United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge
is the plaintiff's renewed motion for default judgment
against defendant William Jackson Stuck, filed November 12,
2018, or alternatively that he be the subject of an
independent medical examination; and plaintiff's
alternative motion for the appointment of a guardian ad litem
and for leave to serve process, filed January 07, 2019.
relevant factual background is set forth in the court's
memorandum opinion and order, entered December 6, 2018, in
which it granted plaintiff Erie Insurance Property and
Casualty Co.'s (“Erie”) motion for summary
judgment against the three defendants other than Mr. Stuck.
ECF No. 64.
Stuck, who is understood to be both incompetent to stand
trial and incarcerated, has not appeared in this case. The
plaintiff attempted service on Mr. Stuck by serving Timbera
Wilcox who purported to waive service on his behalf in this
matter. ECF No. 15. Ms. Wilcox was appointed as Mr.
Stuck's guardian ad litem in the underlying state civil
matter in which he was sued by his three co-defendants here.
Order Appointing a Guardian Ad Litem, ECF No. 67-2.
plaintiff attempted to serve the summons on Ms. Wilcox by
both sending a letter requesting a valid waiver directly to
her and by having a process server deliver the summons to
Brian Yost, Esq. Pl.'s Mot., ECF No. 67, at 2; Proof of
Service, ECF No. 67-1. Erie asserts that Mr. Yost was an
“agent” of Ms. Wilcox, entitled to receive
service on her behalf and that it served process on
“Timbera C. Wilcox as Guardian ad Litem for William
Stuck, care of Brian Yost at Holroyd & Yost.” The
court notes, however, that Mr. Yost could not be expected to
be an agent of Ms. Wilcox, Mr. Stuck's guardian ad litem
in the underlying state civil matter, while his law firm
represents those who seek recovery from Mr. Stuck. Erie
contends that it did not file the “Proof of
Service” showing that it attempted service on Ms.
Wilcox by leaving a summons with Mr. Yost until now because
it believed the waiver eventually signed by Ms. Wilcox was
effective. Pl.'s Mot., ECF No. 67, at 2.
asserts that service upon Ms. Wilcox in this matter was
sufficient, and thus, that it is entitled to default judgment
pursuant to Federal Rule of Civil Procedure 55: “When a
party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter the party's default.” Id.
requests, in the alternative to the court's entering
default judgment against Mr. Stuck, that Ms. Wilcox be named
Mr. Stuck's guardian ad litem in this action. Plaintiff
contends that appointing Ms. Wilcox would best serve judicial
economy, as she has represented Mr. Stuck as guardian ad
litem for two years in the underlying state civil matter.
granting Erie's motion for default judgment, the court
must determine whether Mr. Stuck has been appropriately
served with process in this matter.
Rule of Civil Procedure 4(g) provides that a minor or
incompetent person “must be served by following state
law for serving a summons or like process on such a defendant
in an action brought in the courts of general jurisdiction of
the state where service is made.” The relevant West
Virginia Rule of Civil Procedure is Rule 4(d)(3), which
provides that service upon incompetents fourteen years of age
or older should be done in accordance with Rule 4(d)(2).
Virginia Rule of Civil Procedure 4(d)(2) states that if there
is no guardian or conservator for the incompetent, and the
incompetent's father or mother cannot be found, then
“service of the summons and complaint shall be made
upon a guardian ad litem appointed under Rule 17(c).”
This is the rule describing how an incompetent person may be
served with process in West Virginia in accordance with the
Federal Rules. See Fed.R.Civ.P. 4(g).
Rule of Procedure 17(c)(1) specifies that “[t]he
following representatives may sue or defend on behalf of a
minor or an incompetent person: (A) a general guardian; (B) a
committee; (C) a conservator; or (D) a like fiduciary.”
An “other like fiduciary” is held to include a
guardian ad litem. Garrick v. Weaver, 888 F.2d 687,
693 (10th Cir. 1989).
Rule 17(c)(2) prescribes that “[a] minor or an
incompetent person who does not have a duly appointed
representative may sue by a next friend or by a guardian ad
litem. The court must appoint a guardian ad litem - or issue
another appropriate order - to protect a minor or incompetent
person who is unrepresented in an action.” Erie argues
that the court is not required to appoint a guardian ad litem
in this action for ...