United States District Court, S.D. New York
LATONIA JONES, individually and on behalf of her minor child, DJ, Plaintiff,
COUNTY OF WESTCHESTER, ROSA HAZOURY, ELKE KNUDSEN, and LISA COLIN, ESQ., Defendants.
OPINION & ORDER
S. ROMAN, United States District Judge
Latonia Jones ("Jones"), individually and on behalf
of her minor child D.J., asserts claims against the County of
Westchester (the "County"); Rosa Hazoury and Elke
Knudsen, employees of Westchester County (together with the
County, the "County Defendants"); and Lisa Colin,
Esq. ("Colin"), arising out of D.J.'s removal
from the custody of her biological mother, Jones.
the Court are Defendants' objections to the Order issued
by Honorable Magistrate Judge Judith McCarthy ("MJ
McCarthy"), (hereinafter referred to as a "Report
and Recommendation" or "R&R") substituting
Jones with Patricia McDonnel-Megahey ("Megahey") as
the representative or next friend of D.J. for the purpose of
litigating all claims asserted on behalf of the minor. For
the following reasons, upon conducting de novo
review,  the Court adopts the conclusions of the
R&R in its entirety.
magistrate judge may “hear a pretrial matter [that is]
dispositive of a claim or defense” if so designated by
a district court. Fed.R.Civ.P. 72(b)(1); accord 28 U.S.C.
§636(b)(1). In such a case, the magistrate judge
“must enter a recommended disposition, including, if
appropriate, proposed findings of fact.” Fed.R.Civ.P.
72(b)(1); accord 28 U.S.C. §636(b)(1). Where a
magistrate judge issues an R&R,
[w]ithin fourteen days after being served with a copy, any
party may serve and file written objections to such proposed
findings or recommendations as provided by rules of court. A
judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
28 U.S.C. §636(b); accord Fed. R. Civ. P.
72(b)(2), (3). However, a district court “may adopt
those portions of the Report to which no objections have been
made and which are not facially erroneous.” Wilds
v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 170
(S.D.N.Y. 2003) (quoting La Torres v. Walker, 216
F.Supp.2d 157, 159 (S.D.N.Y. 2000)).
extent a particularized objection to an R&R is raised,
those parts must be reviewed de novo. 28 U.S.C.
636(b)(1); Fed.R.Civ.P. 72(b); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). In a de
novo review, the district court must consider the
“[r]eport, the record, applicable legal authorities,
along with Plaintiff's and Defendant's objections and
replies.” Diaz v. Girdich, No.
04-cv-5061, 2007 WL 187677, at *2 (S.D.N.Y. Jan. 23, 2007)
(internal quotation marks omitted). But to the extent only
generalized and conclusory objections are raised or a party
merely reiterates their original arguments, the district
court will review the R&R strictly for clear error.
Harris v. Burge, No. 04-cv-5066, 2008 WL 772568, at
*18 (S.D.N.Y. Mar. 25, 2008). The distinction turns on
whether a party's objections are “clearly aimed at
particular findings in the magistrate's proposal”
or are merely an attempt at taking a “‘second
bite at the apple' by simply re-litigating a prior
argument.” Singleton v. Davis, No. 03-cv-1446,
at 2007 WL 152136, at *2 (S.D.N.Y. Jan. 18, 2007) (citation
OF A REPRESENTATIVE
well settled that a minor or incompetent lacks the legal
capacity to sue and any action seeking to vindicate a right
on their behalf must be commenced in the name of a legal
guardian, representative or similar fiduciary. Fed.R.Civ.P.
17(c); Berrios v. N.Y. City Hous. Auth., 564 F.3d
130, 134 (2d Cir. 2009). When a minor or incompetent's
authorized representative is unable or unwilling to serve, or
has an interest that conflicts with that of the minor, the
court may appoint a guardian (commonly referred to as a
guardian ad litem) or next friend as its representative for
the purpose of prosecuting the claims. Fed.R.Civ.P. 17(c).
Generally, a party seeking the appointment of a guardian ad
litem or next friend for a minor must demonstrate by a
preponderance of the evidence that the individual's
condition impedes their ability to protect her rights.
See Bowen v. Rubin, 213 F.Supp.2d 220 (E.D.N.Y.
2001) (citing CPLR § 1201).
procedure for the appointment of guardians or next of friend
is governed by Fed.R.Civ.P. 17(c), which provides:
[w]henever an infant or incompetent person has a
representative, such as a general guardian, committee,
conservator, or other like fiduciary, the representative may
sue or defend on behalf of the infant or incompetent person.
An infant 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 shall appoint a guardian ad
litem [or next of friend] for an infant or incompetent person
not otherwise represented in an action or shall make such
other order as it deems proper for the protection of the
infant or incompetent person.
Rule 17(c) provides no special qualifications for serving as
a minor's representative. A close relationship or blood
tie need not exist between the “proposed next of
friend” or representative and the minor.
Bowen, 213 F.Supp.2d at 226. When appointing a
representative, the court should consider whether the
proposed individual is acting in good faith, has an interest
in the welfare of the individual, is motivated by a sincere
desire to seek justice on behalf of the minor and has the
ability to prosecute the claims asserted. See Ad Hoc
Comm. of Concerned Teachers on Behalf of Minor & Under
Age Students Attending Greenburgh Eleven Union Free Sch.
Dist. v. Greenburgh No. 11 Union Free Sch. Dist., 873
F.2d 25, 31 ...