     Case: 14-30095      Document: 00512818316         Page: 1    Date Filed: 10/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                   FILED
                                                                              October 29, 2014
                                      No. 14-30095
                                                                                Lyle W. Cayce
                                                                                     Clerk
TOMMIE RICE, Next Friend on behalf of Minors CIR and GMR; PHYLLIS
RICE, on behalf of minors CIR and GMR,

                                                 Plaintiffs-Appellees
v.

CORNERSTONE HOSPITAL OF WEST MONROE, L.L.C.,

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:13-CV-362


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       In this interlocutory appeal, Defendant Cornerstone Hospital of West
Monroe, L.L.C. appeals from the district court’s order permitting Tommie Rice
to pursue wrongful death claims as next friend of his grandchildren, minors
CIR and GMR. Cornerstone’s primary argument is that the appointment of
Rice as next friend was inappropriate because the mother of the children is the
only proper party to sue on the children’s behalf, but she has elected not to join


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 14-30095
the suit as a party. We conclude that the district court acted properly under
the circumstances to protect the interests of the children, and we therefore
AFFIRM.
                                          I.
      In 2007, Joshua Rice was seriously injured in a car accident. Over the
next several years, he received treatment at multiple facilities, including
Defendant Cornerstone Hospital of West Monroe, where he was a patient from
December 2011 to January 2012.        During that treatment, Cornerstone’s
alleged negligence caused Joshua to suffer a hip fracture, which was not
discovered until after he was transferred to another hospital for an organ
transplant. The injury caused by Cornerstone allegedly prevented Joshua
from receiving the transplant, and he died in May 2012. Joshua had been
married to Candice Rousso, whom he divorced in 2008, and the couple had two
minor children, CIR and GMR.
      In January 2013, Joshua’s parents, Tommie and Phyllis Rice, filed the
instant wrongful death suit in state court against Cornerstone, purportedly as
next friends of their grandchildren. Cornerstone removed the action to federal
court and moved to dismiss on the ground that the court lacked subject matter
jurisdiction because the Rices lacked standing to file suit on behalf of the
minors. Cornerstone argued that Rousso, as the children’s mother, was the
proper person to pursue the suit, and that she should either be joined or the
case should be dismissed. In opposition to the motion, the Rices submitted
copies of state court orders appointing Tommie as tutor ad hoc and Phyllis as
under-tutrix ad hoc for the minor children.
      Addressing the issue as one of capacity to sue rather than standing, the
district court determined that under Louisiana law Candice Rousso, as the
surviving parent, held the exclusive tutorship of the minor children, and that
Tommie and Phyllis Rice were therefore not the proper parties to file suit on
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                                 No. 14-30095
their behalf. Although the state court purported to appoint the Rices as tutor
and under-tutrix, the district court held that the appointment was an absolute
nullity under state law because there was no indication that Rousso had ever
received notice of the tutorship proceeding. See In re Tutorship of Cardenas,
38 So. 3d 1284, 1286-87 (La. Ct. App. 2010). The court therefore dismissed the
Rices from the case because they lacked capacity to prosecute the suit on behalf
of the minors. Rather than dismiss the whole suit, however, the court also
ordered that notice of the case be sent to Rousso, who lived in Arkansas.
Rousso was to appear and join the case as the proper party plaintiff on behalf
of the children, or show cause in writing why Tommie Rice, or some other
qualified person, should not be appointed as next friend of the minors to
prosecute the matter.
      Rousso did neither, remaining silent in the face of the court’s notice of
the suit. Cornerstone moved for summary judgment, which the district court
denied, and also moved for reconsideration, which was also denied.           The
district court sua sponte appointed Tommie Rice as next friend or guardian ad
litem to prosecute the suit on behalf of the minors. The district court further
certified its orders for interlocutory appeal pursuant to 28 U.S.C. § 1292(b),
and we granted Cornerstone permission to appeal.
                                           II.
      Cornerstone argues that the district court erred by appointing Tommie
Rice as next friend of the minor children because the children are represented
by their mother as their natural tutor, and she declined to join in the case as a
party plaintiff. It contends that the district court thereby usurped the mother’s
parental authority over her children. We are unpersuaded.
      “An unemancipated minor has no legal capacity; he may neither enforce
nor relinquish rights and may only act through his parents, if both are alive
and not legally separated or divorced, or through a court-designated tutor or
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tutrix.” Johnson v. Ford Motor Co., 707 F.2d 189, 193 (5th Cir. 1983). “The
issue of capacity to sue on behalf of an infant is governed by Fed. R. Civ. P.
17(b) and (c).” Chrissy F. by Medley v. Miss. Dep’t of Pub. Welfare, 883 F.2d 25,
26 (5th Cir. 1989). Pursuant to this rule, “when an individual is acting in a
representative capacity, their capacity to sue shall be determined by the law of
the state in which the district court is held.” Id. As noted above, the district
court initially determined that Tommie and Phyllis Rice lacked the capacity to
sue and were not the proper parties to prosecute this action on behalf of the
minors because, under Louisiana law, Candice Rousso, the minors’ mother,
retained the exclusive tutorship of the children. See La. Civ. Code art. 250; La.
Code Civ. Proc. art. 4061.1. No party challenges this ruling on appeal, and we
are concerned only with whether the district court could properly appoint a
next friend or guardian ad litem notwithstanding the mother’s tutorship. 1
       The appointment of a next friend or guardian ad litem to act on behalf of
a minor is a procedural question governed by Rule 17(c). Roberts v. Ohio Cas.
Ins. Co., 256 F.2d 35, 38 (5th Cir. 1958). Rule 17(c) requires the court to
appoint a guardian ad litem for a minor who is unrepresented. See Rule
17(c)(2). Cornerstone contends that the minors here were not unrepresented
because of the mother, Rousso, and that the district court failed to determine
the appropriateness of substituting a next friend for Rousso, or the
qualifications of Tommie Rice to prosecute the case on the minors’ behalf.
       As a general matter, “a federal court cannot appoint a guardian ad litem
in an action in which the infant or incompetent already is represented by
someone who is considered appropriate under the law of the forum state.” 6A



       1 We use the terms “next friend” and “guardian ad litem” interchangeably, as the
technical differences between them have been relegated to history, and the powers and duties
of the positions are identical. See Adelman by Adelman v. Graves, 747 F.2d 986, 988 n.4 (5th
Cir. 1984).
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                                  No. 14-30095
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1570, p. 665 (2010); see also T.W. & M.W. by Enk v. Brophy, 124
F.3d 893, 895-96 (7th Cir. 1997). It is well recognized, however, that “Rule
17(c) empowers a federal court to appoint a next friend if the infant’s legal
representative is unable or refuses to act.” Susan R.M. by Charles L.M. v. Ne.
Indep. Sch. Dist., 818 F.2d 455, 458 (5th Cir. 1987); see also Ad Hoc Comm. of
Concerned Teachers v. Greenburgh No. 11 Union Free Sch. Dist., 873 F.2d 25,
29 (2d Cir. 1989) (Rule 17(c) “gives a federal court power to authorize someone
other than a lawful representative to sue on behalf of an infant or incompetent
person where that representative is unable, unwilling or refuses to act or has
interests which conflict with those of the infant or incompetent.”).
      In this case, it is undisputed that the minors have standing to assert
their claims for wrongful death; however, they lack the legal capacity to do so.
Although the minors’ mother was given notice of the suit and an opportunity
to join the suit or express objection to the appointment of a next friend for
purposes of the litigation, she did not respond. Under Cornerstone’s view, this
silence alone would indicate disapproval of the suit and defeat the claims. But
we have recognized that “Louisiana courts have long been reluctant to accept
the extinction of minors’ substantive and procedural claims by default or
waiver.” Johnson, 707 F.2d at 194. It was reasonable, therefore, for the district
court to conclude that the mother is unable, unwilling, or refuses to act. The
mother’s inability or unwillingness to pursue the claims on the minors’ behalf,
as reflected by her silence, has essentially left the children unrepresented.
Under these circumstances, it was especially important for the district court to
exercise oversight of the minors’ interests and to be protective of their claims.
See id. Rather than usurping any interests of the mother, who has failed to
object to the suit or indicate her view one way or the other, the district court’s


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action merely preserved potential claims possessed by the minors. 2 We express
no view on whether our holding would apply to a case in which a parent
expressly objects to the filing of a lawsuit on her child’s behalf. See Troxel v.
Granville, 530 U.S. 57, 72-73, 120 S. Ct. 2054, 2064 (2000) (plurality opinion)
(“[T]he Due Process Clause does not permit a State to infringe on the
fundamental right of parents to make child rearing decisions simply because a
state judge believes a ‘better’ decision could be made.”).
       Cornerstone complains that the district court did not consider the
qualifications of Tommie Rice to act as next friend, but “[i]t [was] within the
district court’s discretion to determine [the minors’] need for representation
and who may best fill that need.” Chrissy F., 883 F.2d at 27. We perceive no
abuse of discretion in the district court’s appointment of the minors’ paternal
grandfather as their next friend.
       AFFIRMED.




       2 It should go without saying that we express no opinion on the merits of the claims in
this interlocutory appeal.
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