M. et al v. Drycreek Joint Elemtnary School District et al
Filing
7
ORDER signed by Judge Garland E. Burrell, Jr on 5/6/10: Kevin Marchese shall clarify in a filing whether he is the attorney of record for plaintiff G.M. If Kevin Marchese is not G.M.'s attorney, then movants shall explain why G.M. should not be dismissed as a plaintiff from this case since he is not represented by counsel. This filing is due no later than May 20, 2010. (Kaminski, H)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kevin and Lyndi Marchese's application does not comply with Federal Rule of Civil Procedure 5.2(a)(3) and Local Rule 140(a)(i), which require that only a minor plaintiff's initials be used in any electronic or paper filing. All future filings in this case shall comply with these rules. The caption of this case is amended as reflected above. The application also requests that Kevin and Lyndi Marchese be permitted to use the CM/ECF system and electronically file documents during the pendency of this action. This request, however, should be directed to the Clerk's Office. 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
G.M., a minor, by and through his Guardian ad Litem, KEVIN MARCHESE, an individual, and LYNDI MARCHESE, an individual,
) ) ) ) ) Plaintiff, ) ) v. ) ) DRYCREEK JOINT ELEMENTARY SCHOOL ) DISTRICT; CALIFORNIA DEPARTMENT OF ) EDUCATION; and JACK O'CONNELL, in ) his official capacity as STATE ) SUPERINTENDENT OF PUBLIC ) INSTRUCTION FOR THE STATE OF ) CALIFORNIA, ) ) Defendants. ) )
2:10-cv-00944-GEB-GGH ORDER CONCERNING G.M.'S LEGAL REPRESENTATION
K e v i n and Lyndi Marchese filed an ex parte motion on A p r i l 22, 2010, in which they seek to be appointed Guardians ad L i t e m for their son and minor plaintiff G.M. in this action. 1 T h e movants state in their motion that they are:
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P r o Se litigants who have brought action i n d i v i d u a l l y and on behalf of their minor child for IDEA due process and Section 504/Rehabilitation Act 1973 claims, which c l a i m s parents are permitted to bring actions i n their own right and on behalf of their c h i l d . Parents operate as a team with respect t o this due process de-novo/review and claims. ( M o t . to Appoint Guardian ad Litem 2:5-9.) Movants, however,
a l s o state that "Father of minor is a[n] attorney licensed to p r a c t i c e in this Court (SBN 148931); [but], he files this action a s a Pro Se Parent." (Id. 2:9-10.)
It is unclear from this filing in what capacity Kevin M a r c h e s e seeks to represent his son and plaintiff G.M. While
K e v i n Marchese is an attorney and the complaint seeks to recover a t t o r n e y s ' fees, movants also state that they are "Pro Se l i t i g a n t s " and "Pro Se Parent[s]." However, "a parent or
g u a r d i a n cannot bring an action on behalf of a minor child w i t h o u t retaining a lawyer." F . 3 d 874, 877 (9th Cir. 1997). Johns v. County of San Diego, 114 Therefore, Lyndi Marchese
c l e a r l y lacks the authority to file a complaint on behalf of G.M. Due to his status as an attorney, Kevin Marchese may have The issue of G.M.'s legal representation shall
s u c h authority.
b e resolved before reaching movants' ex parte motion to be a p p o i n t e d Guardians ad Litem for G.M. 28 U.S.C. § 1654 prescribes: "In all courts of the U n i t e d States the parties may plead and conduct their own cases p e r s o n a l l y or by counsel . . . ." "While this provision allows
[ K e v i n Marchese] to prosecute his own actions in propria p e r s o n a , that right is personal to him, and absent some other s t a t u t o r y authorization, [Kevin Marchese] has no authority to 2
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p r o s e c u t e an action in federal court on behalf of" his son G.M. Stoner v. Santa Clara County Office of Educ.,502 F.3d 1116, 1126 ( 9 t h Cir. 2007); see also R.Y. v. Visalia Unified Sch. Dist., N o . CV-F-06-1407 OWW/DLB, 2008 WL 117981, at *1 (E.D. Cal. Jan. 1 0 , 2008) (finding that parents may not bring child's Individual W i t h Disabilities Education Act claim pro se). Therefore, Kevin Marchese shall clarify in a filing w h e t h e r he is the attorney of record for plaintiff G.M. 2 K e v i n Marchese is not G.M.'s attorney, then movants shall e x p l a i n why G.M. should not be dismissed as a plaintiff from t h i s case since he is not represented by counsel. i s due no later than May 20, 2010. Dated: May 6, 2010 This filing If
GARLAND E. BURRELL, JR. U n i t e d States District Judge
It should be noted, however, that the Ninth Circuit has cautioned against parent-attorney representation in this context, stating: "a d i s a b l e d child represented by his or her parent does not benefit f r o m the judgment of an independent third party. Indeed, the d a n g e r of inadequate representation is as great when an emotionally c h a r g e d parent represents his minor child as when the parent r e p r e s e n t s himself." Ford v. Long Beach Unified School Dist., 461 F . 3 d 1087, 1091 (9th Cir. 2006)(citation and quotations omitted). 3
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