Miller v. United States

Danial Laird Nevada Bar #11831 dan@lairdlaw.com Jamal K. Alsaffar, pro hac vice Texas Bar #24027193 jalsaffar@nationaltriallaw.com Tom Jacob, pro hac vice Texas Bar #24069981 tjacob@nationaltriallaw.com 7500 Rialto Blvd Bldg. Two, Ste. 250 Austin, Texas 78735 Attorneys for the Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BLAKE and JENNA MILLER, Case Number Individually and on Behalf of C.M., 2:19-cv-01293-APG-VCF a Minor Child, Plaintiffs UNOPPOSED AMENDED MOTION TO APPOINT v. GUARDIAN AD LITEM UNITED STATES OF AMERICA, Defendant 1 Plaintiffs request the Court appoint Chip Evans, Evans & Herlihy Law 2 Firm, 4407 Bee Caves Rd., Suite 611, Austin, TX 78746 as guardian ad litem 3 for minor child C.M., for the limited purpose of reviewing a settlement agree4 ment affecting the resolution of this case and ensuring no conflict of interest 5 exists. 1 BACKGROUND 2 This is a medical malpractice case. It is alleged that C.M. suffered severe 3 and irreversible injury during labor and delivery at Mike O’Callaghan Fed4 eral Medical Center. His parents, Blake and Jenna Miller, filed this lawsuit 5 individually and on behalf of C.M. 6 The Parties to this lawsuit reached a proposed settlement that requires 7 the Court’s approval prior to review and decision by the Attorney General or 8 his designee. Because C.M. is a minor child, Plaintiffs request that the Court 9 appoint a guardian ad litem to protect the interests of C.M. for the limited 10 purpose of reviewing the settlement agreement and determining that this 11 settlement is in C.M.’s best interest. 12 ANALYSIS 13 Under Fed. R. Civ. P. 17(c), the Court may appoint a guardian ad litem 14 where the Court believes the appointment to be in the best interest of a mi15 nor or disabled individual. Scannavino v. Fla. Dep’t of Corrections, 242 F.R.D. 16 662, 666-67 (M.D. Fla. 2007). The Court has “broad discretion to fashion ap17 propriate safeguards to protect the interests of incompetent persons and to 18 decide whether to appoint a guardian ad litem under Rule 17(c).” J.B. v. Ban19 ning Unified Sch. List., No. EDCV 18-2134-JGB, 2018 WL 6164312 , at *1 20 (C.D. Cal. Oct. 18, 2018). 21 Here, both parents are parties. As a term of settlement, the United 22 States requires Plaintiffs to obtain court approval of the settlement. An inde23 pendent guardian ad litem will help the Court determine whether the settle24 ment is within the best interests of C.M. 1 Plaintiffs request the Court appoint Chip Evans, Evans & Herlihy Law 2 Firm, 4407 Bee Caves Rd., Suite 611, Austin, TX 78746, as an appropriate 3 guardian ad litem for C.M. Plaintiffs currently live in the Killeen, Texas area 4 where they have purchased land and intend to live there permanently. Also, 5 their families live in Texas. 6 Plaintiffs have conferred with the United States, and they do not oppose 7 this appointment. Mr. Evans is a licensed attorney in Texas and has consid8 erable experience in serving as guardian for these types of cases. He is also 9 board certified by the Texas Board of Legal Specialization. Given C.M.’s sub10 stantial future medical needs in the local area of Texas where C.M. has his 11 permanent residence, it is important to provide a guardian ad litem who un12 derstands the availability of local medical care services. Plaintiffs contacted 13 Mr. Evans and he is willing to accept this appointment as guardian ad litem, 14 should the Court approve this motion. 15 CONCLUSION 16 Plaintiffs request that the Court appoint Chip Evans as guardian ad li17 tem to review the settlement in the above styled case and report to the Court 18 on his review. Respectfully Submitted, /s/ Jamal Alsaffar JAMAL K. ALSAFFAR, pro hac vice jalsaffar@nationaltriallaw.com Texas State Bar #24027193 TOM JACOB, pro hac vice tjacob@nationaltriallaw.com Texas State Bar #24069981 Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham, & Jacob PLLC 7500 Rialto Blvd, Bldg. Two, Ste [250] Austin, TX 78735 (512) 476-4346 (o) (512) 467-4400 (f) DANIAL LAIRD dan@lairdlaw.com Nevada Bar #11831 Laird Law PLLC 8991 West Flamingo Road, Suite C, Las Vegas, NV 89147 (702) 202-3091 (o) Attorneys for the Plaintiff 1 CERTIFICATE OF CONFERENCE 2 By my signature above, Plaintiffs have conferred with the Government 3 and the Government does not oppose this motion. 1 CERTIFICATE OF SERVICE 2 By my signature above, I certify that a copy of this pleading, Unopposed 3 Amended Motion to Appoint Guardian ad Litem, has been sent to the follow4 ing on December 23, 2021 via the Court’s CM/ECF notice system. Brianna Smith U.S. Attorney’s Office 501 Las Vegas Blvd South Suite 1100 Las Vegas, NV 89101702-388-6533 Brianna.Smith@usdoj.gov Attorney for the Defendant UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BLAKE and JENNA Case Number MILLER, Individually and on 2:19-cv-01293-APG-VCF Behalf of C.M., a Minor Child, Plaintiffs ORDER V. UNITED STATES OF AMERICA, Defendant 1 After reviewing the motion to appoint a guardian ad litem, the Court 2 ORDERS Chip Evans, Evans & Herlihy Law Firm, 4407 Bee Caves Rd., 3 Suite 611, Austin, TX 78746, shall be appointed the Guardian Ad Litem to 4 protect the interest of C.M. and to review the proposed settlement in the 5 above styled case. Within two weeks of the entry of this Order, Mr. Evans will 6 issue his report to the Court. [8] IT IS SO ORDERED. 11 Cam Ferenbach United States Magistrate Judge DATED 12-29-2021 Page 1 of 1