United States District Court, D. New Jersey
HAE Y. PARK, Plaintiff,
UNITED STATES, Defendant.
WILLIAM J. MARTINI. U.S.D.J.
Hae Y. Park ("Plaintiff) brings this negligence action
for injuries she suffered after allegedly being struck by a
United States Postal Service ("USPS") vehicle. The
matter comes before the Court on Plaintiffs motion to appoint
a guardian ad litem ("GAL"). ECF No. 18. For the
reasons set forth below, the motion is technically DENIED.
However, the Court will APPOINT an investigatory GAL and HOLD
A HEARING before impowering the GAL to make decisions on
alleges that on December 10, 2015, a USPS truck struck the
car Plaintiff was "driving in Leonia, New Jersey. See
Compl., ECF No. 1. Due to the USPS driver's negligence,
she allegedly suffered severe injuries. Id.
Plaintiff filed suit against the United States, seeking
damages for her injuries. Id.
before the Court is Plaintiffs motion to appoint her husband,
Mr. Chul Son, as her GAL. Mot., ECF No. 18. The United States
"takes no position on Plaintiffs motion" but
reserves the right to refute allegations that Defendant
caused Plaintiffs diminished capacity and seek discovery
regarding Plaintiffs condition." Def. Ltr. (May 6,
2019), ECF No. 19.
FRCP 17(c), "an incompetent person who does not have a
duly appointed representative may sue by a next friend or by
a [GAL]. The court must appoint a [GAL] ... to protect a
minor or incompetent person who is unrepresented in an
action." FRCP 7(c)(2). To determine whether an
individual is competent, courts look to "the law of the
individual's domicile." FRCP 17(b)(1).
is a New Jersey domicile. Compl. ¶ 1. Under New Jersey
law, the standard applicable to determine competence depends
on the context of the inquiry. See N.J.R. 4:26-2. Here,
Plaintiff moved for a GAL. When the request is made by
motion, "the court may appoint a [GAL] for a minor or
alleged mentally incapacitated person if no petition has been
filed and either defaidt has been entered by the clerk or, in
a summary action brought pursuant to R. 4:67 or in a probate
action, 10 days have elapsed after service of the
order." N.J.R. 4:26-2(b)(3) (emphasis added). Neither of
those conditions are satisfied here, and thus appointment
pursuant to Plaintiffs motion would be inappropriate at this
"[t]he court may appoint a [GAL] for a minor or alleged
mentally incapacitated person on its own motion." N.J.R.
4:26-2(b)(4). "[I]n the absence of a contravening
standard in Rule 4:26-2(b), the trial court may appoint a GAL
for an allegedly mentally incapable adult for 'good
cause.'" See S.T. v. 1515 Broad St., LLC,
190 A.3d 1073, 1083 (N.J. App. Div. 2018).
If there is good cause to believe that the person lacks
sufficient mental capacity to make the decision(s) needed to
conduct the litigation, the court may appoint a GAL to serve
as an independent investigator, fact finder, and evaluator to
report back to the trial court whether the person has
sufficient mental capacity. No. higher standard should be
imposed because such an investigation aids the court in
determining if its intervention is needed to protect the
rights of the alleged mentally incapacitated person, but does
not itself deprive the person of the right of
self-determination. . ..
By contrast, a trial court's ruling whether to empower
the GAL to make the decision(s) needed in the litigation for
an allegedly mentally incapacitated person must be governed
by a higher standard because the ruling deprives the person
of the right of self-determination. . . . Accordingly, the
court must determine that the person is mentally incapable of
making the decision(s) needed in the litigation before the
court can entrust the GAL to make the decision(s). To ensure
that the person's right of self-determination is not
improperly overridden, the court must make that ruling by
clear and convincing evidence.
Id. at 1083-84 (citations omitted). Therefore, on
the Court's own motion, it will determine whether good
cause exists to appoint Mr. Son as an investigatory GAL. If
good cause exists, the Court will require Mr. Son to appear
for a hearing to determine which decisions he will be
empowered to make for Plaintiff.
Court has ample evidence to find good cause. For example, Dr.
Charlene Bang, a licensed psychologist that examined
Plaintiff, declared under penalty of perjury that Plaintiff
has "significant impairment in executive function."
Bang Decl. ¶9, ECF No. 18-5. "Executive function
represents a person's ability to plan, organize, initiate
and make responsible decisions. It is an essential criterion
pertaining to a person's ability to manage affairs of any
significant complexity, such as court proceedings."
Id. n. 1. Therefore, good cause exists to appoint a
GAL "to serve as an independent investigator, fact
finder, and evaluator to report back to the trial court
whether the person has sufficient mental capacity."
See S.T., 190 A.3d at 1083.
good cause exists to appoint Mr. Son as Plaintiffs
investigatory GAL, the Court is uncomfortable depriving
Plaintiff of her "right of self-determination"
exclusively based on written submissions. See Id. at
1084 (requiring clear and convincing evidence of incapacity
before giving GAL decision-making authority). Therefore, the