Cruz v. Lee et al

Filing 62

ORDER & OPINION re: 57 FIRST MOTION to Appoint Guardian ad litem ad Litem . filed by Herman Cruz. For the reasons detailed above, it is hereby ORDERED, that Robert M. Isackson, as suggested by Plaintiff's counsel, (see Decl. at 15), be appointed to serve as a guardian ad litem for the limited purpose of litigating or settling this matter. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 57. SO ORDERED (Signed by Judge Nelson Stephen Roman on 11/8/2023) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
11/08/2023

HERMAN CRUZ,
Plaintiff,

14-cv-4870 (NSR)

-against-

ORDER & OPINION

W. LEE, et al.,
Defendants.
NELSON S. ROMÁN, United States District Judge:
The Court is in receipt of plaintiff Herman Cruz’s (“Plaintiff”) First Motion to Appoint
Guardian ad litem, dated August 10, 2023 (the “Motion”). (ECF No. 57). The Court also notes
the Defendants’ Response, dated August 21, 2023, taking no position on the Motion. (ECF No.
60). The Motion seeks to have Mr. Robert M. Isackson, Esq. appointed to serve as guardian ad
litem for Plaintiff on a pro bono basis. (Decl. of Amy Jane Agnew, Esq. (the “Decl.”) at ¶ 15,
ECF No. 58).
BACKGROUND
Plaintiff has suffered a stroke and a possibly unrelated severe traumatic head injury,
which, in either case, impedes his ability to communicate with his counsel. (Decl. at ¶¶ 5-6, 13).
Plaintiff has also experienced memory loss, including memory of filing the lawsuit captioned
above. (Id. at ¶¶ 6, 9). Plaintiff’s counsel is unable to represent plaintiff without a guardian ad
litem and has requested a Federal Rule of Civil Procedure (the “Rule”) 17 hearing to determine
Plaintiff’s competency. (Id. at ¶¶ 16-17).
LEGAL STANDARD
Rule 17(c) governs the appointment of guardians ad litem and provides that whenever
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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[n ]
incompetent person who is unrepresented in an action. Fed. R. Civ. Proc. 17(c)(2).
According to Rule 17(b), “[the c]apacity of an individual to sue or be sued is
determined[,] for an individual who is not acting in a representative capacity, by the law of the
individual’s domicile . . . .” Fed. R. Civ. Proc. 17(b). New York law requires the appointment of
a guardian ad litem when “an adult [is] incapable of adequately prosecuting or defending his
rights.” N.Y. Civ. Practice L. & R. § 1201. “The party seeking appointment of a guardian must
show by a preponderance of the evidence that the individual’s condition impedes her ability to
protect her rights.” Bowen v. Rubin, 213 F. Supp.2d 220, 223 (E.D.N.Y. 2001) (internal
quotations and citations omitted).
When presented with a sufficiently robust record, a court may appoint a guardian ad litem
without holding a Rule 17(c) hearing. See, e.g., Id. at 224-25 (citing Neilson, 199 F.3d at 651-52;
von Bulow by Auersperg v. von Bulow, 634 F. Supp. 1284, 1296 (S.D.N.Y. 1986)). Even so, due
process constrains courts’ power to appoint a guardian ad litem because “plaintiffs possess
liberty interests in avoiding the stigma of being found incompetent . . . and in retaining personal
control over the litigation . . . .” Id. at 213 F. Supp.2d at 224 (citing Neilson v. Colgate-Palmolive
Co., 199 F.3d 642, 651 (2d Cir. 1999) (cleaned up). Consequently, a court must weigh (1) the
private interest affected by the official action; (2) the risk of an erroneous deprivation of that
interest through the procedures used, and the probable value of additional or different procedural
safeguards; and (3) the government’s interest. Id. (citing Mathews v. Eldridge, 424 U.S. 319,
334-35 (1976).

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In Bowen, the Eastern District was moved to appoint guardians ad litem without holding
a hearing. Id. at 224. As to the plaintiffs’ due process interests, the court approvingly noted that it
was plaintiffs, through counsel, who were requesting the appointment, thus indicating their
willingness to cede control over the litigation and “face the possible stigma associated with
guardianship.” Id. The court was also presented with declarations from the plaintiffs’ treating
psychiatrists, which concluded that the plaintiffs were unable to vindicate their interests. Id.
Moreover, the pleadings and exhibits submitted over the course of the litigation indicated that the
plaintiffs’ interests would be advanced by the appointment of guardians given the “individuals
require[ed] guidance and supervision in making difficult choices, such as those arising in the
course of a lawsuit.” Id.
Regarding the procedural prong of the Eldridge analysis, the Bowen court found that an
additional evidentiary hearing would be redundant, focusing again on the declarations submitted
by plaintiffs’ doctors as the court was skeptical “what further evidence defendants require or
would seek to present . . .” as those declarations were unrebutted and already before the court. Id.
at 225.
Bowen is silent on the last Eldridge prong, the government’s interest. One presumes this
is likely because the request for appointment came from the plaintiffs themselves. The Bowen
court did note, though, its ongoing obligation to “monitor and assess” the work of the proposed
guardians ad litem. Id. The Court also noted a number of means by which the plaintiffs and the
court itself may insulate the plaintiffs from any deleterious actions by the guardians. Id. at 22526.

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DISCUSSION
The instant facts compare favorably to those in Bowen. Plaintiff’s counsel has submitted
a declaration wherein she avers Plaintiff suffered a severe and traumatic brain injury that has
negatively affected his cognitive skills and functioning, struggles to communicate with counsel,
has difficulty remembering or understanding his surroundings and events, and does not recall the
filing of this lawsuit. (Decl. at ¶¶ 5-6, 9). Moreover, the parties have provided the court with over
9000 pages of Plaintiff’s certified medical records. Those records also indicate that the Plaintiff
has experienced a traumatic brain injury and permanent impairment with at least mild cognitive
decline. The records also include a declaration from the Plaintiff’s physician much to that same
effect. That same physician has subsequently provided a declaration, dated October 14, 2023,
speaking to the Plaintiff’s condition (the “Physician’s Decl.”). The Physician’s Decl. restates the
Plaintiff’s ailments, most notably his “mild to moderate recent and remote memory reduction,
reduced capacity of logical judgment, [and that] he presents as a poor historian and sometimes
suffers from confusion of time and place.” (Physician’s Decl. at ¶ 11). Moreover, and similar to
Bowen, the Plaintiff’s physician states his opinion that Plaintiff “would benefit from the
assistance of a guardian ad litem who will participate in decision-making on [Plaintiff’s] behalf
as [it] relates to his civil litigation.” (Id. at ¶ 13).
Unlike Bowen, where the appointment of a guardian faced opposition, here, the
Defendants have not taken a position regarding a potential appointment. See Bowen, 213 F.
Supp.2d at 222; (see also, ECF No. 60). Further, the due process prong results in a similar
outcome to Bowen, where the additional procedural elements that a hearing would represent
would have little effect on the outcome. See Bowen, 213 F. Supp.2d at 225. For one, given that
Defendants have not taken a position regarding appointment, it is unlikely they would present

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any evidence to challenge that already provided by Plaintiff—they have not given any indication
to date that is their intent. Further, “[f]ormal hearings or submissions by doctors in addition to
those made by a party’s treating physician would appear to be absolute requisites only where
opposing counsel or the court seek to appoint a guardian or where there is a death of evidence
regarding the commentary of the part to proceed without representations.” Id. (collecting cases).
Here, the Court has been presented with the Physician’s Decl., neither Defendants nor the Court
are seeking to appoint the guardian, and the Court has been provided with voluminous medical
records and sworn declarations speaking to Plaintiff’s cognitive ability.
The Court therefore finds that, by a preponderance of the evidence, Plaintiff’s injuries
and current cognitive state render him “incapable of adequately prosecuting or defending his
rights.” N.Y. Civ. Practice L. & R. § 1201. Accordingly, the Court holds that a Rule 17 hearing
is unnecessary. Even so, the Court emphasizes its “continuing obligation to monitor and assess
the proposed guardian[]” and that the Court “bears ultimate responsibility for determinations
made on behalf of a party represented by a guardian ad litem.” Bowen, 213 F. Supp.2d at 225. As
such, the Court will assiduously monitor the guardian’s actions to ensure that Plaintiff’s best
interests are served by this appointment.
CONCLUSION
For the reasons detailed above, it is hereby ORDERED, that Robert M. Isackson, as
suggested by Plaintiff’s counsel, (see Decl. at ¶ 15), be appointed to serve as a guardian ad litem
for the limited purpose of litigating or settling this matter. The Clerk of Court is respectfully
directed to terminate the motion at ECF No. 57.
Dated: November 8, 2023
White Plains, NY

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