R.N. v. United States

          REPORT AND RECOMMENDATION FOR ORDER GRANTING MINOR'S COMPROMISE PETITION [ECF NO. 42]

          HONORABLE ALLISON H. GODDARD UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. BACKGROUND

         Plaintiff 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.

         Specifically, 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.

         On 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.

         II. LEGAL STANDARD

         It is 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).^[1]

         The 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^[2]-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.

         III. DISCUSSION

         After 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.

         A. Proposed Settlement

         This 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, 36.

         The 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 ...