United States District Court, D. New Jersey
REPORT & RECOMMENDATION
B. CLARK, III United States Magistrate Judge
MATTER comes before the Court sua sponte
based upon the Plaintiff's purported lack of standing to
prosecute this civil matter. Although not the subject of a
formal motion, the issue has been addressed by the parties
via a series of oral conferences and written submissions. By
letters dated January 30, 2017 and March 22, 2017,
see Dkt. Nos. 20 & 25, counsel for Defendant
Bergen Regional Medical Center first raised the question
regarding whether Plaintiff Joseph Dunsay, who has been
adjudged incompetent by a New Jersey Court and has a
Court-appointed guardian, has standing or capacity to bring
this action on his own behalf against Defendant. Eventually,
following inter alia two telephone conferences with
the Court and a letter from the Plaintiff outlining his
intentions for this case, the Court entered an Order
directing the parties to provide written submissions
concerning whether or not Plaintiff may proceed with this
matter pro se. See Dkt. No. 32. In
response, the Court received two letters from Defendant's
counsel, see Dkt. Nos. 34 & 36, and two letters
from the Plaintiff, see Dkt. Nos. 35 & 41,
stating their respective positions. Having considered the
parties' written submissions and all other relevant items
of record, for good cause shown and for the reasons set forth
herein, it is respectfully recommended that this matter be
dismissed for lack of standing.
Complaint, Plaintiff asserts a purported cause of action
against Defendant stemming from his claim that while being
treated by Defendant he was wrongly detained against his will
for an extended period of time. In its letter of January 30,
2017, Defendant notes that the Plaintiff was adjudged by the
Superior Court of New Jersey to be incompetent and that the
Superior Court appointed one Michael Farhi as Plaintiff's
guardian. See Dkt. No. 20. The Defendant attached to
its letter the Judgment of the Superior Court and the Letters
of Guardianship relating to the Plaintiff. See Dkt.
No. 20-1. The Plaintiff has never denied or challenged that
he has been adjudged incompetent or that Mr. Farhi has been
appointed his guardian.
September 28, 2017, the Court conducted a telephone
conference with the parties in which Mr. Farhi participated.
During that conference, Mr. Farhi made it clear to the Court
that he did not file nor did he intend to prosecute the
current action on behalf of the Plaintiff. See Dkt.
No. 33 (Transcript of Proceeding). Plaintiff has never
suggested that Mr. Farhi in any way approved or filed the
within action, but has instead merely requested that a
guardian ad litem be appointed to help him pursue
this matter. See Dkt. No. 30. The Court now
considers the question of whether the Plaintiff has standing
to file this Complaint.
capacity of parties to bring lawsuits in Federal Court is
addressed generally in Federal Rule of Civil Procedure 17.
With regard to persons adjudged to be incompetent, Rule 17(c)
provides as follows:
(c) Minor or Incompetent Person.
(1) With a Representative. The following
representatives may sue or defend on behalf of a minor or
an incompetent person:
(A) a general guardian;
(B) a committee;
(C) a conservator; or
(D) a like fiduciary.
(2) Without a Representative. A minor or
an incompetent person who does not have a duly appointed
representative may sue by a next friend or 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.
the foregoing Rule, the answer to the question regarding
whether Plaintiff has the standing or capacity to bring this
lawsuit seems straightforward. The Plaintiff has a
Court-appointed representative who has neither filed this
action nor indicated any intention to pursue it on
Plaintiff's behalf. Thus, under Rule 17(c)(1), which
appears clearly to be the operative portion of Rule 17 in
Plaintiff's case as he is an adjudged incompetent
“with a representative, ” the Plaintiff cannot
bring this action pro se. As a result, his Complaint
is subject to dismissal for lack of standing.
the foregoing, the Plaintiff may suggest 1) that because his
appointed guardian is not pursuing this action he is
effectively “without a representative, ” 2) that
his case should be therefore evaluated under Rule 17(c)(2),
and 3) that he should consequently be appointed a guardian
ad litem to help him pursue this action. As an
initial observation, such an argument flounders because Rule
17(c)(2) explicitly exempts from its coverage any incompetent
person who, like Plaintiff, has “a duly appointed
representative” to protect his or her interests. To the
extent that any such suggestion by Plaintiff were to gain
traction, however, Rule 17(c)(2) still provides that the
appointment of a guardian ad litem is not mandatory
and that any appropriate order from the Court will suffice.
See Foe v. Vanderhoof, 389 F.Supp. 949, 957 (D.
Colo. 1975). The Court believes that to read Rule 17(c)(2)
broadly to cover Plaintiff and then to appoint him a guardian
ad litem in this case would effectively constitute
an end run around the judgment of the state court that Mr.
Farhi is an adequate representative for Plaintiff for all
purposes. Simply put, if Plaintiff is dissatisfied with Mr.
Farhi's guardianship, he must challenge it in state
court. The Court will therefore recommend dismissal of
Plaintiff's current claims without prejudice in
order to preserve that possibility for the Plaintiff while at
the same time giving proper deference to the Superior Court
of New Jersey's role in the overall process.
dismissal of Plaintiff's Complaint without prejudice is
appropriate because plaintiff lacks the capacity or standing
to bring this lawsuit on his own and his duly-appointed
guardian has chosen not to pursue it.
reasons set forth above;
IS on this 15th day of December, 2017,
RECOMMENDED that this matter be
DISMISSED WITHOUT PREJUDICE for ...