United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. TRAUGER UNITED STATES DISTRICT JUDGE.
before the court is Plaintiff's Motion for Review of
Magistrate's Order (Docket No. 84). Defendants have filed
a Response (Docket No. 93), and Plaintiff has filed a Reply
(Docket No. 99). Plaintiff seeks review of the Magistrate
Judge's Order (Docket No. 81), which granted Defendant
Williamson County's Motion for Appointment of a Guardian
Ad Litem for the minor Plaintiff, J.H., and appointed
attorney Matt Potempa to serve in that role.
to Rule 72(a) of the Federal Rules of Civil Procedure, the
court may reverse or modify the ruling of the Magistrate
Judge only if it is clearly erroneous or contrary to law. For
the reasons set forth below, the court finds that the ruling
of the Magistrate Judge is neither clearly erroneous nor
contrary to law, and the Order of the Magistrate Judge is
action was filed by Betty Harris as next friend/mother of
J.H., a minor. The Complaint alleges that, while being housed
in the Williamson County Juvenile Detention Center, J.H. was
sexually assaulted by an employee of Williamson County. The
Complaint also alleges that J.H. was unlawfully placed in
Williamson County has asserted that a potential conflict of
interest exists between J.H. and his next friend/mother,
Betty Harris. Defendant argues that the appointment of an
independent guardian ad litem is appropriate because certain
damages sought in this action are personal to Ms. Harris and
not recoverable by J.H., thereby creating a conflict of
interest. Defendant also claims that J.H. was never informed
of a settlement offer made by Williamson County,
demonstrating further the need for a guardian ad litem to
represent J.H.'s interests. On the other hand, Plaintiff
argues that Ms. Harris, as next friend and mother of J.H., is
protecting the best interests of the child and that no
further representation for J.H. is needed.
of the Federal Rules of Civil Procedure provides:
A minor or 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). The decision to appoint a guardian ad
litem rests within the sound discretion of the district
court. M.F. v. Malott, 2012 WL 1950274 at * 4 (S.D.
Ohio May 30, 2012).
parties do not dispute that J.H. does not have a “duly
appointed representative” under Tennessee
Tennessee Rule of Civil Procedure 17.03 makes clear that a
next friend is distinct from a duly appointed representative.
Even if Ms. Harris were a duly appointed representative in
this case, the court may appoint a guardian ad litem where
the interests of the appointed representative conflict with,
or are antagonistic to, the minor person. M.F., 2012
WL 1950274 at * 4; 6A Charles Alan Wright, Arthur R. Miller
and Mary Kay Kane, Federal Practice and Procedure
§ 1570 (3d ed. April 2016 Update).
although she is not a party to the lawsuit, Betty Harris has
claimed damages personal to her and not recoverable by J.H.
For example, in her interrogatory answers, Ms. Harris stated
that she was claiming damages for lost business revenues,
home foreclosure, property tax penalties, and moving costs
and eviction. In deposition testimony, she expressed an
expectation of recovering losses personal to her. Ms.
Harris's potential conflict and financial interest in the
outcome of this litigation make the Magistrate Judge's
Order appointing a guardian ad litem appropriate and neither
clearly erroneous nor contrary to law.
points out that J.H. testified that no one had informed him
that a settlement offer had been made or the value of that
offer. Plaintiff's counsel insists that Defendant is
using this argument to force disclosure of attorney-client
privileged communications. This deposition testimony of J.H.,
however, was not objected to by counsel, and there is no
evidence that his statement opens the door to disclosure of
privileged information. In any event, any failure to inform
J.H. about settlement discussions is not the only reason a
guardian ad litem is needed in this case.
contends that appointing a guardian ad litem would subvert
the role of Plaintiff's attorney in this case. To the
contrary, appointing a guardian ad litem allows
Plaintiff's counsel to continue to represent both J.H.
and his mother in spite of the potential conflicts in their
interests. The duties of a lawyer for a party and the duties
of a guardian ad litem are different. McCaslin v.
Radcliff, 168 F.R.D. 249, 256 (Neb. 1996); Keisling
v. Keisling, 196 S.W. 3d. 703, 729 (Tenn. Ct. App.
2005). A guardian ad litem is not appointed to serve as
counsel, but to act for the minor, with authority to engage
counsel, file suit, and to prosecute, control and direct the
litigation. Noe v. True, 507 F.2d 9, 11-12
(6th Cir. 1974). The purpose of the guardian ad
litem is to protect the interests of the minor or incompetent
person with full responsibility to assist the court to secure
a just, speedy and inexpensive determination of the action.
also argues that appointing a guardian ad litem is contrary
to the interests of justice because of J.H.'s fragile
mental health condition. The Magistrate Judge expressly
considered this factor and found no reason to doubt that the
appointed guardian ad litem will be mindful of J.H.'s
circumstances. Plaintiff has submitted an Affidavit (Docket
No. 84-4) from one of J.H.'s mental health treating
providers, Glynn Dilbeck, who states that assigning a
guardian ad litem for J.H. would create an unacceptable and
intolerable risk of safety and psychological setback for
contrary, as noted, the guardian ad litem's sole purpose
is to protect the interests of the child. There is no
evidence before this court that the guardian ad litem will
not be mindful of J.H.'s circumstances or will not use
sound discretion in developing a relationship with J.H.,
including working with those with whom J.H. has already
established trust. As the Magistrate Judge stated, the court
also expects J.H.'s next ...