United States District Court, S.D. California
R.N., a minor by and through his guardian ad litem, Elizabeth Neel, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
REPORT AND RECOMMENDATION FOR ORDER GRANTING
MINOR'S COMPROMISE PETITION [ECF NO. 42]
HONORABLE ALLISON H. GODDARD UNITED STATES MAGISTRATE JUDGE
the Court is the ex parte petition of Elizabeth
Neel, mother and court-appointed guardian ad litem
of minor Plaintiff R.N., for approval of the compromise of
R.N.'s disputed claim. ECF No. 42. This Report and
Recommendation is submitted to United States District Judge
M. James Lorenz pursuant to 28 U.S.C. § 636(b)(1) and
Local Civil Rule 17.1 of the United States District Court for
the Southern District of California. After reviewing the
Petition and all supporting documents, and for the reasons
discussed below, the Court RECOMMENDS that
the District Court GRANT the Petition.
R.N. (“Plaintiff”) is a minor appearing by and
through his mother and court-appointed guardian ad
litem, Elizabeth Neel. ECF No. 42. Plaintiff, who was
two-years-old at the time and enrolled at the Marine Corps
Air Station Miramar Child Care Development Center
(“CDC”), was injured twice in two months. ECF No.
1 at 7-14. He filed this action under the Federal Tort Claims
Act (“FTCA”), alleging that his injuries were
caused by Defendants' negligence. Id.
on March 4, 2016, a teacher at the CDC closed an interior
classroom door on Plaintiff's pinky finger, causing a
fracture. ECF No. 1 at 2. To recover, Plaintiff was placed in
a “long arm club” cast for three weeks.
Id. Additionally, on April 12, 2016, Plaintiff
fractured his right femur while playing on an outdoor
structure, which Plaintiff attributes to Defendants'
failure to adequately supervise the children playing on the
structure. Id. at 2, 12. To recover from this second
injury, Plaintiff was placed in a spica cast for five weeks,
and thereafter attended physical therapy and had periodic
checkups with his pediatric orthopedic doctor. Id.
at 2. As of November 25, 2019, Plaintiff has recovered
completely from his injuries. Id. at 3.
November 25, 2019, Ms. Neel filed an ex parte
petition for approval of the minor's compromise of
claims. In the Petition, she requests that the Court approve
the proposed settlement. Under the terms of the settlement,
Plaintiff agreed to accept $50, 000.00 in exchange for
dismissing his claims against Defendants. Id.
Specifically, Defendants have agreed to issue one check in
the amount of $44, 000 made payable to Sage Settlement
Consulting. Id. Sage Settlement Consulting will then
issue two checks: one to fund future periodic payments in the
amount of $20, 000.00; and the second check made payable to
Carree K. Nahama, attorney for Plaintiff, in the amount of
$24, 000.00. Id. Defendants have agreed to pay the
Navy medical provider directly for their medical lien,
totaling $6, 000. Id.
well settled that courts have a special duty to safeguard the
interests of litigants who are minors in the context of
settlements proposed in civil suits. Robidoux v.
Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011); see
also Fed. R. Civ. P. 17(c) (district courts “must
appoint a guardian ad litem-or issue another
appropriate order-to protect a minor or incompetent person
who is unrepresented in an action.”). “In the
context of proposed settlements in suits involving minor
plaintiffs, this special duty requires a district court to
‘conduct its own inquiry to determine whether the
settlement serves the best interests of the
minor.'” Robidoux, 638 F.3d at 1181
(quoting Dacanay v. Mendoza, 573 F.2d 1075, 1080
(9th Cir. 1978)); see also Salmeron v. United
States, 724 F.2d 1357, 1363 (9th Cir. 1983) (holding
that “a court must independently investigate and
evaluate any compromise or settlement of a minor's claims
to assure itself that the minor's interests are
protected, even if the settlement has been recommended or
negotiated by the minor's parent or guardian ad
litem.”). To facilitate courts within this
district fulfilling the duty to safeguard, Local Rule 17.1(a)
provides that “[n]o action by or on behalf of a minor
or incompetent will be settled, compromised, voluntarily
discontinued, dismissed or terminated without court order or
judgment.” CivLR. 17.1(a).
Ninth Circuit established that courts reviewing the
settlement of a minor's federal claim should “limit
the scope of their review to the question whether the net
amount distributed to each minor plaintiff in the settlement
is fair and reasonable, in light of the facts of the case,
the minor's specific claim, and recovery in similar
cases.” Robidoux, 638 F.3d at 1181-82. They
should also “evaluate the fairness of each minor
plaintiff's net recovery without regard to the proportion
of the total settlement value designated for adult
co-plaintiffs or plaintiffs' counsel-whose interests
the district court has no special duty to safeguard.”
Id. at 1182 (citing Dacanay, 573 F.2d at
1078). “So long as the net recovery to each minor
plaintiff is fair and reasonable in light of their claims and
average recovery in similar cases, the district court should
approve the settlement as proposed by the parties.”
Robidoux, 638 F.3d at 1182.
Judge Skomal made a mediator's proposal (ECF No. 40),
Plaintiff decided to settle the case, with the understanding
that if the settlement is approved by the Court, Plaintiff
will be forever barred from seeking any further recovery or
compensation from Defendants on the claims that are proposed
to be dismissed. The undersigned has been assigned to this
matter (ECF No. 43) to fulfill the special duty of the court
to safeguard the interests of a minor in such a situation. In
doing so, this Court will analyze the proposed settlement,
the method of disbursing Plaintiff's net recovery, and
the proposed attorney fees and costs.
action commenced on August 7, 2017. ECF No. 1. Ms. Neel filed
the instant motion for approval of the minor's compromise
on November 25, 2019, just one week before the final
pre-trial conference was set to be held. See ECF No.
41. Thus, this case has been thoroughly developed over the
course of the litigation. See ECF Nos. 15, 21, 33,
Court finds that the proposed settlement allows for the
certainty of recovery for the minor Plaintiff, as opposed to
the uncertainty associated with a jury verdict. In addition,
the Court has performed its own review of cases involving
facts similar to those at issue here and finds
Plaintiff's net recovery of $20, 000 to be fair and
reasonable under the circumstances. See, e.g.,
L.M. v. Kern High Sch. Dist., No.
17-cv-1123-DAD-JLT, 2019 WL 1099983, at *2-*3 (E.D. Cal. Mar.
8, 2019) (finding plaintiff's net recovery of $15, 086.76
out of a total settlement amount of $50, 000, for a
minor's claim that his broken right femur was due to the
school's negligent supervision, to be fair and reasonable
because much time and expense was associated with litigating
the claim, and because medical treatment was successful and
further medical treatment was not anticipated); T.P. v.
United States, 10cv295-AJB-RBB, 2011 U.S. Dist. LEXIS
110897, at *2 (S.D. Cal. Sept. 28, 2011) (finding net
recovery of $8, 713.76 for a minor's FTCA claim arising
from being struck by a Federal Bureau of Investigations van,
which fractured his leg in two places and kept him in a cast
for seven weeks, to be fair and reasonable); T.B. v.
Chico Unified Sch. Dist., No. 2:07-cv-00926-GEB-CMK,
2010 WL 1032669, at *1-*2 (E.D. Cal. Mar. 19, 2010)
(approving net recovery of $16, 500 for a minor's claim
that he was subject to unnecessary force at school as fair
and reasonable); cf. D.C. v. Oakdale Joint
Unified Sch. Dist., No. 1:11-cv-1112-SAB, 2013 WL
275271, at *2 (E.D. Cal. Jan. 23, 2013) (finding net recovery
of $30, 000 for a minor's claims, arising from
both a lack of proper programs for disabled students
at the school and from spraining his ankle when ...