Jones v. County of Westchester et al
OPINION & ORDER. Upon a de novo review upon due consideration, the Court adopts the conclusion of MJ McCarthy. Accordingly, the Court appoints Megahey to serve as D.J.'s next of friend. Plaintiff is directed to amend their pleadings in accordance with this Opinion and Order. The clerk of the court is directed to terminate the motion at ECF Docket No. 98. So Ordered. (Signed by Judge Nelson Stephen Roman on 4/27/17) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LATONIA JONES, individually and on behalf
of her minor child, DJ,
No. 14-cv-7635 (NSR)
OPINION & ORDER
COUNTY OF WESTCHESTER, ROSA HAZOURY,
ELKE KNUDSEN, and LISA COLIN, ESQ.,
NELSON S. ROMAN, United States District Judge
Plaintiff, Latonia Jones ("Jones"), individually and on behalf of her minor child D.J.,
asserts claims against the County of Westchester (the "County"); Rosa Hazoury and Elke Knudsen,
employees of Westchester County (together with the County, the "County Defendants"); and Lisa
Colin, Esq. ("Colin"), arising out of D.J.'s removal from the custody of her biological mother,
Before the Court are Defendants' objections to the Order issued by Honorable Magistrate
Judge Judith McCarthy ("MJ McCarthy"), (hereinafter referred to as a "Report and
Recommendation" or "R&R") substituting Jones with Patricia McDonnel-Megahey ("Megahey")
as the representative or next friend ofD.J. for the purpose oflitigating all claims asse1ted on behalf
of the minor. For the following reasons, upon conducting de nova review, 1 the Court adopts the
conclusions of the R&R in its entirety.
Given the undersigned is conducting a de novo review, the question of whether MJ McCarthy had jurisdiction to
address the issue of an appointment of a next friend, raised at an October 30, 2015 hearing before the Magistrate
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STANDARD OF REVIEW
A magistrate judge may “hear a pretrial matter [that is] dispositive of a claim or defense”
if so designated by a district court. Fed. R. Civ. P. 72(b)(1); accord 28 U.S.C. §636(b)(1). In such
a case, the magistrate judge “must enter a recommended disposition, including, if appropriate,
proposed findings of fact.” Fed. R. Civ. P. 72(b)(1); accord 28 U.S.C. §636(b)(1). Where a
magistrate judge issues an R&R,
[w]ithin fourteen days after being served with a copy, any party may serve and file
written objections to such proposed findings or recommendations as provided by
rules of court. A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.
28 U.S.C. §636(b); accord Fed. R. Civ. P. 72(b)(2), (3). However, a district court “may adopt
those portions of the Report to which no objections have been made and which are not facially
erroneous.” Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 170 (S.D.N.Y. 2003) (quoting
La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000)).
To the extent a particularized objection to an R&R is raised, those parts must be reviewed
de novo. 28 U.S.C. 636(b)(1); Fed. R. Civ. P. 72(b); United States v. Male Juvenile, 121 F.3d 34,
38 (2d Cir. 1997). In a de novo review, the district court must consider the “[r]eport, the record,
applicable legal authorities, along with Plaintiff’s and Defendant’s objections and replies.” Diaz
v. Girdich, No. 04-cv-5061, 2007 WL 187677, at *2 (S.D.N.Y. Jan. 23, 2007) (internal quotation
marks omitted). But to the extent only generalized and conclusory objections are raised or a party
merely reiterates their original arguments, the district court will review the R&R strictly for clear
error. Harris v. Burge, No. 04-cv-5066, 2008 WL 772568, at *18 (S.D.N.Y. Mar. 25, 2008). The
distinction turns on whether a party’s objections are “clearly aimed at particular findings in the
magistrate’s proposal” or are merely an attempt at taking a “‘second bite at the apple’ by simply
re-litigating a prior argument.” Singleton v. Davis, No. 03-cv-1446, at 2007 WL 152136, at *2
(S.D.N.Y. Jan. 18, 2007) (citation omitted).
APPOINTMENT OF A REPRESENTATIVE
It is well settled that a minor or incompetent lacks the legal capacity to sue and any action
seeking to vindicate a right on their behalf must be commenced in the name of a legal guardian,
representative or similar fiduciary. Fed. R. Civ. P. 17(c); Berrios v. N.Y. City Hous. Auth., 564
F.3d 130, 134 (2d Cir. 2009). When a minor or incompetent’s authorized representative is unable
or unwilling to serve, or has an interest that conflicts with that of the minor, the court may appoint
a guardian (commonly referred to as a guardian ad litem) or next friend as its representative for
the purpose of prosecuting the claims. Fed. R. Civ. P. 17(c). Generally, a party seeking the
appointment of a guardian ad litem or next friend for a minor must demonstrate by a preponderance
of the evidence that the individual’s condition impedes their ability to protect her rights. See
Bowen v. Rubin, 213 F. Supp. 2d 220 (E.D.N.Y. 2001) (citing CPLR § 1201).
The procedure for the appointment of guardians or next of friend is governed by Fed. R.
Civ. P. 17(c), which provides:
[w]henever an infant or incompetent person has a representative, such as a general
guardian, committee, conservator, or other like fiduciary, the representative may
sue or defend on behalf of the infant or incompetent person. An infant or
incompetent person who does not have a duly appointed representative may sue by
a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem
[or next of friend] for an infant or incompetent person not otherwise represented in
an action or shall make such other order as it deems proper for the protection of the
infant or incompetent person.
Notably, Rule 17(c) provides no special qualifications for serving as a minor’s
representative. A close relationship or blood tie need not exist between the “proposed next of
friend” or representative and the minor. Bowen, 213 F. Supp. 2d at 226. When appointing a
representative, the court should consider whether the proposed individual is acting in good faith,
has an interest in the welfare of the individual, is motivated by a sincere desire to seek justice on
behalf of the minor and has the ability to prosecute the claims asserted. See Ad Hoc Comm. of
Concerned Teachers on Behalf of Minor & Under Age Students Attending Greenburgh Eleven
Union Free Sch. Dist. v. Greenburgh No. 11 Union Free Sch. Dist., 873 F.2d 25, 31 (2d Cir. 1989).
Once the Court appoints a representative, it maintains a continuing obligation to supervise the
representative’s work. See Dacanay v. Mendoza, 573 F.2d 1075, 1079 (9th Cir.1978)
During the pendency of the instant litigation, Defendant Colin objected to Jones serving as
the representative of the infant. Defendant claimed Jones, who also asserted individual claims
against Defendants, was conflicted and could no longer objectively and effectively advocate on
D.J.’s behalf. 2 In response to Defendant’s claim of a conflict of interest, counsel for D.J. moved
for the appointment of Megahey, a New York Board Certified Behavior Analyst 3 and Special
Education Teacher (see ECF No. 116-4), to serve as next friend for the infant. (See Minute Entry
for Proceeding before Magistrate Judge McCarthy, dated October 30, 2015; ECF No. 107-1.)
Upon due consideration, MJ McCarthy recommended the appointment of Megahey as D.J.’s next
The Court notes that there has been no judicial determination that a conflict of interest actually exists that would
prevent Jones from continuing to serve as D.J.’s representative. Moreover, the judicial appointment of a representative
other than Jones would make moot the need for the Court to make such a determination.
Behavior Analysis is the scientific study of principles of learning and behavior. A Board Certified Behavior Analyst
is an individual who has completed the requisite graduate level course work and has passed the state licensing exam.
See generally, Behavior Analyst Certification Board, https://bacb.com/about-behavior-analysis/ (last visited Apr. 12,
of friend. Defendants now object to the appointment of Megahey solely on the basis that she was
purportedly chosen by Plaintiff’s counsel rather than the Court. Defendants’ objection, however,
It is undisputed that D.J. is not only a minor but also suffers from mental health issues such
that she lacks the capacity to sue. Assuming there is a conflict of interest which prevents Jones
from continuing to serve as D.J.’s representative in this action, the appointment of a guardian ad
litem or next of friend is warranted and necessary in order to preserve and litigate the minor’s
interest and claims. Defendant presents no case law to support the proposition that, in Rule 17
applications, the moving party may not propose an individual to serve as the representative for the
minor (or incapacitated individual). 4 While counsel may make a recommendation, ultimately, it
is the Court who, upon taking into account such factors as previously discussed, independently
appoints the individual to serve as the minor’s representative. The mere fact that Plaintiff’s counsel
proposed or recommended Megahey does not disqualify her from serving in the capacity of next
friend. There being a no legal or meritorious objection raised warranting the denial of the
application, the Court appoints Megahey to serve as the next friend of D.J. for the purpose of
litigating all claims asserted on her behalf in this action.
Upon a de novo review upon due consideration, the Court adopts the conclusion of MJ
McCarthy. Accordingly, the Court appoints Megahey to serve as D.J.’s next of friend. Plaintiff
is directed to amend their pleadings in accordance with this Opinion and Order. The clerk of the
Defendant cites Neilson v. Colgate-Palmolive Co., 199 F.3d 642 (2d Cir. 1999), however this case does not stand
for the proposition that a prospective guardian must be disqualified on the basis that she was proposed by a party.
(See ECF No. 107 at 10.)
court is directed to terminate the motion at ECF Docket No. 98.
Dated: ApriJ21 , 2017
White Plains, New York
NELSON S. ROMAN
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