Beard v. County of Stanislaus

[7] UNITED STATES DISTRICT COURT [8] 9 EASTERN DISTRICT OF CALIFORNIA [10] SHANE BEARD, et al., Case No. 1:21-cv-00841-DAD-SAB [11] Plaintiffs, ORDER GRANTING MOTION FOR 12 APPOINTMENT OF GUARDIAN AD v. LITEM AND APPOINTING DONNIE R. 13 COX AS GUARDIAN AD LITEM FOR COUNTY OF STANISLAUS, et al., MINOR PLAINTIFF N.P. [14] Defendants. (ECF Nos. 6,8) [16] 17 On May 24, 2021, Plaintiffs Shane Beard, Hilda Perez, and N.P., a minor, filed a 18 complaint in this action. (ECF No. 1.) On May 26, 2021, the Court ordered Plaintiffs’ counsel 19 to file, within ten (10) days of entry of the order, evidence that a representative has been 20 appointed under state law or a motion for appointment of a guardian ad litem that meets the 21 requirements of Local Rule 202. (ECF No. 4.) On May 27, 2021, Plaintiffs’ counsel Robert R. 22 Powell (“Mr. Powell”) filed a motion to appoint Donnie R. Cox (“Mr. Cox”), as guardian ad 23 litem for N.P. (ECF No. 6.) The declaration of Mr. Powell proffered that the submission would 24 be accompanied by a declaration containing information pertaining to the proposed guardian ad 25 litem Mr. Cox’s “relation to the parties.” (ECF No. 6-2 at 1-2.) The declaration of Mr. Cox 26 failed to explain the relation to the parties or provide any information in this regard aside from 27 proffering generally that Mr. Cox has no interests adverse to N.P., and will receive no compensation for work on behalf of N.P. (ECF No. 6-1 at 1-2.) Given this deficiency, the Court 1 found supplemental briefing would be appropriate as to the relationship between Mr. Cox and all 2 Plaintiffs in this action, including the minor N.P., as well as information pertaining to the 3 professional relationship between Plaintiffs’ counsel and Mr. Cox, including whether Mr. Cox 4 serves as guardian ad litem in Mr. Powell’s cases and vice versa. On May 27, 2021, Court 5 ordered supplemental briefing to be filed within seven (7) days, and on June 3, 2021, Mr. Powell 6 submitted supplemental briefing, as well as a supplemental declaration. (ECF Nos. 8, 8-1.) No 7 supplemental declaration was submitted by Mr. Cox. 8 Rule 17 of the Federal Rules of Civil Procedure provides that a suit by a minor may be 9 brought or defended by: “(A) a general guardian; (B) a committee; (C) a conservator; or (D) a 10 like fiduciary.” Fed. R. Civ. P. 17(c)(1). A minor who does not have a duly appointed 11 representative may sue by next friend or a guardian ad litem. Fed. R. Civ. P. 17(c)(2). “The 12 court must appoint a guardian ad litem – or issue another appropriate order – to protect a minor 13 or incompetent person who is unrepresented in an action.” Id. Further, the Local Rules of the 14 Eastern District of California state: 15 Upon commencement of an action or upon initial appearance in defense of an action by or on behalf of a minor or incompetent person, the attorney representing 16 the minor or incompetent person shall present (1) appropriate evidence of the appointment of a representative for the minor or incompetent person under state 17 law or (2) a motion for the appointment of a guardian ad litem by the Court, or, (3) a showing satisfactory to the Court that no such appointment is necessary to 18 ensure adequate representation of the minor or incompetent person. See Fed. R. Civ. P. 17(c). [19] 20 L.R. 202(a). 21 This requires the Court to take whatever measures it deems appropriate to protect the 22 interests of the individual during the litigation. United States v. 30.64 Acres of Land, More or 23 Less, Situated in Klickitat Cty., State of Wash., 795 F.2d 796, 805 (9th Cir. 1986). The 24 appointment of the guardian ad litem is more than a mere formality. Id. “A guardian ad litem is 25 authorized to act on behalf of his ward and may make all appropriate decisions in the course of 26 specific litigation.” Id. A guardian ad litem need not possess any special qualifications, but he 27 must “be truly dedicated to the best interests of the person on whose behalf he seeks to litigate.” 1 guardian ad litem cannot face an impermissible conflict of interest with the ward and courts 2 consider the candidate’s “experience, objectivity, and expertise” or previous relationship with the 3 ward. Id. (citations omitted). 4 “[W]hen a parent brings an action on behalf of a child, and it is evident that the interests 5 of each are the same, no need exists for someone other than the parent to represent the child’s 6 interests under Rule 17(c).” Gonzalez v. Reno, 86 F.Supp.2d 1167, 1185 (S.D. Fla.), aff’d sub 7 nom. Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000). While a parent is generally appointed 8 as a guardian ad litem, there are situations where the best interests of the minor and the interests 9 of the parent conflict. Anthem Life Ins. Co. v. Olguin, No. 1:06-CV-01165 AWI-NEW, 2007 10 WL 1390672 , at *2 (E.D. Cal. May 9, 2007). Therefore, a parent is not entitled as a matter of 11 right to act as guardian ad litem for the child. Id. at *2. 12 Mr. Cox and Mr. Powell apparently vehemently disagree with the Court performing its 13 judicial function or inquiring for more substantive information pertaining to the appointment of 14 Mr. Cox as guardian ad litem for N.P., notwithstanding the Court’s duty to do so, and despite the 15 failure by counsel and Mr. Cox to provide any basis or explanation of the relationship between 16 Mr. Cox and the parties even though the declaration of Mr. Powell expressly stated the 17 submission would so.1 The Court declines their invitation to offended.2 The Court does inform [18] 1 Specifically, Plaintiffs’ supplement briefing begins in part: “Though only some of the many points in the 19 paragraph are laid out as specific inquiries, Plaintiffs’ Counsel would prefer to attempt to address and answer everything in the order that has an aura of questioning as to the propriety of Mr. Cox’s selection as G.A.L. It should 20 come as no surprise to the Court that this Order is perceived as questioning the integrity of both officers of this Court, and for reasons neither can conceive and certainly know do not exist. Given that perception, correct or 21 incorrect, Plaintiffs will address every one of the specific inquiries, including those that may not be ‘specific’ yet fall in the description of ‘questioning.’ ” (ECF No. 8 at 2.) [22] 2 However, the Court will note that counsel appears to refer to the yet to appear Defendant Stanislaus County as 23 engaging in a “corrupt” process, and then also appears to aver to some disfavor to Plaintiffs’ counsel, or favor to Stanislaus County from the Eastern District in general, stating: “although the relationship between Plaintiffs’ 24 Counsel and Mr. Cox has not once been questioned in the aforementioned 22 years knowing each other, it has now been questioned twice in lawsuits filed in the Eastern District Court of California in less than one year’s time, both 25 against Stanislaus County’s child welfare agency.” (ECF No. 8 at 3, 5.) The undersigned was not aware of any prior questioning of Mr. Powell and Mr. Cox by other judges in this district, and was only basing the request for supplemental briefing on counsel’s failure to provide the basic information that counsel stated would be provided. [26] Based on counsel’s efforts in the supplemental briefing to offend the Court, the undersigned has indeed now become aware of the previous questioning of Mr. Cox and Mr. Powell in this district. In the action that counsel has made the 27 undersigned privy to, the Court admonished counsel stating: “In ruling on the pending request for reconsideration, the undersigned reviewed the entire transcript for the June 26, 2020 hearing on plaintiffs’ motion. At several points ee III III IIE II IGE IES IE ESOS 1 | counsel that upon review of the supplemental briefing, the Court’s first impression of the 2 demeanor reflected in the briefing is that counsel “doth protest too much, methinks.” See 3 | William Shakespeare, Hamlet Act III, Scene 2; see also Ghorbani v. Pac. Gas & Elec. Co. Grp. 4 | Life Ins., 100 F. Supp. 2d 1165, 1168 (N.D. Cal. 2000) (“To the contrary, the strenuousness with 5 | which a defendant objects to a plaintiff's claim might legitimately be regarded as a sign that a 6 | case has merit. As Gertrude’s observation to Hamlet reveals, suspicions are rightly fueled by 7 | one who ‘doth protest too much.’ ”). However, at this juncture, and mindful of the Court’s 8 | future duty to approve any settlement of the minor’s claims, based on the proffer of Mr. Powell 9 | and Mr. Cox and despite the improper rhetoric, the supplemental briefing did provide the Court 10 | with the additional information it needed to make the guardian ad litem decision. Therefore, the 11 | Court shall grant the motion to appoint Mr. Cox as guardian ad litem. It should be noted that the 12 | Court will continue to perform its judicial function in all future matters in cases before it, 13 | applying the law to the facts. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The motion to appoint Donnie R. Cox as N.P’s guardian ad litem (ECF No. 6) is 16 GRANTED; and 17 2. Donnie R. Cox is appointed as guardian ad litem for minor Plaintiff N.P. [18] 19 IT IS SO ORDERED. DAM Le 20 | Dated: _June 15, 2021 _ OO UNITED STATES MAGISTRATE JUDGE [25] 26 | undersigned will mildly characterize as inappropriate. Having been warned, any repetition of such conduct will likely result in the imposition of sanctions.” (Webb et al v. County of Stanislaus, 19-cv-01716-DAD-EPG, ECF No. 27 | 36 n.4.) Additionally, the Court will note that despite not expressly informing the Court in the first submission and blanketly declaring no financial interest in acting as guardian ad litem, Mr. Cox and Mr. Powell do have a 28 | practice of acting as guardian ad litem in each other’s cases.