United States District Court, D. New Mexico
ORDER GRANTING MOTION FOR APPROVAL OF
GREGORY B. WORMUTH, United States Magistrate Judge.
matter comes before the Court pursuant to Defendants'
Motion for Review and/or Approval of Settlement (doc.
15). The Court held a competency and fairness hearing on
the motion on January 18, 2018. Doc. 17. The Court
issued an oral ruling granting the motion at the close of the
hearing. Id. at 7. This Order memorializes that
ruling and provides the factual and legal basis therefor.
proceeding pro se, filed the underlying civil
litigation in state court on April 21, 2017. See doc.
1-2. In her Complaint, Plaintiff alleges the following
facts. She called for an ambulance due to continued pain and
an infection related to a serious dental procedure on April
10, 2017. Id. at 1. Officials from the Chaves County
Sheriff's Office and the Midway Fire Department in
Roswell responded to her call along with an ambulance from
Superior Ambulance, and an unidentified EMT forced her into
the ambulance. Id. at 1-2. Once she was in the
ambulance, one of the Superior Ambulance employees began
verbally harassing and assaulting her, and the driver refused
to bring her to her hospital of choice. Id. at 2-3.
Further, she alleges that the employee who forced her into
the ambulance has harassed her and slandered her for years,
but that the Sheriff's Office has refused to take her
reports of these incidences seriously. Id. at 3-5.
Generally, Plaintiff alleges that Defendants are involved in
a conspiracy to silence her by threatening to arrest her in
response to her attempts to obtain information on various
officials and to file reports relating to various incidents
of assault and/or harassment. See Id. Defendants
removed this action to federal court on May 16, 2017.
for Defendants informed the Court that the parties had
tentatively reached a settlement agreement on December 28,
2017, and that Defendants believed court approval of the
settlement may be necessary. Accordingly, the Court held a
telephonic status conference with the parties on January 10,
2018. Docs. 12, 14. During that conference, defense
counsel informed the Court that Plaintiff had been
adjudicated incompetent to stand trial in several state court
criminal cases. See doc. 14 at 2. These
adjudications of incompetence caused Defendants concern that
any settlement agreement with Plaintiff might be voidable on
the basis that she lacked competency to contract.
on the concerns raised by Defendants, the Court determined
that an in- person hearing was necessary to establish
Plaintiff's competency to contract and the fairness of
the proposed settlement agreement. Id. at 2-3.
Because the parties mutually desired to waive the appointment
of a guardian ad litem, the Court instructed Defendants to
file a detailed motion setting forth the terms of the
agreement and all pertinent factors bearing on the fairness
of the agreement. The motion was filed on January 12, 2018,
and the competency and fairness hearing took place on January
18, 2018. Docs. 15, 17.
considered the motion, the hearing testimony, and the
Court's own interactions with Plaintiff, the Court finds
that Plaintiff has the requisite mental capacity to sue and
to contract under New Mexico law, and appointment of a
guardian ad litem is therefore unnecessary to protect
Plaintiff's interests. Moreover, having independently
considered the relevant factors governing the fairness of
settlement agreements generally, the Court finds that the
settlement agreement is fair and reasonable. Therefore, the
agreement will be approved.
Appointment of a Guardian ad Litem under Rule 17(c) is not
noted above, Plaintiff is proceeding pro se. Once
defense counsel put the Court on notice that Plaintiff had
been adjudicated incompetent in a criminal proceeding, that
information triggered a duty of inquiry under Rule 17 to
determine whether Plaintiff has the requisite capacity to
bring suit in the first instance. See, e.g.,
Hudnall v. Sellner, 800 F.2d 377, 385 (4th Cir.
1986) (“[Rule 17(c)] does not indicate the basis upon
which a court determines the predicate fact that a party not
already legally adjudicated to be so, is presently
‘incompetent.' Obviously if there has been a legal
adjudication of incompetence and that is brought to the
court's attention, the Rule's provision is brought
into play.”); Powell v. Symons, 680 F.3d 301,
308 (3d Cir. 2012); Ferelli v. River Manor Health Care
Center, 323 F.3d 196, 201 (2d Cir. 2003); Dangim v.
FNU LNU, USA Law Enf't, No. CV 16-0812 JB/SCY, 2017
WL 3149359, at *2-*3 (D.N.M. June 2, 2017). Rule 17(c)(2)
provides that an incompetent person who does not have a duly
appointed representative may sue by a next friend or by a
guardian ad litem, and that the Court “must appoint a
guardian ad litem-or issue another appropriate order-to
protect a[n] . . . incompetent person who is unrepresented in
an action.” Fed.R.Civ.P. 17(c).
17(c) flows from the general duty of the court to protect the
interests of infants and incompetents in cases before the
court.” Garrick v. Weaver, 888 F.2d 687, 693
(10th Cir. 1989). However, “[t]he decision as to
whether or not to appoint such a special representative rests
with the sound discretion of the district court and will not
be disturbed unless there has been an abuse of its
authority.” Developmental Disabilities Advocacy
Ctr., Inc. v. Melton, 689 F.2d 281, 285 (1st Cir. 1982)
(citing Hoffert v. General Motors Corp., 656 F.2d
161, 164 (5th Cir. 1981)). See also Foe v.
Vanderhoof, 389 F.Supp. 947, 957 (D. Colo. 1975)
(“The suggestion in Rule 17(c) that a guardian be
appointed to represent an infant or incompetent in court is
not mandatory”). The Court finds that appointment of a
guardian ad litem is not necessary here for several reasons.
both parties wish to waive the appointment of a guardian ad
litem. See doc. 14 at 3. Plaintiff in particular
desired a quick approval of the proposed settlement due to
the exigent circumstance that the well providing running
water to her home needed to be replaced. Id.;
doc. 17 at 6. Second, as just noted, while Rule 17
creates an obligation of the Court to protect minors and
incompetent litigants, the rule explicitly allows the Court
to “issue another appropriate order” to fulfill
such obligation; appointment of a guardian ad litem is not
required. Fed.R.Civ.P. 17(c). See also Gardner by Gardner
v. Parson, 874 F.2d 131, 140 (3d Cir. 1989) (explaining
that the court may decline to appoint a guardian ad litem if
the interests of the litigant in question- there, a
child-“may be protected in an alternative manner[,
]” but noting that “the cases and commentators
appear unanimous in interpreting the [“another
appropriate order”] provision of Rule 17(c) to mean
that, if a court declines to appoint a guardian, it must act
in some other way to protect the [litigant's] interests
in the litigation.”).
and most significantly, at the time of the status conference,
Plaintiff had thus far conducted herself competently before
the Court, and had given no indication that she was unable to
understand the proceedings or the terms of the proposed
settlement agreement. In the context of federal civil
litigation, the relevant inquiry regarding a litigant's
competency to sue under Rule 17 is whether she is
“mentally competent to understand the nature and effect
of the litigation she has instituted.” Bodnar v.
Bodnar, 441 F.2d 1103, 1104 (5th Cir. 1971) (per
curiam), cert denied, 404 U.S. 913 (1971);
Donnelly v. Parker, 486 F.2d 402, 407 (D.C. Cir.
1973) (stating that Rule 17(c) may require an inquiry into
the plaintiff's “capacity to understand the meaning
and effect of the litigation being prosecuted in her
name.”). Plaintiff's conduct before the Court
indicated that she fully understood both the nature and
effect of the actions she had brought, and was capable of
understanding the nature and effect of the settlement
agreement. Indeed, Plaintiff initiated settlement
negotiations by approaching defense counsel with a monetary
offer, and she ably and intelligently questioned a particular
condition suggested by defense counsel as part of the
agreement. See doc. 14 at 1-2; see also doc.
15-2 at 2, 5.
being sensitive to Plaintiff's exigent circumstance and
inclined to agree with Plaintiff that her ability to
intelligently pursue her claims evinced her competence, the
Court determined that an in-person hearing to evaluate
Plaintiff's competence along with an independent
evaluation of the fairness of the settlement sufficed to
satisfy its duty under Rule 17. See Allen v.
Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005)
(“[W]hen a substantial question exists regarding the
mental competence of a party proceeding pro se, the proper
procedure is for the district court to conduct a hearing to
determine competence, so a guardian ad litem can be
appointed, if necessary.”). See also Eagan by Keith
v. Jackson, 855 F.Supp. 765, 782-83 (E.D. Pa. 1994) (in
the settlement approval context, declining to appoint a
guardian ad litem despite conflict of interest between
incompetent litigant and representative who brought suit,
where the litigant was in need of money and the court had
sufficient familiarity with the law and facts of the case to
allow it to independently assess the merits of the settlement
following reasons, the testimony presented at the competency
and fairness hearing persuades the Court that Plaintiff is
competent to sue in her own name, and that appointment of a
guardian ad litem is therefore unnecessary to protect
Plaintiff's interests in the litigation. First, Plaintiff
testified that she regularly sees a psychiatrist for
treatment for post-traumatic stress disorder (PTSD), but she
has never been diagnosed with a mental illness that affects
her cognitive functioning. Doc. 17 at 3. She is
prescribed medical marijuana and Wellbutrin for PTSD, to aid
her in quitting smoking, and to stabilize her mood.
Id. However, she was not under the influence of any
mood-altering drugs during the hearing. Id.
Plaintiff's testimony and other documentation support a
finding that the adjudication of Plaintiff's incompetence
in various criminal cases in state magistrate court was
primarily a matter of administrative formality, and that such
adjudication is therefore not dispositive here. Documents
provided to the Court by defense counsel reflect that as to
the incompetence finding that applied to two of the six
criminal cases- M-7-MR-2017-00359 and
M-7-MR-2017-00398-Plaintiff simply stipulated to incompetence
without undergoing any underlying psychological evaluation.
The incompetence finding that applied to the remaining four
cases resulted from a psychological evaluation performed by
Susan B. Cave, Ph.D. However, Plaintiff described that this
evaluation lasted approximately twenty minutes and involved
questions regarding the court process and basic information
such as the identity of the ...