Katz et al

Filing 82

ORDER denying as moot 77 Motion to Extend Time To Respond to Plaintiffs' First Amended Complaint Until September 19, 2011. The court will conduct an evidentiary hearing as outlined on August 22, 2011 at 2:00 p.m. Deadline for filing motions to dismiss or answers previously set by the court are stayed pending ruling on 67 motion to amend 1st amended complaint. So Ordered by Judge Joseph N. Laplante. (jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Elena Katz et al.
v.

Civil No. 10-cv-410-JL

Brian McVeigh et al.
PROCEDURAL ORDER
The plaintiffs, Elena Katz and Arnold Grodman, have filed a
motion to amend their complaint (document no. 67) to add claims
on behalf of their incapacitated adult daughter, Eleonora
Grodman.

The plaintiffs also ask to be appointed as Eleonora’s

“next friends” so they may assert those claims on her behalf.
See Fed. R. Civ. P. 17(c)(2).

Certain defendants filed an

objection to this relief, arguing, inter alia, that a series of
decisions by New Hampshire state courts rejecting the plaintiffs’
claims for guardianship over Eleonora in favor of the New
Hampshire Division of Children, Youth and Families had
established that the plaintiffs were not appropriate next friends
for Eleonora.
These defendants have since filed a “Notice of Partial
Withdrawal” of their objection insofar as it argues that the
plaintiffs lack guardianship over Elenora, because the Probate
Division of the New Hampshire Circuit Court recently appointed
Arnold Grodman as Eleonora’s guardian.

In re Grodman, No. 316-

2009-GI-1289 (N.H. Cir. Ct. Prob. Div. July 7, 2011).

But the

defendants also stated that “for the other and additional reasons
stated in the objection the amendment and request to be appointed
as next friend are still improper and should be denied.”
The Probate Division’s order appointed Arnold Grodman as
only “guardian of the person” of Elenora.

See id.

Under New

Hampshire law, a “guardian of the person” has limited rights and
duties, which do not include bringing suits on the ward’s behalf,
see N.H. Rev. Stat. Ann. § 464-A:25, I(a)-(h).

The right and

duty “to prosecute or defend actions, claims or proceedings”
belongs to a “guardian of the estate,” id. § 464-A:26, I, but
Arnold Grodman has not been appointed to that role.

So the only

way Arnold Grodman (or Elena Katz) can maintain claims in this
action on Eleonora’s behalf is for this court to appoint one or
both of them next friends under Rule 17(c).

See Sam M. ex rel.

Elliot v. Carcieri, 608 F.3d 77, 87-89 (1st Cir. 2010).
“Next Friend capacity is not lightly granted to any
individual who petitions a federal court to pursue an action on
behalf of another.”

Id. at 90.

To the contrary, “a Next Friend

should comply with ‘two firm prerequisites’:

(1) an adequate

explanation . . . why the real party in interest cannot appear on
his own behalf to prosecute the action, and (2) a showing that
the Next Friend is ‘truly dedicated to the best interests of the
person the Next Friend seeks to represent.’”

Id. (quoting

Whitmore v. Arkansas, 495 U.S. 149, 163 (1990)).

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There is no

doubt as to the existence of the first element--Eleonora has been
deemed incapacitated by the Probate Division--but the plaintiffs’
motion and supporting memorandum do not address the second
element.

While the defendants pointed out this shortcoming in

their objection, their “Notice of Withdrawal” is unclear as to
whether they believe it has been overcome by the intervening
Probate Division order.

In this court’s view, at least, that

order does not speak to Arnold Grodman’s suitability for next
friend status in this case, which depends on, among other things,
his “familiarity with the litigation, the reasons that move [him]
to pursue the litigation, and [his] ability to pursue the case on
[Eleonora’s] behalf.”

Id. at 92.

Accordingly, this court will conduct an evidentiary hearing
on the plaintiffs’ motion for appointment as Eleonora’s next
friends at which these and other factors bearing on whether they
are “truly dedicated to [her] best interests” will be considered.
Grodman and Katz shall appear at the hearing with counsel of
record.

Any defendant who opposes the plaintiffs’ appointment as

Eleonora’s next friends shall also appear at the hearing through
counsel.

Any defendant who does not oppose that relief, however,

need not appear at the hearing, through counsel or otherwise, but
shall so advise the court by telephone call to the Deputy Clerk
within ten days of the date of this order.
commence at 2:00 p.m. on August 22, 2011.

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The hearing shall

Following the hearing, the court will rule on the
plaintiffs’ request for appointment as Eleonora’s next friends,
and will proceed to rule on their motion to amend their complaint
to add claims on her behalf, taking the remaining arguments in
the defendants’ objection into account.

Accordingly, the

deadline for filing motions to dismiss or answers established by
this court’s prior order are stayed; a new deadline will be
established following the ruling on the motion to amend.

The

motion by certain defendants to extend that deadline (document
no. 77) is therefore DENIED as moot.

SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

August 2, 2011

Francis J. McDonough, Jr., Esq.
Louis A. Piccone, Esq.
Rebecca L. Woodard, Esq.
Nancy J. Smith, Esq.
Brian J.S. Cullen, Esq.
Donald L. Smith, Esq.
Paul B. Kleinman, Esq.
Charles P. Bauer, Esq.
Corey M. Belobrow, Esq.
W. Daniel Dean, Esq.
Evan C. Ouellette, Esq.
Raquel J. Webster, Esq.
Lisa M. Lee, Esq.
Michael A. Pignatelli, Esq.

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