UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
February 9, 2011
NEXON AMERICA, INC.
SITHU HEIN, ET AL.
The opinion of the court was delivered by: Percy Anderson, United States District Judge
CIVIL MINUTES - GENERAL
Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGE
Paul Songco Not Reported N/A
Deputy Clerk Court Reporter Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Proceedings: IN CHAMBERS - COURT ORDER
Before the Court is a First Amended Complaint ("FAC") filed by plaintiff Nexon America, Inc. ("Plaintiff"). On February 7, 2011 Plaintiff filed a response to this Court's January 24, 2011 Order to Show Cause why this action should not be dismissed for lack of prosecution. Plaintiff explained that it had served the two Defendants in this action, but recently learned that Defendants are both minors. Plaintiff purports to unilaterally appoint guardian ad litems for the Defendants by filing the FAC, which names two individuals as Defendants' guardian ad litems.
Under Federal Rule of Civil Procedure 17 "[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 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." Fed. R. Civ. P. 17(c)(2) (emphasis added). Plaintiff does not have the authority to appoint a guardian ad litem for Defendants, and this Court has not appointed any guardian ad litem for the Defendants. For these reasons, Plaintiff's FAC is stricken.
Moreover, Plaintiff has not demonstrated that there are any other duly appointed representatives who are defending this action on Defendants' behalf. Without ruling on the adequacy of Plaintiff's response to the January 24, 2011 Order to Show Cause, the Court hereby orders Plaintiff to show cause why this action should not be dismissed without prejudice because Defendants are unrepresented minors who lack the capacity to be sued and/or for lack of prosecution. Plaintiff is ordered to file its written response no later than February 23, 2011. Failure to respond by this date may subject Plaintiff to the imposition of sanctions, including the dismissal of this action without prejudice.
IT IS SO ORDERED.
Initials of Preparer
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