Erie Insurance Property and Casualty Company v. Nichols et al

Filing 69

MEMORANDUM OPINION AND ORDER The 54 Renewed Motion by Erie Insurance Property and Casualty Company for Entry of Default Judgment by the Court against William Jackson Stuck is DENIED, and the alternative request for an independent medical evaluat ion is DENIED without prejudice to its renewal once the guardian ad litem appointed herein is served with a motion to that effect that is accompanied by a memorandum of law fully supporting the request; directing that William W. Pepper is appointe d as guardian ad litem for William Jackson Stuck; further directing that the 66 motion for leave to serve process is GRANTED, and that plaintiff effect service of process upon Mr. Stuck's representative within fourteen days of the entry of this order. Signed by Judge John T. Copenhaver, Jr. on 6/7/2019. (cc: counsel of record) (ts)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ERIE INSURANCE PROPERTY AND
CASUALTY COMPANY,
Plaintiff,
v.

Civil Action No. 2:17-cv-03126

THE ESTATE OF SANDRA KAY NICHOLS,
ALLISON ELAINE MCGINNIS,
ASHLEE NICOLE NICHOLS ROSAS, and
WILLIAM JACKSON STUCK,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the plaintiff’s renewed motion for default
judgment against defendant William Jackson Stuck, filed November
12, 2018, or alternatively that he be the subject of an
independent medical examination; and plaintiff’s alternative
motion for the appointment of a guardian ad litem and for leave
to serve process, filed January 07, 2019.

I.

Background

The relevant factual background is set forth in the
court’s memorandum opinion and order, entered December 6, 2018,
in which it granted plaintiff Erie Insurance Property and
Casualty Co.’s (“Erie”) motion for summary judgment against the
three defendants other than Mr. Stuck.

ECF No. 64.

Mr. Stuck, who is understood to be both incompetent to
stand trial and incarcerated, has not appeared in this case.
The plaintiff attempted service on Mr. Stuck by serving Timbera
Wilcox who purported to waive service on his behalf in this
matter.

ECF No. 15.

Ms. Wilcox was appointed as Mr. Stuck’s

guardian ad litem in the underlying state civil matter in which
he was sued by his three co-defendants here.

Order Appointing a

Guardian Ad Litem, ECF No. 67-2.
The plaintiff attempted to serve the summons on Ms.
Wilcox by both sending a letter requesting a valid waiver
directly to her and by having a process server deliver the
summons to Brian Yost, Esq.
of Service, ECF No. 67-1.

Pl.’s Mot., ECF No. 67, at 2; Proof
Erie asserts that Mr. Yost was an

“agent” of Ms. Wilcox, entitled to receive service on her behalf
and that it served process on “Timbera C. Wilcox as Guardian ad
Litem for William Stuck, care of Brian Yost at Holroyd & Yost.”
The court notes, however, that Mr. Yost could not be expected to
be an agent of Ms. Wilcox, Mr. Stuck’s guardian ad litem in the
underlying state civil matter, while his law firm represents
those who seek recovery from Mr. Stuck.

Erie contends that it

did not file the “Proof of Service” showing that it attempted
service on Ms. Wilcox by leaving a summons with Mr. Yost until

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now because it believed the waiver eventually signed by Ms.
Wilcox was effective.

Pl.’s Mot., ECF No. 67, at 2.

Erie asserts that service upon Ms. Wilcox in this
matter was sufficient, and thus, that it is entitled to default
judgment pursuant to Federal Rule of Civil Procedure 55:

“When

a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party’s default.”

Id.

Erie requests, in the alternative to the court’s
entering default judgment against Mr. Stuck, that Ms. Wilcox be
named Mr. Stuck’s guardian ad litem in this action.

Plaintiff

contends that appointing Ms. Wilcox would best serve judicial
economy, as she has represented Mr. Stuck as guardian ad litem
for two years in the underlying state civil matter.
Before granting Erie’s motion for default judgment,
the court must determine whether Mr. Stuck has been
appropriately served with process in this matter.

II.

Analysis

Federal Rule of Civil Procedure 4(g) provides that a
minor or incompetent person “must be served by following state
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law for serving a summons or like process on such a defendant in
an action brought in the courts of general jurisdiction of the
state where service is made.”

The relevant West Virginia Rule

of Civil Procedure is Rule 4(d)(3), which provides that service
upon incompetents fourteen years of age or older should be done
in accordance with Rule 4(d)(2).
West Virginia Rule of Civil Procedure 4(d)(2) states
that if there is no guardian or conservator for the incompetent,
and the incompetent’s father or mother cannot be found, then
“service of the summons and complaint shall be made upon a
guardian ad litem appointed under Rule 17(c).”

This is the rule

describing how an incompetent person may be served with process
in West Virginia in accordance with the Federal Rules.

See Fed.

R. Civ. P. 4(g).
Federal Rule of Procedure 17(c)(1) specifies that
“[t]he following representatives may sue or defend on behalf of
a minor or an incompetent person: (A) a general guardian; (B) a
committee; (C) a conservator; or (D) a like fiduciary.”

An

“other like fiduciary” is held to include a guardian ad litem.
Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir. 1989).
Additionally, Rule 17(c)(2) prescribes 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
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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.”
Erie argues that the court is not required to appoint
a guardian ad litem in this action for Mr. Stuck because he is
represented by the guardian ad litem appointed by the state
court in the underlying civil matter.
Erie’s argument is unpersuasive.

As just noted, the

Federal Rules of Civil Procedure specifically state that “the court
must appoint a guardian ad litem . . . to protect a minor or
incompetent person who is unrepresented in an action.”

Fed. R.

Civ. P. 17(c)(2).
Mr. Stuck did have a guardian ad litem appointed to him
in the underlying civil action in state court in which he was being
sued for killing his daughter.

However, in the declaratory action

filed by plaintiff in this court, he has been, and remains,
unrepresented.

III. Conclusion

Inasmuch as Mr. Stuck nor any representative appointed
to represent his interests in this matter has been served, it is
ORDERED that plaintiff’s motion for default judgment be, and
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hereby is, denied.

Inasmuch as Mr. Stuck is understood to be in

the custody of an agency of the state of West Virginia, the
plaintiff’s alternative request for an independent medical
evaluation is denied without prejudice to its renewal once the
guardian ad litem appointed herein is served with a motion to
that effect that is accompanied by a memorandum of law fully
supporting the request.
Further, it appearing that a guardian ad litem should
be appointed to represent the interests of William Jackson
Stuck, it is ORDERED that William W. Pepper, a discreet and
competent practicing attorney in Kanawha County, West Virginia,
be, and hereby is, appointed as guardian ad litem for William
Jackson Stuck.
Good cause being shown for the plaintiff’s failure to
effect service upon Mr. Stuck, it is further ORDERED that
plaintiff’s motion for leave to serve process be, and hereby is,
granted, and that plaintiff effect service of process upon Mr.
Stuck’s representative within fourteen days of the entry of this
order.

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The Clerk is directed to transmit this memorandum
opinion and order to all counsel of record.
ENTER: June 7, 2019

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