At page 126 Determining the scope of the power of search and seizure8 citing casesholding that if a state-appointed guardian lacks capacity to sue under state law, he lacks the capacity in federal court under Rules 17(b) and (c)
- United States v. Sofjan Lamid, 663 F. App'x 319 (5th Cir. 2016).unpublishedPower & Light Co., 418 F.2d 125, 126 (5th Cir. 1969) and 6A Chables Alan Wright & Arthur R.
- Rideau Ex Rel. T.R. v. Keller Indep. Sch. Dist., 819 F.3d 155 (5th Cir. 2016).published (holding that if a state-appointed guardian lacks capacity to sue under state law, he lacks the capacity in federal court under Rules 17(b) and (c))
- Kennedy v. Sec'y of Health & Human Servs., 99 Fed. Cl. 533 (Fed. Cl. 2011).publishedSee RCFC 17(c)(2); see also T.W. & M.W. by next friend Enk v. Brophy, 124 F.3d 893, 895 (7th Cir.1997); Slade v. Louisiana Power * Light Co., 418 F.2d 125, 126 (5th Cir.1969), cert. denied, 397 U.S. 1007 , 90 S.Ct. 1233 , 25 L.Ed.2d 419 (1…
- In Re Zawisza, 73 B.R. 929 (Bankr. E.D. Pa. 1987).publishedSlade v. Louisiana Power & Light Co., 418 F.2d 125, 126 (5th Cir.1969).
- John J. Donnelly v. Honorable Barrington D. Parker, 486 F.2d 402 (D.C. Cir. 1973).published See Slade v. Louisiana Power & Light Co., 418 F.2d 125, 126 (5th Cir. 1969), cert. denied, 397 U.S. 1007 , 90 S.Ct. 1233 , 25 L.Ed.2d 419 (1970); Brimhall v. Simmons, 338 F.2d 702, 706 (6th Cir. 1964); Redditt v. Hale, 184 F.2d 443, 447 (8…
- Carl Stephen Thomas v. J.W. Humfield, 916 F.2d 1032 (5th Cir. 1990).publishedCompare Slade v. Louisiana Power & Light Co., 418 F.2d 125, 126 (5th Cir.) (if state-appointed guardian of minor children lacks capacity to sue for those children under state law, he lacks the capacity in federal court as well under Rules…
- M. S., on Behalf of Herself & All Others Similarly Situated v. Robert Wermers, Doty Brown, John Mitchell, Ira Wintrode, Stewart Steele, Donald Kelly, N. R. Whitney, J. T. Elston & Pat Tlustos, 557 F.2d 170 (8th Cir. 1977).publishedSee also Slade v. Louisiana Power & Light Co., 418 F.2d 125, 126 (5th Cir. 1969), cert. denied, 397 U.S. 1007 , 90 S.Ct. 1233 , 25 L.Ed.2d 419 (1970); Roberts v. Ohio Casualty Ins.
- M. S. v. Wermers, 557 F.2d 170 (8th Cir. 1977).publishedSee also Slade v. Louisiana Power & Light Co., 418 F.2d 125, 126 (5th Cir. 1969), cert. denied, 397 U.S. 1007 , 90 S.Ct. 1233 , 25 L.Ed.2d 419 (1970); Roberts v. Ohio Casualty Ins.
Other citing cases
- Mirella Adelman, on Behalf of Her Son, Daniel Lindsey Adelman v. David H. Graves, 747 F.2d 986 (5th Cir. 1984).published
v.
LOUISIANA POWER AND LIGHT COMPANY, Defendant-Appellee
Pursuant to Rule 18 of the Rules of this court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 409 F.2d 804 (5th Cir. 1969).
The sole issue on this appeal is whether a general guardian of minor children, appointed by a state court in Mississippi, has the power under Fed.R.Civ. P. 17(b) or 17(c) to sue as such guardian in the federal district court of Louisiana when she would lack the power to sue in such capacity in’ the state courts of Louisiana. [1] The district court answered in the negative. We agree and affirm.
It is well settled that “ * * * where a guardian or other representative of a minor already has been appointed and qualified by a state court, his capacity, when he seeks to act in federal court, is tested by the law of the state in which the district court is held, but if an infant or incompetent does not have a validly appointed state representative, the federal court in which suit is brought may name a guardian ad litem or next friend to represent him, regardless of state law.” 2 Barron and Holtzoff, Federal Practice and Procedure (Wright ed., 1961), § 488. Accord: Travelers Indemnity Co. v. Bengston, 231 F.2d 263 (5th Cir. 1956), aff’g 132 F.Supp. 512 (W.D. La., 1955); Fallat v. Gouran, 220 F.2d 325 (3d Cir. 1955); Brimhall v. Simmons, 338 F.2d 702 (6th Cir. 1964). See also 3A Moore, Federal Practice, (2d ed., 1969) ¶17.26.
Similar to the instant case, and illustrative of the principle involved, is Frankel v. Styer, 201 F.Supp. 726 (E.D.[*127] Pa., 1962). A duly qualified guardian of minor children brought an action in the federal district court for the wrongful death of the children’s father. In dismissing the action the court held that since the guardian of minor children was without power to sue on behalf of a class in the state courts of Pennsylvania he could not sue on behalf of a class in a diversity suit in the federal courts.
Affirmed.
. Since the minor children involved in this case do not reside outside Louisiana, only a tutor appointed by a Louisiana state court or the father or mother of these children can bring an action on the children’s behalf in the state courts of Louisiana. LSA-C.C.P, arts. 683, 4431. Plaintiff Mary Virginia Slade does not fit within any of these three categories, and therefore lacks capacity to sue in Louisiana state court.