The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING THE PETITION FOR APPOINTMENT OF BRIAN K. CUTTONE AS GUARDIAN AD LITEM FOR PLAINTIFF GLEN BEATY
(Documents 36-38 & 43-45)
Plaintiff Glen Beaty filed this civil rights action on September 23, 2009. (Doc. 1.) Defendants were served on September 25, 2009, and by subsequent stipulations, Defendants were granted additional time within which to file their responsive pleadings. (See Docs. 9-12 & 14, 23, 30.)
On February 19, 2010, counsel for Plaintiff filed a Petition for Appointment of Brian K. Cuttone, Esq., as Guardian ad Litem on Behalf of Plaintiff Glen Beaty. (Doc. 36.) Defendants have not opposed the petition.
Counsel for Plaintiff Russell D. Cook petitions this Court, pursuant to California Probate Code section 1003 and California Code of Civil Procedure section 372, to appoint attorney Brian K. Cuttone as guardian ad litem for Plaintiff. Mr. Cook has indicated that Plaintiff is currently receiving psychiatric care at Metropolitan State Hospital in Norwalk, California, following a commitment order issued by the Fresno County Superior Court. (Doc. 36 at 3; see also Doc. 43.) As of February 1, 2010, doctors at the psychiatric facility reported that Plaintiff remains incompetent. (Doc. 43.)
Mr. Cook contacted several individuals in his efforts to identify a guardian for Plaintiff, including Plaintiff's family members and individuals who have known him for many years. None would agree to act as Plaintiff's guardian. (Doc. 36 at 3.) Mr. Cook declares he contacted local attorney Brian K. Cuttone regarding the potential for appointment. Mr. Cuttone expressed his willingness to act as Plaintiff's guardian. (Doc. 37, ¶ 8; see also Doc. 38, ¶ 4.)
At a status conference held February 24, 2010, wherein counsel for all parties appeared, the Court indicated to Mr. Cook that additional information was necessary prior to any appointment. The Court was troubled that Mr. Cook did not explain and/or address the fact that he and Mr. Cuttone have the same business address and telephone number: a potential conflict of interest. Mr. Cook advised that while he and Mr. Cuttone share office space, they do not share business profits. The Court directed both Mr. Cook and Mr. Cuttone to file declarations explaining their business/legal relationship with one another. (See Doc. 41.) On March 2, 2010, both Mr. Cook and Mr. Cuttone filed declarations indicating their business arrangement is "simply sharing the expenses of the rental [space], copier, receptionist and other related expenses," and that neither shares a profit with the other. (Docs. 45-45.)
A plaintiff must have capacity to sue. "Capacity" refers to a party's personal right to litigate in federal court. See Fed.R.Civ.P. Rule 17(b). "[A]n 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 . . . the incompetent person who is unrepresented in an action." Fed.R.Civ.P. Rule 17(c)(2). Counsel for Beaty relies upon California Probate Code section 1003*fn1 and California Code of Civil Procedure section 372*fn2 in support of his position that Plaintiff Glen Beaty be appointed a guardian ad litem in the form of attorney Brian K. Cuttone.
Plaintiff is currently being treated at Metropolitan State Hospital in Norwalk, California, after he was declared incompetent in the related state criminal proceedings. Thus, in order to litigate the instant matter, a guardian must be appointed to represent Plaintiff's interests. See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997); U.S. v. 30.64 Acres of Land, More or Less, Situated in Klickitat County, State of Wash., 795 F.2d 796, 805 (9th Cir. 1986) (noting, in part, that absence of guardian ad litem effectively precludes the possibility of a binding contract of settlement because of the incompetency of one of the parties). Representation by an attorney is not sufficient to satisfy the requirements of Rule 17(c) of the Federal Rules of Civil Procedure. U.S. v. 30.64 Acres of Land, More or Less, Situated in Klickitat County, State of Wash., 795 F.2d at 806.
The Court is aware of counsel's numerous efforts to identify and obtain a guardian ad litem for Plaintiff. Most recently, Mr. Cuttone expressed a willingness to "represent the best interests of Mr. Beaty." (Doc. 38, ¶ 4.) Following consideration of all the related pleadings, and the oral representations made at the status conference of February 24, 2010, the Court is satisfied that Mr. Cuttone understands the duties, obligations and responsibilities of a guardian ad litem, and further, that he will perform those duties and obligations accordingly.
Notably, this Court makes no orders regarding compensation of the guardian ad litem as such a request is premature. (See Doc. ...