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Tarlton v. Town of Red Springs

United States District Court, E.D. North Carolina, Western Division

October 23, 2017

RAYMOND TARLTON, as guardian ad litem for HENRY LEE MCCOLLUM and J. DUANE GILLIAM, as guardian of the estate of LEON BROWN, Plaintiffs,



         This cause comes before the Court on a motion by the guardian ad litem for plaintiff McCollum to determine whether the representation agreement is valid and whether a conflict exists as well as a motion by counsel for plaintiffs to terminate the guardian ad litem appointed to represent the interests of plaintiff Henry Lee McCollum in this matter.


         As is relevant to the instant motion, the procedural background begins with a hearing held before the undersigned on May 5, 2017, wherein the issue of plaintiff Henry McCollum's competence to proceed for himself was raised. The case had been called for hearing for the Court to consider whether to approve a settlement agreement between plaintiffs and defendants associated with the Town of Red Springs (Town of Red Springs defendants); such hearing was necessary as plaintiff Leon Brown, who was found after a hearing before the Clerk of Cumberland County Superior Court to be incompetent, has proceeded in this matter since March 14, 2017, through a guardian, now the guardian of his estate, J. Duane Gilliam. The motion to approve the settlement filed by counsel for McCollum and Brown raised the issue of McCollum's competence to proceed in this matter. In the motion, plaintiffs contended that McCollum, although having previously tested as having a low intelligence quotient, had not been determined to be incompetent by any court and that Thomas J. Harbin, Ph.D., had evaluated McCollum for competence and had found McCollum competent to enter into the settlement with the Town of Red Springs defendants.

         Following the hearing, the Court denied without prejudice the motion to approve settlement and appointed a guardian ad litem to protect McCollum's interests, noting its concern regarding McCollum's competency and the mandate of Rule 17(c) that a court must appoint a guardian ad litem to protect a minor or incompetent person. [DE 204]. The Court appointed attorney Raymond Tarlton to serve as guardian ad litem for McCollum. Approximately eleven weeks later, prior to a hearing in this matter which had been scheduled on the pending summary judgment motions, Tarlton filed a motion requesting that the Court determine whether the representation agreement between McCollum and his counsel is valid and whether a conflict exists. Counsel for McCollum responded, as did the Town of Red Springs defendants, who did not take a position on the guardian's motion but responded to state their position that the settlement as negotiated is fair.

         On August 10, 2017, a hearing was again held before the undersigned. The Court heard testimony from McCollum, Dr. Thomas Harbin, and Ken Rose, an attorney who previously represented McCollum. The following day, the Court ordered McCollum's guardian ad litem to submit a proposed expert to evaluate McCollum for competence to proceed for himself in this matter. Tarlton proffered George Patrick Corvin, M.D., a forensic psychiatrist. Counsel for plaintiffs and the Town of Red Springs had previously proffered experts to render an opinion as to McCollum's competence.[1] After review of the experts submitted by the parties, the Court appointed Dr. Corvin to conduct an evaluation of McCollum and to offer an opinion regarding whether McCollum has the practical ability to manage his own affairs. Counsel for plaintiffs on August 15, 2017, filed a motion to terminate McCollum's guardian ad litem and to dispense with further competency testing.

         On September 12, 2017, Dr. Corvin filed his report and on September 14, 2017, counsel for plaintiffs filed objections to Dr. Corvin's report. It is in this posture that the case comes before the undersigned. The Court considers first whether, based on the evidence presented, the testimony received, and the evaluations submitted by the experts, McCollum is competent to proceed for himself in this matter. Second, the Court considers whether the representation agreement entered into by McCollum and counsel is invalid.


         I. Competency determination and motion to exclude guardian ad litem

         A. Applicable legal standards

         Rule 17(c) of the Federal Rules of Civil Procedure provides that a district court shall appoint a guardian ad litem for an incompetent person not otherwise represented or shall order otherwise for the protection of the incompetent person.

A guardian ad litem is appointed as a representative of the court to act for the [incompetent party] in the cause, with authority to engage counsel, file suit and to prosecute, control and direct the litigation. As an officer of the court the guardian ad litem has full responsibility to assist the court 'to secure the just, speedy and inexpensive determination' of the action.

Fong Sik Leung v. Dulles, 226 F.2d 74, 82 (9th Cir. 1955); see also Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281, 285 (4th Cir. 1979) (under North Carolina law, guardian ad litem is the court's officer appointed for the purpose of taking care of the infant's rights). A court may consider the appropriateness of appointment of a guardian ad litem sua sponte, Ferrelli v. River Manor Health Care Or., 323 F.3d 196, 203 (2d Cir. 2003), and the fact that a party determined to be incompetent is represented by counsel does not prevent the appointment of a guardian ad litem. See Noe v. True, 507 F.2d 9, 12 (6th Cir. 1974) (duties of guardian ad litem and counsel are different); Zaro v. Strauss, 167 F.2d 218, 220 (5th Cir. 1948) (representation by counsel is insufficient for determination that an incompetent or minor party is otherwise represented for purposes of Rule 17(c)); but see SUSAN BUTLER, Plaintiff, v. NORMAN ROSS, Defendant., No. 16CV1282 (DLC), 2017 WL 4417700, at *8 n.5 (S.D.N.Y. Oct. 3, 2017) (noting that Second Circuit had not followed Fifth and Sixth Circuits on this question). Moreover, "nothing in the rule prohibits the district court from appointing a guardian ad litem to represent a person not previously adjudicated as incompetent through a state proceeding." Fonner v. Fairfax Cty., VA, 415 F.3d 325, 330 (4th Cir. 2005).

         Although Rule 17(c) is silent as to what law should apply in determining whether a party is incompetent, the requirement in Rule 17(b) that the court apply the law of the individual's domicile has been held to apply to determinations under Rule 17(c). See, e.g., Thomas v. Humfield, 916 F.2d 1032, 1035 (5th Cir. 1990); Wolfe by Hedges v. Bias, 601 F.Supp. 426, 427-28 (S.D. W.Va. 1984). However, "insofar as state law might be read to preclude the federal court from exercising its appointive power under Rule 17(c), it must give way, Rule 17(b) notwithstanding, " Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 656 (2d Cir. 1999) (quoting 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1571, at 511 (2d ed.1990)). A federal court need not use the state's procedures for determining competency, so long as its procedures comport with due process. Thomas, 916 F.2d at 1035. The Due Process Clause of the Fifth Amendment limits the court's discretion with respect to the procedures used in determining whether to appoint a guardian ad litem because litigants "possess[] liberty interests in avoiding the stigma of being found incompetent and in retaining personal control over the litigation." Neilson, 199 F.3d at 651 (citing Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)).

         "Domicile requires physical presence, coupled with an intent to make the State a home." Johnson v. Advance Am., 549 F.3d 932, 937 n.2 (4th Cir. 2008). The record reflects that McCollum is originally from and prior to his incarceration resided in New Jersey, that he currently resides in Virginia, and that he resided in North Carolina during his thirty-one years of incarceration and for approximately two years following his release. Although the record is limited on this issue, the Court will presume for the purposes of its determination that at the time this suit was filed in 2015 McCollum was domiciled in North Carolina where he was living at the time.[2] See Kollsman, a Div. of Sequa Corp. v. Cohen, 996 F.2d 702, 705 (4th Cir. 1993) (proper domicile for purposes of Rule 17(c) determination was domicile at time of service of process). Under North Carolina law, an incompetent adult is defined as

an adult or emancipated minor who lacks sufficient capacity to manage the adult's own affairs or to make or communicate important decisions concerning the adult's person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, ...

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