United States District Court, W.D. Virginia, Roanoke Division
ANGELA MURPHY, proceeding on behalf of her minor child JANE DOE, Plaintiff,
DANIEL L. CRANDALL, Defendant.
Murphy, Pro Se Plaintiff;
Richard E. Ladd, Jr., Penn Stuart, Bristol, Tennessee, and
William W. Eskridge, Penn Stuart, Abingdon, Virginia, for
OPINION AND ORDER
P. Jones United States District Judge
Angela Murphy, proceeding pro se, filed this suit on behalf
of her minor child, Jane Doe. Invoking the court's
diversity jurisdiction, she asserts state law claims of
assault, battery, sexual assault and sexual battery on a
minor child, sexual abuse of a minor child, intentional
infliction of emotional distress, and reckless infliction of
emotional distress. The defendant has moved to dismiss for
lack of standing and has also moved to strike Exhibits B and
C to the Complaint. Murphy has responded to these motions and
has filed a Motion for Leave to Amend Complaint.
defendant argues that the Complaint must be dismissed because
it is captioned improperly according to Virginia law, and
Murphy lacks standing to bring this suit in her own name. A
Virginia statute provides that “[a]ny minor entitled to
sue may do so by his next friend. Either or both parents may
sue on behalf of a minor as his next friend.” Va. Code
Ann. § 8.01-8. The Supreme Court of Virginia has held
that such a suit must be brought in the name of the minor
rather than in the name of the next friend. Herndon v.
St. Mary's Hosp., Inc., 587 S.E.2d 567, 570 (Va.
2003). The defendant argues that under Virginia law, when a
suit on behalf of a minor is brought in the name of the next
friend, the error cannot be cured by amending the complaint.
Instead, the complaint must be dismissed. See Id. at
477; Kirby v. Gillam, 28 S.E.2d 40, 45 (Va. 1943).
case is in federal court, however, and I must apply federal
law to questions of procedure. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938) (holding that federal
courts sitting in diversity are to apply state substantive
law and federal procedural law). Although the defendant
contends that capacity to sue is a substantive issue of
Virginia law, the issue is addressed by the Federal Rules of
Civil Procedure. Rule 17(b)(1) provides that capacity to sue
is a question for the law of the individual's domicile.
In addition, the Rules state, “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.” Fed.R.Civ.P. 17(c)(2).
domicile is not Virginia, but Massachusetts. The
Massachusetts rules require that “every action shall be
prosecuted in the name of the real party in interest.”
Mass. R. Civ. P. 17(a). An infant's “representative
may sue or defend on behalf of the infant.”
Id. at 17(b). An infant without an appointed
representative may sue by a next friend. Id.
No action shall be dismissed on the ground that it is not
prosecuted in the name of the real party in interest until a
reasonable time has been allowed after objection for
ratification of commencement of the action by, or joinder or
substitution of, the real party in interest; and such
ratification, joinder, or substitution shall have the same
effect as if the action had been commenced in the name of the
real party in interest.
Id. at 17(a).
federal rules similarly prohibit a court from dismissing a
case that was improperly filed in the name of someone other
than the real party in interest “until, after an
objection, a reasonable time has been allowed for the real
party in interest to ratify, join, or be substituted into the
action. After ratification, joinder, or substitution, the
action proceeds as if it had been originally commenced by the
real party in interest.” Fed.R.Civ.P. 17(a)(3).
federal procedural law, as well as Massachusetts state law
governing suits by minors, I will deny the Motion to Dismiss
and grant the plaintiff's Motion for Leave to Amend
Complaint. Jane Doe shall be substituted as plaintiff, and
the caption shall hereafter read “Jane Doe, an infant,
by her next friend, Angela Murphy.”
defendant has also moved to strike two exhibits from the
Complaint, stating only that the exhibits are not expressly
referenced in the Complaint. Rule 12(f) allows a court to
strike from a pleading “any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
Exhibits B and C are relevant to the plaintiff's claims,
but in view of their content, I will direct that they be
placed under seal and deny the Motion to Strike.
who is not a lawyer, faces another problem in this case that
has not been raised by the defendant, but that I am obligated
to raise sua sponte. The Fourth Circuit has held that a
parent suing on behalf of a minor child may not proceed pro
se, but must have counsel. Myers v. Loudoun Cty. Pub.
Sch., 418 F.3d 395, 399-401 (4th Cir. 2005) (“We
therefore join the vast majority of our sister circuits in
holding that non-attorney parents generally may not litigate
the claims of their minor children in federal court.”).
This rule is designed to protect the minor child from the
likely harm resulting from representation in court by one who
is not legally trained. See Id. Murphy has
represented that she is diligently working to secure counsel.
Because she is legally unable to prosecute ...