United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge.
before the court is plaintiff's motion to appoint a
guardian ad litem for Jeremy Evans or to issue another
appropriate order. (ECF No. 23). For reasons expressed more
fully below, the motion to appoint a guardian ad litem is
Ohio Security Insurance Company (“Ohio Security”)
is an insurance company organized under the laws of New
Hampshire with its principal place of business in Boston,
Massachusetts. See Amended Complaint ¶ 5.
Defendant K R Enterprises, Inc. (“K R
Enterprises”) is a Virginia corporation with its
principal place of business located in Martinsville,
Virginia. See id. at ¶ 6. Defendant Jackson
Hewitt, Inc. is a Virginia corporation with its principal
place of business in Parsippany, New Jersey. See id.
at ¶ 7. During the relevant time period, Ohio Security
issued a BusinessOwners Liability Policy to K R Enterprises,
Policy Number BZS (15) 56 08 16 29. See Amended
Complaint at ¶ 60. The Ohio Security Policy also
included Data Compromise and CyberOne Coverage endorsements.
See id. at ¶¶ 73 and 75.
instant dispute centers on fraudulent tax returns filed by
defendant Jeremy Evans, a former employee of defendant K R
Enterprises, doing business as Jackson Hewitt. Specifically,
former customers of K R Enterprises have alleged that Evans
improperly accessed the records of K R Enterprises to obtain
their personal and confidential information for the purpose
of fraudulently filing their 2014 income tax returns. All of
the former customers had sought assistance preparing their
2013 tax returns from K R Enterprises and their confidential
information had been saved in the company's database.
discovering Evans' conduct, these customers of K R
Enterprises filed suit in the Circuit Court of McDowell
County, West Virginia, against Evans, K R Enterprises, and
Jackson Hewitt raising various state law claims including,
but not limited to, Breach of Fiduciary Duty, Negligence, and
Invasion of Privacy. There are six of these lawsuits
currently pending in the McDowell County Circuit Court. All
of the state lawsuits allege that Evans was arrested on or
about February 4, 2015, at a K R Enterprise location and that
Evans admitted to police that he had used the customers'
2013 tax return information to fraudulently file 2014 tax
returns in their names. For his part, Evans faces criminal
charges of identity theft, attempted felony, forgery,
uttering, petit larceny, and fraudulent schemes.
December 18, 2015, Ohio Security Insurance Company filed the
instant declaratory judgment action on the basis of diversity
jurisdiction pursuant to 28 U.S.C. § 1332 and, on March
14, 2016, it filed an amended complaint. Ohio Security asks
this court to determine that it has no duty to defend or
indemnify K R Enterprises, Evans, or Jackson Hewitt under the
BusinessOwners liability coverage and/or the Data Compromise
and CyberOne coverage for the six underlying lawsuits.
Jeremy Evans is incarcerated, he is not legally competent to
consent to service and thus cannot be properly served. Under
Federal Rule of Procedure 17(b)(1), the capacity of an
individual to be sued is determined by the law of the
individual's domicile.” At the time Ohio Security
filed the instant motion, this court had found that Evans was
domiciled in West Virginia. See Memorandum Opinion
and Order, Sacra, et al. v. Jackson Hewitt, Inc., et
al., 1:15-cv-16265 (S.D. W.Va. Feb. 19, 2016) (ECF No.
23 at p.9).
court has found on another occasion,
“[F]or an individual who is not acting in a
representative capacity, ” the individual's
capacity to be sued is determined “by the law of the
individual's domicile[.]” Fed.R.Civ.P. 17(b)(1). As
stated in this Court's prior Order, Defendant Davis'
domicile is West Virginia and he is incarcerated in West
Virginia. Thus, the Court must look to West Virginia law to
determine what protections, if any, Defendant Davis is
entitled to receive.
In considering this precise issue, the Fourth Circuit ruled
in Siers v. Greiner, No. 92-6501, 1993 WL 3475 (4th
Cir. Jan. 11, 1993), that the district court erred in not
appointing a guardian ad litem for an inmate whose ex-wife
sought to enforce outstanding judgments against him by
intervening in a civil action in which he was awarded $15,
000. 1993 WL 3475, at *1. In reaching this result, the Fourth
Circuit relied upon West Virginia Code § 28-5-36 and the
West Virginia Supreme Court's interpretation of that
statute in Craigo v. Marshall, 175 W.Va. 72, 331
S.E.2d 510 (W.Va. 1985).
Branch Banking and Trust Co. v. Davis, Civil Action
No. 3:04-01055, 2008 WL 5099627, *2 (S.D. W.Va. Dec. 2,
West Virginia Rules of Civil Procedure require that when a
civil suit is brought against an incarcerated person, service
be made on
that person's committee, guardian, or like fiduciary
resident in the State; or, if there be no such committee,
guardian, or like fiduciary . . . service of process shall be