Francisque v. Finkle, Jr., Inc. et al

Filing 19

MEMORANDUM & ORDER granting 17 Motion to Appoint Guardian ad Litem. Plaintiff Jean Francisque moves for the appointment of his wife, Carmelle Gladys Francisque, as his guardian ad litem in this case. Defendants do not oppose. For the reasons st ated in the attached Memorandum & Order, the court appoints Carmelle Gladys Francisque to serve as plaintiff's guardian ad litem. The court additionally orders plaintiff's counsel to notify plaintiff of this ruling and advise the court of any questions or concerns plaintiff may have. Ordered by Magistrate Judge Robert M. Levy on 5/8/2019. See attached Memorandum & Order for details. (Marino, Janine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JEAN FRANCISQUE,
Plaintiff,

MEMORANDUM
AND ORDER
16 CV 3637 (RML)

-againstCLIFFORD B. FINKLE, JR., INC. and VALMORE
E. STRACHAN,
Defendants.
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LEVY, United States Magistrate Judge:

Plaintiff Jean Francisque (“plaintiff”) moves for the appointment of his wife,
Carmelle Gladys Francisque (“Ms. Francisque”), as his guardian ad litem in this case.
Defendants do not oppose. For the reasons explained below, plaintiff’s motion is granted.
BACKGROUND AND FACTS
This personal injury action was scheduled to begin trial before this court on May
13, 2019. On May 1, 2019, plaintiff’s counsel informed the court that plaintiff had suffered a
debilitating stroke and moved for the appointment of Ms. Francisque as guardian ad litem.
(Motion to Appoint Guardian Ad Litem, dated May 1, 2019 (“Mot.”), Dkt. No. 17.) Plaintiff
submitted a physician’s letter and medical records to support his request. (See Physician’s Letter
and Medical Records, Ex. A to Mot., Dkt. No. 17-1.) Ms. Francisque appeared at a conference
on May 2, 2019, where she testified under oath that plaintiff suffered brain damage as a result of
a stroke and has difficulty understanding and communicating. She confirmed that she would be
willing to serve as ad litem if appointed.

DISCUSSION
Federal Rule of Civil Procedure 17(c) provides that:
[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.
FED. R. CIV. P. 17(c)(2). State law controls the determination of whether an individual has the
capacity to sue on his or her own behalf. FED. R. CIV. P. 17(b); Bowen v. Rubin, 213 F. Supp. 2d
220, 223 (E.D.N.Y. 2001) (applying New York law to determine capacity to sue). New York
law requires that “an adult incapable of adequately prosecuting or defending his rights” have a
guardian ad litem appointed on his behalf. N.Y. C.P.L.R. § 1201. The party seeking
appointment of a guardian ad litem must show by a preponderance of the evidence that the
individual’s “condition impedes [his or] her ability to protect [his or] her rights.” N.Y. Life Ins.
Co. v. V.K., 711 N.Y.S.2d 90, 96 (New York Civ. Ct. 1999). “[I]t is well settled that, under New
York law, a guardian ad litem may be appointed by a court at any stage of an action in which an
adult is incapable of adequately prosecuting or defending his rights, even where no formal
adjudication of incompetence has been made.” Bowen, 213 F. Supp. 2d at 223.
However, “[b]ecause a litigant possesses liberty interests in avoiding the stigma of
being found incompetent, and in retaining personal control over the litigation, the Due Process
Clause of the Fifth Amendment limits the district court’s discretion with respect to the
procedures used before appointing a guardian ad litem.” Neilson v. Colgate-Palmolive Co., 199
F.3d 642, 651 (2d Cir. 1999) (citing Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). In
order to determine the amount of process due, the court must weigh “(1) the private interest
affected by the official action; (2) the risk of an erroneous deprivation of that interest through the

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procedures used, and the probable value of additional or different procedural safeguards; and (3)
the government’s interest.” Id. (citing Abdullah v. I.N.S., 184 F.3d 158, 164 (2d Cir. 1999)); see
also Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).
In weighing these factors, as well as the evidence before the court as to plaintiff’s
condition, the court finds that a guardian ad litem should be appointed and that the only
additional process due is notice to plaintiff. 1 While courts in this circuit have held that an
evidentiary hearing is not always necessary in order to appoint a guardian ad litem (see Bowen,
214 F. Supp. 2d at 225), the court has already held one in this case. Ms. Francisque’s testimony
under oath as to her husband’s condition, in conjunction with the medical records plaintiff’s
counsel has provided, are more than sufficient to determine by a preponderance of the evidence
that plaintiff does not have the capacity to adequately prosecute his own rights. The court
moreover finds that Ms. Francisque would make a suitable guardian ad litem.
CONCLUSION
For the reasons stated above, the court appoints Carmelle Gladys Francisque to
serve as plaintiff’s guardian ad litem. The court additionally orders plaintiff’s counsel to notify
plaintiff of this ruling and advise the court of any questions or concerns plaintiff may have.
SO ORDERED.
/s/
ROBERT M. LEVY
United States Magistrate Judge
Dated: Brooklyn, New York
May 8, 2019
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The fact that this is plaintiff’s motion indicates that he is already on notice that a guardian ad
litem may be appointed, and is “willing to constrain [his] control over this litigation and face the
possible resulting stigma associated with guardianship.” Bowen, 213 F. Supp. 2d at 224.
However, the court additionally requires that his counsel notify him of this ruling.
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