PARK v. UNITED STATES OF AMERICA

Filing 23

OPINION. Signed by Judge William J. Martini on 5/28/19. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HAE Y. PARK,
Docket No.: 1 7-cv- 13139

Plaintiff
V.

OPINION
UNITED STATES,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiff Hae Y. Park (“Plaintiff’) brings this negligence action for injuries she suffered
after allegedly being struck by a United States Postal Service (“USPS”) vehicle. The matter
comes before the Court on Plaintiff’s motion to appoint a guardian ad litem (“GAL”). ECF
No. 18. For the reasons set forth below, the motion is technically DENIED. However, the Court
will APPOINT an investigatory GAL and HOLD A HEARING before impowering the GAL
to make decisions on Plaintiffs behalf.
I.

BACKGROUND

Plaintiff alleges that on December 10, 2015, a USPS truck struck the car Plaintiff was
driving in Leonia, New Jersey. See Cornpl., ECF No. 1. Due to the USPS driver’s negligence,
she allegedly suffered severe injuries. Id. Plaintiff filed suit against the United States, seeking
damages for her injuries. Id.
Now before the Court is Plaintiffs motion to appoint her husband, Mr. Chul Son, as her
GAL. Mot., ECF No. 18. The United States “takes no position on Plaintiffs motion” but
reserves the right to refute allegations that Defendant caused Plaintiffs diminished capacity and
seek discovery regarding Plaintiffs condition.” Def. Ltr. (May 6, 2019), ECF No. 19.
II.

DISCUSSION

Under FRCP 17(c), “an incompetent person who does not have a duly appointed
representative may sue by a next friend or by a [GAL]. The court must appoint a [GAL]
to
protect a minor or incompetent person who is unrepresented in an action.” FRCP 7(c)(2). To
determine whether an individual is competent, courts look to “the law of the individual’s
domicile.” FRCP l7(b)(l).
..

.

Plaintiff is a New Jersey domicile. Compl. ¶ 1. Under New Jersey law, the standard
applicable to determine competence depends on the context of the inquiry. See N.J.R. 4:26-2.
Here, Plaintiff moved for a GAL. When the request is made by motion, “the court ina,v appoint
a [GAL] for a minor or alleged mentally incapacitated person i/no petition has been filed and
either default has been entered by the clerk or, in a summary action brought pursuant to R. 4:67
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or in a probate action, 10 days have elapsed after service of the order.” N.J.R. 4:26-2(b)(3)
(emphasis added). Neither of those conditions are satisfied here, and thus appointment pursuant
to Plaintiffs motion would be inappropriate at this time.
However, “[t]he court may appoint a [GAL] for a minor or alleged mentally incapacitated
person on its own motion.” N.J.R. 4:26-2(b)(4). “[I]n the absence of a contravening standard in
Rule 4:26-2(b), the trial court may appoint a GAL for an allegedly mentally incapable adult for
‘good cause.” SeeS.T. v. l5l5BroadSt., LLC, 190 A.3d 1073, 1083 (N.J. App. Div. 2018).’
If there is good cause to believe that the person lacks sufficient mental capacity to
make the decision(s) needed to conduct the litigation, the court may appoint a GAL
to serve as an independent investigator, fact finder, and evaluator to report back to
the trial court whether the person has sufficient mental capacity. No higher
standard should be imposed because such an investigation aids the court in
determining if its intervention is needed to protect the rights of the alleged mentally
incapacitated person, but does not itself deprive the person of the right of selfdetermination.
By contrast, a trial court’s ruling whether to empower the GAL to make the
decision(s) needed in the litigation for an allegedly mentally incapacitated person
must be governed by a higher standard because the ruling deprives the person of
the right of self-determination.
Accordingly, the court must determine that the
person is mentally incapable of making the decision(s) needed in the litigation
before the court can entrust the GAL to make the decision(s). To ensure that the
person’s right of self-determination is not improperly overridden, the court must
make that ruling by clear and convincing evidence.
.

.

.

Id. at 1083-84 (citations omitted). Therefore, on the Court’s own motion, it will detennine
whether good cause exists to appoint Mr. Son as an investigatory GAL. If good cause exists, the
Court will require Mr. Son to appear for a hearing to determine which decisions he will be
empowered to make for Plaintiff.
The Court has ample evidence to find good cause. For example, Dr. Charlene Bang, a
licensed psychologist that examined Plaintiff, declared under penalty of perjury that Plaintiff has
“significant impairment in executive function.” Bang Decl. ¶ 9, ECF No. 18-5. “Executive
function represents a person’s ability to plan, organize, initiate and make responsible decisions.
It is an essential criterion pertaining to a person’s ability to manage affairs of any significant
complexity, such as court proceedings.” Id. n. 1. Therefore, good cause exists to appoint a GAL
“to serve as an independent investigator, fact finder, and evaluator to report back to the trial court
whether the person has sufficient mental capacity.” See S. T, 190 A.3d at 1083.
While good cause exists to appoint Mr. Son as Plaintiffs investigatory GAL, the Court
is uncomfortable depriving Plaintiff of her “right of self-determination” exclusively based on
The Court does not consider the “appointment pursuant to a motion” standard “contravening,” as the
motion standard uses permissive language (i.e., “may”), and does not appear to limit the appointment of
a GAL by other means.
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written submissions. See id. at 1084 (requiring clear and convincing evidence of incapacity
before giving GAL decision-making authority). Therefore, the Court will hold a hearing to
determine what decision-making authority Mr. Son should be afforded.
III.

CONCLUSION

For the reasons set forth above, Plaintiffs motion, ECF No. 1$, is technically DENIED.
On the Court’s motion, it will APPOINT Mr. Chul Son as Plaintiffs investigatory guardian ad
litem and HOLD A HEARING to determine—by clear and convincing evidence—what
decisions Mr. Son should be empowered to make on Plaintiffs behalf. An appropriate order
follows.

Date: May 28, 2019

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