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Jones v. County of Westchester

United States District Court, S.D. New York

April 27, 2017

LATONIA JONES, individually and on behalf of her minor child, DJ, Plaintiff,
v.
COUNTY OF WESTCHESTER, ROSA HAZOURY, ELKE KNUDSEN, and LISA COLIN, ESQ., Defendants.

          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge

         Plaintiff, 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.

         Before 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, [1] the Court adopts the conclusions of the R&R in its entirety.

         STANDARD OF REVIEW

         A 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)).

         To the 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 omitted).

         APPOINTMENT OF A REPRESENTATIVE

         It is 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).

         The 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.

         Notably, 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 ...


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