Montgomery v. Homesite Insurance Company (TV2)

Filing 23

ORDER granting 18 Motion to Appoint Guardian Ad Litem. The parties and Clerk are ordered to include Kerry Knox on all pleadings moving forward. The Court reserves ruling on any issue regarding any possible assessment of costs for payment of Mr. Knoxs fees and expenses pending resolution of this case. Signed by Magistrate Judge Susan K Lee on 1/14/2020. (CNC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER
JOHN DAVID MONTGOMERY,
Plaintiff,
v.
HOMESITE INSURANCE COMPANY,
Defendant.

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4:18-cv-00023-TAV-SKL

ORDER
Before the Court is the Motion to Appoint Guardian Ad Litem [Doc. 18] filed by counsel for
Plaintiff Jonathan D. Montgomery, pursuant to Tennessee Supreme Court Rule 8, Tennessee Rules
of Professional Conduct, Rule 1.14, which addresses clients with diminished capacity. No party has
objected to the motion. Upon review of the motion, the supporting proof, the argument of counsel
during a telephonic status conference held January 2, 2020, and the post-hearing filings, the Court
finds the motion [Doc. 18] is well-taken and it is GRANTED to the extent set forth herein.1
Accordingly, the Court appoints Kerry Knox, a licensed attorney in Murfreesboro, Tennessee,
who is admitted to practice before this Court, as the Guardian Ad Litem for Plaintiff. Mr. Knox is
appointed for the limited purpose of representing Plaintiff’s best interests in this litigation, including
but not limited to working with counsel for Plaintiff and with Plaintiff himself to proceed in this

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The Court notes that Plaintiff apparently has not been found to be incompetent in unrelated state
criminal court proceedings. 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). “A decision to appoint a guardian ad litem under Rule 17(C) “does not require a prior
adjudication of incompetency through a state proceeding,” and at least the Fourth Circuit “has held
such an appointment to be within the discretion of the district court . . . .” Demby v. Maryland Dep’t
of Health & Mental Hygiene, No. CCB-06-1816, 2011 WL 5853266, at *2 (D. Md. Nov. 21, 2011)
(citing Fonner v. Fairfax Cty., 415 F.3d 325, 330 (4th Cir. 2005)).

litigation. Should this case be resolved by settlement, the Court reserves ruling as to whether it will
require proof as to how the settlement is in Plaintiff’s best interest. See, e.g., March v. Levine, No.
01-A-01-9708-PB00437, 1999 WL 140760, at *5 (Tenn. Ct. App. Mar. 17, 1999) (“The settlement
of a claim by or against an infant or incompetent person must be based on proof showing that the
settlement is in the . . . incompetent person’s best interests.” (citing Thomas v. R.W. Harmon, Inc.,
760 S.W.2d 212 (Tenn. Ct. App. 1988)); see also Tenn. Code Ann. § 34-1-107 (“Guardian ad litem;
appointment; waiver; powers and duties”). The Court further reserves ruling on any issue of how
any recovery on behalf of Plaintiff, through settlement or not, will be distributed. See Tenn. Code
Ann. § 34-1-104 (“Minor or person with a disability; distribution of money or property not
exceeding sum of twenty-five thousand dollars”). The parties have not addressed these issues or the
extent to which they apply in this case.
Finally, the parties did not address payment of Mr. Knox’s fees and expenses. The Court
reserves ruling on any issue regarding any possible assessment of costs for payment of Mr. Knox’s
fees and expenses pending resolution of this case
The parties and Clerk are ordered to include Mr. Knox on all pleadings moving forward,
using the provided contact information: Kerry Knox (TN Bar No. 023302), 117 South Academy
Street Murfreesboro, TN 37130; Telephone: [phone], Facsimile: [phone], email:
[e-mail]
SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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