J.M. v. Tulare City School District ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 J.M., a minor, by and through his guardian Case No. 1:21-cv-01766-NONE-EPG ad litem Farrah McWilliams, 12 ORDER DENYING APPLICATION OF Plaintiff, FARRAH MCWILLIAMS FOR 13 APPOINTMENT AS GUARDIAN AD v. LITEM FOR J.M., A MINOR, WITHOUT 14 PREJUDICE TULARE CITY SCHOOL DISTRCT, 15 (ECF No. 6) Defendant. 16 17 On December 14, 2021, J.M., a minor, filed this action against the Tulare City School 18 District. (ECF No. 1). Before the Court is Farrah McWilliams’ application to be appointed as 19 guardian ad litem for J.M. (ECF No. 6.) Because the application does not comply with Local Rule 20 202, the Court will deny the application without prejudice. 21 I. LEGAL STANDARDS 22 Under Federal Rule of Civil Procedure 17(c)(2), “[a] minor or an incompetent person who 23 does not have a duly appointed representative may sue by a next friend or by a guardian ad 24 litem.” Fed. R. Civ. P. 17(c)(2). Local Rule 202 further states, in pertinent part: 25 (a) Appointment of Representative or Guardian. Upon commencement of an 26 action or upon initial appearance in defense of an action by or on behalf of a minor or incompetent person, the attorney representing the minor or 27 incompetent person shall present (1) appropriate evidence of the appointment of a representative for the minor or incompetent person under state law or (2) a 28 motion for the appointment of a guardian ad litem by the Court, or, (3) a 1 showing satisfactory to the Court that no such appointment is necessary to ensure adequate representation of the minor or incompetent person. See Fed. 2 R. Civ. P. 17(c). 3 . . . 4 (c) Disclosure of Attorney’s Interest. When the minor or incompetent is represented by an attorney, it shall be disclosed to the Court by whom and the 5 terms under which the attorney was employed; whether the attorney became involved in the application at the instance of the party against whom the 6 causes of action are asserted, directly or indirectly; whether the attorney stands in any relationship to that party; and whether the attorney has received 7 or expects to receive any compensation, from whom, and the amount. 8 E.D. Cal. L.R. 202. The decision to appoint a guardian ad litem “must normally be left to the 9 sound discretion of the trial court.” United States v. 30.64 Acres of Land, 795 F.2d 796, 804 9th 10 Cir. 1986). 11 II. DISCUSSION 12 On December 14, 2021, Farrah McWilliams filed her first application to be appointed as 13 J.M.’s guardian ad litem. (ECF No. 2.) The Court denied the application without prejudice 14 because it did not disclose J.M.’s attorney’s interest and therefore did not comply with Local Rule 15 202. (ECF No. 5.) 16 The present application, which was filed on December 17, 2021, states that Plaintiff J.M. 17 is a minor and was born on July 31, 2016. (ECF No. 6.) J.M. has no general guardian and no 18 previous petition for appointment of a guardian ad litem has been filed in this matter. (Id.) Mrs. 19 McWilliams is J.M.’s mother, primary caretaker, and education rights holder. (Id.) Mrs. 20 McWilliams resides in Tulare, California, and is fully competent to act as J.M.’s guardian ad 21 litem. (Id.) She does not have any interests adverse to J.M. and is not connected in business with 22 the proposed adverse party. (Id.) Mrs. McWilliams is fully competent and responsible to prosecute this action for J.M.1 (Id.) 23 According to the application, Daniel Shaw was retained by Mrs. McWilliams to represent 24 J.M. in this matter. (ECF No. 6.) The Shaw Firm will be compensated in this matter should they 25 be deemed the prevailing party. (Id.) Ms. Shaw did not become involved in this matter at the 26 27 1 The application states that “Ms. McWilliams is fully competent and responsible to prosecute the proposed action 28 for S.B.” (ECF No. 6.) However, the reference to S.B. appears to be an error. 1 | insistence of the Defendant, and he does not stand in any relationship to any party, other than as 2 | attorney for Mrs. McWilliams and J.M. Cd.) 3 The application does not comply with Local Rule 202(c). Although the application 4 | provides further information about Mr. Shaw’s employment, it does not disclose the terms under 5 | which he was employed or the amount or percentage of compensation he expects to receive if 6 | Plaintiff prevails. The Court will therefore deny the application without prejudice to refiling an 7 | application that complies with Local Rule 202. 8 I. CONCLUSION AND ORDER 9 For the foregoing reasons, it is HEREBY ORDERED that Farrah McWilliams’ 10 | application (ECF No. 6) to be appointed as guardian ad litem for J.M. is DENIED without 11 | prejudice. 12 3 IT IS SO ORDERED. 14 Dated: _ December 27, 2021 [sf ey 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28