addressing the fact that Rule 17(b) would hold that animals lack “capacity” to be sued because they are property of their owners, concluding that “the MMPA and the operation of F.R.Civ.P. 17(b) indicate that Kama the dolphin lacks standing to maintain this action as a matter of law,” and allowing “the removal of Kama’s name from the caption of [the] case”); Hawaiian Crow (ʻAlala) v. Lujan, 906 F.Supp. 549, 551–52 (D. Haw. 1991) (finding that in Northern Spotted Owl, Palila, and Mount Graham Red Squirrel, no party had challenged the named standing of the animal itself and the case had other parties in the litigation and ultimately concluding that “the cited cases do not directly support plaintiffs’ position here” and concluding that “the plain language of Rule 17(c) and section 1540(g) [did] not authorize the ʻAlala to sue” because it was “clearly neither a ‘person’ as defined in section 1532(13), nor an infant or incompetent person under Rule 17(c)”); Northern Spotted Owl v. Lujan, 758 F.Supp. 621 (W.D. Wash. 1991) (failing to address standing for named first-party); Northern Spotted Owl v. Hodel, 716 F.Supp. 479 (W.D. Wash. 1988) (failing to address standing for named first-party).
- D. The Majority’s reliance on both Rule 17 and cases discussing “adequate protection” in the context of Rule 17 are simply inapplicable.
There is a crucial distinction between the cases cited by the Majority for the proposition that the only requirement for next friend suits is to ensure the “[incompetent parties] are adequately protected,” Maj. Op. at 422 (quotation marks omitted and alterations in original), and the facts of this case and next-friend standing broadly. Each case cited is an example of an incompetent person bringing suit on his own behalf or such a person being sued by another party. I list the cases cited by the Majority to emphasize:
- Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (“Lawrence Krain appeals the dismissal with prejudice of eight lawsuits he filed, in pro se, in the district court.” (emphasis added) ).
- United States v. 30.64 Acres of Land, 795 F.2d 796, 797 (9th Cir. 1986) (“The United States filed a complaint against Starr … to establish just compensation for 30.64 acres of Starr’s land taken by the government….” (emphasis added) ).
- Harris v. Mangum, 863 F.3d 1133, 1136 (9th Cir. 2017) (“Plaintiff-Appellant Jason Harris, an Arizona state prisoner, filed pro se a lawsuit in state court that was subsequently removed….” (emphasis added) ).
- Roberts v. Ohio Cas. Ins. Co., 256 F.2d 35, 37, 39 (5th Cir. 1958) (finding where “Ohio Casualty Insurance Company … filed suit to set aside a ruling … against the claimants—the children and their grandmother,” and children had not been represented by a guardian ad litem, the lower judgment granting relief to the plaintiff must be reversed and remanded for further proceedings (emphasis added) ).
- Westcott v. U.S. Fid. Guar. Co., 158 F.2d 20, 21 (4th Cir. 1946) (“The United States Fidelity & Guaranty Company … brought a civil action … seeking a declaratory judgment to the effect that it was not liable on a public liability policy …. The defendants in the civil action … were the insured, … George Mann, a minor.” (emphasis added) ).
Quite simply, there is no Article III jurisdiction question in any of these cases. Of
