LR 17 – Claims Involving Protected Persons Under Fed. R. Civ. P. 17(c)

Details

(See Fed. R. Civ. P. 17(c))

LR 17 – Claims Involving Protected Persons Under Fed. R. Civ. P. 17(c)

(a) Representation

At the commencement of an action or upon initial appearance in defense of an action involving a party who is a minor or other person in need of protection within the meaning of Fed. R. Civ. P. 17(c) ("protected person"), the attorney or person commencing or defending the action on behalf of the protected person must attach as an exhibit to the complaint, petition, notice of removal, or responsive pleading a copy of the order or judgment of appointment for protected persons appearing through a fiduciary identified in Fed. R. Civ. P. 17(c)(1).  For all other protected persons, the person or attorney commencing the action or defending the action on behalf of the protected person must, at the earliest opportunity, file a motion for appointment of a suitable guardian ad litem to act in the protected person's interests.  Upon a showing of good cause, the assigned judge may dispense with the appointment of a guardian ad litem.

(b) Qualifications of Guardian Ad Litem

A guardian ad litem must be suitable to serve as a fiduciary.  Suitability factors include, but are not limited to, the following:

  1. The relationship, if any, of the proposed guardian ad litem to the protected person;
  2. The existence or potential for conflict of interest between the proposed guardian ad litem and the protected person;
  3. Whether the guardian ad litem is serving for more than one protected person in litigation against the same defendant(s);
  4. The qualifications and relevant experience of the guardian ad litem;
  5. Any criminal record of the guardian ad litem; and
  6. For financial claims, any significant history of unpaid debt or bankruptcy.

(c) Functions of Guardian Ad Litem or Other Fiduciary

A fiduciary acting on behalf of a protected person must:

  1. Retain, or ratify the retention of, qualified counsel to pursue the protected person's claim(s) or defense(s);
  2. Be sufficiently apprised of the facts of the case to reasonably make decisions on behalf of the protected person with the advice of counsel;
  3. Maintain communication with counsel and make informed decisions based on the advice of counsel;
  4. Monitor the progression of the litigation, including reviewing material filings;
  5. Evaluate proposed settlement offers and offers of judgment;
  6. When appropriate, seek the input of the protected person, the protected person's immediate family and/or custodians and/or obtain a second opinion from other counsel before accepting or rejecting the offer;
  7. Approve the voluntary disposition of the case; and
  8. For any disposition of the case that will result in the payment of money or transfer of property to the protected person, ensure a conservatorship, trust, or other protective measure is in place for the money or property.

(d) Procedure for Settlement or Compromise

No settlement offer, offer of judgment, or other compromise may be rejected or conditionally accepted without the informed prior authorization of the protected person's fiduciary and, if the fiduciary has been appointed under state law, with such court authorization as may be required under that law.  Any settlement offer, offer of judgment, or other compromise must be communicated to the protected person when such communication can reasonably occur or when notice is required under applicable law.  A conditionally accepted offer, offer of judgment, or other compromise is not effective or enforceable until approved by the assigned judge.  Approval of a settlement, offer of judgment, or other compromise includes the analysis and approval of the proposed disposition of the gross settlement proceeds or property, including but not limited to approval of the reasonableness of proposed attorney fees, fiduciary fees, costs, expenses, lien resolutions, and structuring of a portion or all of the net settlement proceeds.  Upon a showing that the state court administering the protected person's conservatorship or guardianship of the estate is in a better position to evaluate the settlement, offer of judgment, or other compromise under the totality of the protected person's circumstances, the assigned judge may by order allow the protected person to petition the state court for review and approval of the settlement, offer of judgment, or other compromise, and to submit the resulting state court order or judgment to the assigned judge for consideration.

(e) Discretion of the Court

Nothing in this rule forecloses the assigned judge from taking any other action necessary to protect the interests of the protected person, including appointment of a suitable guardian ad litem in addition to an existing fiduciary.  

Amendment History to LR 17
June 1, 2023
LR 17 New Rule.