the parties

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agreed to designate for adult co-plaintiffs and attorney’s fees.” Id.

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In Haley v. Eighth Judicial District Court, 128 Nev. 171, 177, 273 P.3 855, 859 (2012), the

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Nevada Supreme Court noted that Nevada Rule of Civil Procedure 17(c) is nearly identical to its

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federal counterpart, which the Ninth Circuit had interpreted as charging the court with a “‘special

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duty … to safeguard the interests of litigants who are minors’.” Id. at 177, 273 P.3d at 859 (quoting

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Robidoux, 638 F.3d at 1181–82). Citing Ninth Circuit and other federal circuit case law, the

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Nevada Supreme Court concluded that “NRS 41.200 allows the district court to assess the

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reasonableness of the petition to approve the compromise of a minor’s claim and to ensure the

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approval of the proposed compromise is in the minor’s best interest.” Id. at 177, 273 P.3d at 860.

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“This review necessarily entails the authority to review each portion of the proposed compromise

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for reasonableness and to adjust the terms of the settlement accordingly, including the fees and

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costs to be taken from the minor’s recovery.” Id.

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During the hearing, counsel for plaintiffs advised that court that a settlement has now been

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reached with the Eagle Quest defendants subject to the court’s approval of the minor’s compromise

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which will soon be filed. Counsel for plaintiffs regard the Eagle Quest defendants as more culpable

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and with more liability exposure than the Clark County defendants. Additionally, counsel for

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plaintiffs indicated that counsel for Clark County had defended the case well.

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acknowledged the difficulty in proving a § 1983 claim for deliberate indifference against the Clark

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County defendants. The plaintiff mother was deposed in this case and testified that she did not

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believe that Clark County had done anything wrong. The sexual assault on the minor child

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occurred while he was at an Eagle Quest group home pursuant to an order of a state family-juvenile

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court judge. The tort claims against Clark County defendants are subject to a $100,000 statutory

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cap on damages and the parties negotiated in good faith to settle the claims against the Clark

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County defendants for 75% of the $100,000 cap.

Plaintiffs

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Having thoroughly reviewed and considered the petition, amended petition, supporting

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exhibits, declaration of counsel, and arguments presented at both hearings, the court finds that the

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settlement reached with the Clark County defendants is fair and reasonable and in the best interests

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of the minor child. Of the total $75,000 settlement, $65,000 or 86.67% is allocated to settle the

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claims of the minor child with $10,000 or 13.33% allocated on behalf of the mother, natural parent,

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and legal guardian. Of the total costs of $12,298.17 allocated to prosecuting the case against the

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Clark County defendants. The costs are allocated using the same ratio is applied to allocate

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settlement proceeds between mother and child. That is, 86.67% or $10,658.82 is allocated to costs

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associated with prosecuting the action on behalf of the minor child with $1,639.35 or 13.33%

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allocated to costs to prosecute the action on behalf of the plaintiff mother. After the cost for

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deduction of attorneys’ fees of $26,000, $28,341.18 will be deposited into a locked account for the

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minor child.

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A substantial, although confidential settlement has now been reached between the plaintiffs

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and the Eagle Quest defendants subject to the court’s approval which will result in additional
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recoveries for both plaintiffs. The settlement agreement contains standard terms and conditions in

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cases of this nature.

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Accordingly,

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IT IS ORDERED:

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1. Plaintiffs’ Amended Petition for Minor’s Compromise (ECF No. 79) is GRANTED.

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2. Plaintiffs counsel shall have until February 1, 2019 to file proof that a blocked account

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has been set up and settlement proceeds authorized by this order have been deposited.

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3. No distributions may be made from the blocked account set up for the minor child

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without the court’s approval.

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Dated this 18th day of January 2019.

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____________________________________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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