Cite as 888 F.3d 418 (9th Cir. 2018)
litem [or next friend] if it determines the person is or can be otherwise adequately protected.” Id. (citing Roberts v. Ohio Casualty Ins. Co., 256 F.2d 35, 39 (5th Cir. 1958) (“Rule 17(c) does not make the appointment of a guardian ad litem mandatory.”) ). See also Harris v. Mangum, 863 F.3d 1138, 1139 n.2 (9th Cir. 2017) (noting circumstances in which “appointing a guardian ad litem … could hinder the purpose of Rule 17(c),” and thus was not required). For example, “the court may find that the incompetent person’s interests would be adequately protected by the appointment of a lawyer.” Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (citing Westcott v. United States Fidelity & Guaranty Co., 158 F.2d 20, 22 (4th Cir. 1946) ). Indeed, courts have done just this, and the fact that those courts did not then dismiss the case proves that the lack of a next friend does not destroy an incompetent party’s standing. See, e.g., Westcott, 158 F.2d at 22 (affirming judgment against minor who was represented by an attorney but not a guardian ad litem).[1]
Concluding otherwise would conflict with our precedent. In Cetacean Community, 386 F.3d at 1171, we held that a group of cetaceans could demonstrate Article III standing. There, the cetaceans had no purported “next friend.” Thus, were we to vacate the case we have before us now and remand with instructions to dismiss because of PETA’s failure to establish “next friend” standing, our jurisprudence would permit a case brought “directly” by animals without any allegation that the suit was brought by a “next friend”—as was the case in Cetacean—but would not permit a case brought by an organization as the “next friend” of the animal at issue if the organization failed to meet the relational requirements. That cannot be the law. We thus hold that Naruto’s Article III standing under Cetacean is not dependent on PETA’s sufficiency as a guardian or “next friend,” and we proceed to our Article III standing analysis.[2]
- ↑ Here, we find that this case was briefed and argued by competent counsel who represented the legal interests of the incompetent party, but not a person, Naruto. Thus, his interests up to submission of the case following oral argument were adequately protected, notwithstanding any deficiencies in PETA’s “next friend” relationship.
- ↑ This is where we depart from the concurring opinion. First, Judge N.R. Smith seems to posit that we must restrict our inquiry into Article III standing and its effect on jurisdiction to an examination of the validity of the claimed Next Friend status, because that is how the complaint is stated. See infra, note 8 (Smith, J., concurring in part). In other words, since Naruto’s only stated basis for jurisdiction is Next Friend status, we can determine whether we have jurisdiction by examining only the validity of the Next Friend claim. But such a restriction is contrary to our long held and often restated duty to examine sua sponte whether jurisdiction exists, regardless how the parties have framed their claims. See, e.g. Gonzalez v. Thaler, 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte the issues that the parties have disclaimed or have not presented. Subject matter jurisdiction can never be waived or forfeited.”) (internal citations omitted). We therefore respectfully reject this suggested limitation.
Next, although Judge N.R. Smith agrees that an animal cannot sue by next friend, he nevertheless limits his analysis to cases involving next friend suits under statutes which contain particular next friend provisions. Under Whitmore and Coalition, he argues, we must dismiss based on PETA’s insufficiency as a “next friend.” But if we all agree that suits by animals cannot be brought under FRCP 17, because the rule refers only to “persons,” not “animals,” why would we want to follow and be bound by habeas cases for humans for which the statute (§ 2242) expressly provides next friend standing? The concurrence does not explain this point.
In our view, the question of standing was explicitly decided in Cetacean. Although, as
