Opinion
No. CV-10-1275-PHX-LOA
03-12-2012
Lisa St. Clair and Richard Poulin, individually and as parents and guardians of H.P., their minor child, Plaintiffs, v. Nellcor Puritan Bennett LLC, Defendant.
ORDER
The Court received an emailed letter, signed by the parties' counsel, advising that the parties participated in a successful mediation on February 29, 2012, and settled this case.
A district court must independently investigate and evaluate any compromise or settlement of a minor's claims to assure itself that the minor's interests are protected, even if the settlement has been recommended or negotiated by the minor's parent or guardian ad litem. Salmeron v. United States, 724 F.2d 1357, 1363 (9th Cir. 1983).
On the Court's own motion, after informally consulting with both counsel for a mutually agreeable date and time, and consistent with a district court's "special duty" to conduct its own inquiry to determine whether the settlement serves the best interests of H.P., a minor, the Court will set a final settlement approval hearing. K.T. v. Ramos, 2012 WL 443732 (D.Ariz. February 13, 2012) (quoting Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011)).
IT IS ORDERED setting a Final Settlement Approval Hearing before the undersigned Magistrate Judge on Monday, April 30, 2012 at 2:00 p.m.
IT IS FURTHER ORDERED that Plaintiffs' counsel and Plaintiffs Lisa St. Clair and Richard Poulin must be physically present at the Final Settlement Approval Hearing. Counsel for H.P. must be prepared to answer the Court's questions why the parties' settlement for the agreed-upon amounts for H.P. and her parents are in the minor's best interests, why the Court should approve the settlement, and why counsels' fees and expenses are reasonable and appropriate, and how H.P.'s money will be managed in her best interests in the future. The minor is invited, but not required, to attend the Final Settlement Approval Hearing.
IT IS FURTHER ORDERED that Plaintiffs' counsel must prepare and file a motion for approval of settlement and attorneys' fees and litigation expenses under seal on or before Friday, April 6, 2012, which sets forth with specificity the following:
1. the total amount and exact division of the settlement funds amongst the Plaintiffs in present value;
2. a detailed discussion of the reasonableness of Plaintiffs' requested attorneys' fees and litigation expenses, including a discussion of the eight factors to consider in determining the reasonableness of attorneys' fees pursuant to Ethical Rule ("ER") 1.5, Arizona Rules of Professional Conduct. See, Matter of Conservatorship of Falters, 181 Ariz. 227, 889 P.2d 20 (Az.Ct.App. 1994); In re Guardianship of Sleeth, 226 Ariz. 171, 244 P.3d 1169 (Az.Ct.App. 2010); see also, Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 186 (Tenn. 2011) ("[w]e hold that no single factor found within [ER] 1.5 merits special emphasis over the other factors in determining a reasonable fee in cases involving a minor, and we decline to add other factors. Instead, the trial court may conclude that certain factors merit greater weight under the unique circumstances of a particular case"). Plaintiffs' counsel shall provide as exhibits a complete copy of Plaintiffs' fee agreement and an affidavit of Plaintiffs' counsel, containing the information required by LRCiv 54.2(c), (d)(2), (3)- (4)(A)- (D), and (5)(e)(1)-(3).
If Plaintiffs' counsel did not keep track of his time because he represents Plaintiffs on a contingency fee basis only, Plaintiffs' counsel shall provide his best estimate of the time he/they spent working on the case as if counsel were paid on an hourly basis.
3. how Plaintiffs' fees and costs will be fairly apportioned among his three clients; and
4. Plaintiffs' proposed plan to establish a Maricopa County Superior Court guardianship for H.P. and appointment of an appropriate guardian pursuant to A.R.S. § 14-5311 to, among others, authorize and approve H.P.'s necessary medical, surgical or other professional care and treatment, purchase of durable medical goods, A.R.S. § 14-5209(B)-(C); give consents or approvals necessary for H.P.'s care, comfort and maintenance, A.R.S. § 14-5312(A)-(B); protect, monitor, and preserve H.P.'s net res of the settlement funds and other property; and perform such other procedural and substantive duties in H.P.'s best interests as allowed by Arizona law.
"Guardians have the duty to make broad care decisions for the wards in their care and are required to care for their wards' personal effects, including their [property]." In re Conservatorship for Geake, 2008 WL 2352481, * 2 (Az.Ct.App. June 5, 2008) (citing A.R.S. §§ 14-5209, -5312 (2005)).
IT IS FURTHER ORDERED that Defendant and its insurance company must file a Notice of Deposit and deposit the entire settlement funds into the District of Arizona's Court Registry Investment System ("CRIS") on or before Friday, April 6, 2012. See, LRCiv 67.1.
Under the federal CRIS program, money deposited in every district court case is pooled with the money on deposit with the Treasury, with a credit back to all district courts with funds in CRIS, which is used to purchase Government Account Series securities through the Bureau of Public Debt. See 28 U.S.C. §§ 2041, 2045; Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1308 n. 5 (9th Cir. 1990). CRIS operates on a weekly cycle tied to a Thursday maturity date of these securities. CRIS will deduct a 10% fee from the amount of interest earned weekly. The 10% fee covers the cost to the court of managing the investments. See, § 920.50, Registry Fees, Guide to Judiciary Policy, Vol. 13, Ch. 9; LRCiv 67.1(c).
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IT IS FURTHER ORDERED vacating the final pretrial conference set for Monday, April 30, 2012 and the jury trial scheduled to commence on Monday, May 7, 2012.
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Lawrence O. Anderson
United States Magistrate Judge