G.D. v. KANNAPOLIS CITY SCHOOLS BOARD OF EDUCATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

G.D., )

)

Plaintiff, )

)

v. ) 1:22cv1001

)

KANNAPOLIS CITY SCHOOLS BOARD OF )

EDUCATION, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court on the “Motion to Amend”

(Docket Entry 18) (the “Amendment Motion”) and the “Motion to Seal”

(Docket Entry 19) (the “Sealing Motion”) filed by G.D. (at times,

the “Plaintiff”). For the reasons that follow, the Court will

grant in part and deny in part the Amendment Motion and will grant

the Sealing Motion.

INTRODUCTION

Asserting that the Kannapolis City Schools Board of Education,

an elementary school teacher, and an elementary school principal

(collectively, the “Defendants”) failed to protect him from sexual

abuse by another student, Plaintiff sued Defendants in their

individual and official capacities for violations of his rights

under state and federal law. (See Docket Entry 1 (the “Complaint”)

at 1-18.)1 According to the Complaint, “G.D. is a minor child”

1 Docket Entry page citations utilize the CM/ECF footer’s

pagination.

(id., ¶ 1), who “resides with his custodial parent in Rowan County,

North Carolina” (id., ¶ 2). Contemporaneously with filing the

Complaint, Plaintiff filed a motion requesting “the appointment of

Russell Johnson [(at times, ‘Johnson’)] as guardian ad litem for

[Plaintiff] . . . pursuant to Rule 17 of the Federal Rules of Civil

Procedure” (the “Rules”). (Docket Entry 3 (the “GAL Motion”) at

1.) In ruling on the GAL Motion, the Court explained, inter alia:

Under Rule 17, “a general guardian” may sue “on

behalf of a minor.” Fed. R. Civ. P. 17(c)(1)(A). In

addition,

[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.

Fed. R. Civ. P. 17(c)(2). “These provisions permit, but

do not compel, a court to appoint a guardian ad litem for

an unrepresented minor.” Seibels, Bruce & Co. v. Nicke,

168 F.R.D. 542, 543 (M.D.N.C. 1996); see also Powell v.

Symons, 680 F.3d 301, 303 (3d Cir. 2012)

(“[R]esponsibility for Rule 17 appears generally to be

left to the discretion of the district courts.”). In

other words, “Rule 17(c) does not make the appointment of

a guardian ad litem mandatory. If the court feels that

the infant’s [or incompetent person’s] interests are

otherwise adequately represented and protected, a

guardian ad litem need not be appointed.” Adelman on

Behalf of Adelman v. Graves, 747 F.2d 986, 989 (5th Cir.

1984) (brackets in original) (internal quotation marks

omitted) (citing Westcott v. United States Fid. & Guar.

Co., 158 F.2d 20 (4th Cir. 1946)).

*****

. . . [T]he GAL Motion maintains that Plaintiff “is

a minor child who is a resident of Rowan County, North

Carolina and who is without a general or testamentary

2

guardian in this State.” (Docket Entry 3 at 1.) The

Complaint asserts, however, that Plaintiff “resides with

his custodial parent in Rowan County, North Carolina.”

(Docket Entry 1, 7 2.) Under Rule 17, “[clapacity to sue

. . . is determined .. . by the law of the individual’s

domicile.” Fed. R. Civ. P. 17(b) (1); accord Hudnall v.

Sellner, 800 F.2d 377, 384 (4th Cir. 1986) (“Capacity is

controlled by [Rule 17], which defers questions of legal

capacity to the law of [the relevant party’s] domicile,

here [North Carolina].”). North Carolina recognizes

parents as “the natural guardians of the person of their

minor children.” N.C. Gen. Stat. § 35A-1201 (a) (6).

Thus, “[i]n most cases, a parent qualifies as a ‘general

guardian’ who may act on behalf of a minor without

needing a formal court appointment under Federal Rule

l7(c).” Epic Games, Inc. v. C.B., No. 5:19-cv-250, 2019

WL 8334611, at *1 (E.D.N.C. Sept. 27, 2019); see also,

e.g., Communities for Equity v. Michigan High Sch.

Athletic Ass’n, 26 F. Supp. 2d 1001, 1006 (W.D. Mich.

1998) (“[Rule] l17(c) . . . provides that a general

guardian may sue on behalf of a minor. A parent is a

guardian who may so sue.”).

Moreover:

[n]othing else appearing, it may be presumed that a

parent acts in the best interest of the child.

Permitting the parent to act as a guardian saves

the expense of appointing a guardian [ad litem]

which is also an important policy

consideration. . . . Furthermore, a federal court

should, as a matter of sound policy, be cautious in

attempting to step between the parent and his or

her child.

Seibels, 168 F.R.D. at 544 (citation and footnote

omitted). Here, the GAL Motion provides no explanation

for why Plaintiff’s “custodial parent” (Docket Entry 1,

{ 2) cannot serve as his guardian in this matter (see

Docket Entry 3 at 1-2) and the Complaint discloses no

such grounds (see generally Docket Entry 1). The

potential availability of Plaintiff’s custodial parent to

assist in this litigation counsels against appointment of

a separate guardian ad litem. See, e.g., Nicholson v.

Zimmerman, No. 1:19cv585, 2020 WL 5518701, at *8

(M.D.N.C. Sept. 14, 2020) (denying guardian ad litem

appointment request and “find[ing] that [the p]laintiff

‘is adequately protected’ without appointment of a

guardian ad litem,” where, inter alia, “the record

supports the conclusion that [the p]laintiff may call

upon at least one family member willing and able to aid

him in prosecuting his claims even absent formal

designation as a guardian ad litem”).

(Docket Entry 14 (the “GAL Order”) at 2-5 (certain brackets and

ellipses in original).)

Given these considerations and various other deficiencies in

the GAL Motion, the Court denied Plaintiff’s “request to appoint

Johnson guardian ad litem, but without prejudice to the filing of

a properly supported application for appointment of a guardian ad

litem, if Plaintiff’s situation so warrants.” (Id. at 7; see

also id. at 8 (ordering “that the GAL Motion (Docket Entry 3) is

DENIED WITHOUT PREJUDICE to the filing of a properly supported

request for appointment of a guardian ad litem” (emphasis in

original)).)

Thereafter, Plaintiff filed the Amendment Motion, which seeks

“leave to file [a] proposed First Amended Motion for Appointment of

Guardian ad Litem” and “leave to Amend [the] Complaint for the sole

purpose of substituting [Plaintiff’s] mother, S.G.[,] as Guardian

ad Litem.” (Docket Entry 18 at 1.) Through the Amendment Motion,

“Plaintiff seeks to correct the defect[s] in the [GAL Motion] and

caption of the Complaint identified by the Court in its [GAL]

Order.” (Id. at 2.) According to the Amendment Motion, “Plaintiff

previously sought to appoint Attorney Russell Johnson . . . to

serve as guardian ad litem for Plaintiff” and “did not originally

4

appoint his ‘custodial parent’ in order to protect the minor

plaintiff’s anonymity as identifying the custodial parent will

otherwise ultimately identify the minor child. However,

Plaintiff’s mother can be appointed, and still protect Plaintiff’s

anonymity, if Plaintiff’s mother is identified by the pseudonym

‘S.G.’” (Id. at 3.)

The Amendment Motion further asserts (i) that “it is not made

with undue delay, bad faith, or with any dilatory motive on [the]

part of the movant,” (ii) “that the proposed amendments will not

cause undue prejudice to Defendants[, as] Defendants have consented

to Plaintiff’s sought Amendments,” and (iii) that, “[f]or the

reasons stated above, Plaintiff respectfully submits that he has

good cause under the applicable rules and case law for this Court

to grant leave to [a]mend his [GAL Motion] and correct the

Complaint to properly reflect the custodial parent as Guardian ad

Litem.” (Id.) The Amendment Motion concludes: “For these

reasons, Plaintiff respectfully moves the Court for an order

granting leave to file the attached First Amended Motion for

Appointment of Guardian ad Litem and granting leave to amend the

Complaint to reflect the same.” (Id. at 4.) Defendants filed no

response to the Amendment Motion, which Plaintiff docketed as a

“consent” motion. (See Docket Entries dated Feb. 2, 2023, to

present.)

5

DISCUSSION

As an initial matter, the Court denied the GAL Motion “without

prejudice to the filing of a properly supported application for

appointment of a guardian ad litem, if Plaintiff’s situation so

warrants” (Docket Entry 14 at 7), mooting Plaintiff’s request to

amend the GAL Motion. Additionally, per the Amendment Motion,

Defendants consented to Plaintiff’s request to amend his Complaint

(see Docket Entry 18 at 3), thereby authorizing the requested

amendment under Rule 15, see Fed. R. Civ. P. 15(a)(2). Moreover,

Plaintiff filed the Amendment Motion within 21 days of the filing

of an Answer by the first two Defendants to respond to the

Complaint. (See Docket Entries 16, 18; see also Docket Entry 23

(motion to dismiss by remaining Defendant).) Thus, Plaintiff

possessed the right to amend his Complaint as a matter of course

when he filed the Amendment Motion. See Fed. R. Civ. P.

15(a)(1)(B); see also Fed. R. Civ. P. 15 Advisory Committee’s

Notes, 2009 Amendment (“[Rule 15] permits one amendment as a matter

of course in response to a responsive pleading. The right is

subject to the same 21-day limit as the right to amend in response

to a motion.”). As such, Plaintiff does not require this Court’s

permission to “correct the Complaint to properly reflect the

custodial parent as Guardian ad Litem.” (Docket Entry 18 at 3.)

Nevertheless, the Court reiterates that Plaintiff’s custodial

parent does not require appointment as a guardian ad litem in this

6

matter. (See generally Docket Entry 14 at 4-5.) As a neighboring

court recently explained, “Rule 17(c) provides that certain

specified representatives may sue on behalf of a minor, or if the

minor ‘does not have a duly appointed representative, [the minor]

may sue by a next friend or by a guardian ad litem.’” A.R. by &

through D.R. v. Wake Cnty. Bd. of Educ., No. 5:22-cv-45, 2022 WL

16953620, at *2 (E.D.N.C. Nov. 15, 2022) (quoting Fed. R. Civ. P.

17(c) (2)). ™“[S.G.], as a parent, ‘qualifies as a general guardian

who may act on behalf of [her] minor [child] without needing a

formal court appointment under Federal Rule 17(c).’” Id. (quoting

Epic Games, 2019 WL 8334611, at *1); see also Genesco, Inc. v. Cone

Mills Corp., 604 F.2d 281, 285 (4th Cir. 1979) (observing,

regarding lawsuit commenced by parent as “next friend” of minor

child, that “Rule 17(c) permits an infant who lacks a general

guardian to bring suit by his next friend, and special

appointment process for the next friend is required”).

In other words, S.G. “may bring suit on [G.D.]’s behalf in

federal court under Rule 17(c),” A.R., 2022 WL 16953620, at *3,

without the necessity of appointment as a guardian ad litem, see

id. at *2-3. Indeed, such appointment “would be a needless

formality.” Allen v. State Bd. of Educ. of N.C., 55 F.R.D. 350,

352 (M.D.N.C. 1972), aff’d, 473 F.2d 906 (Table) (4th Cir. 1973);

see also id. at 351-52 (explaining that parent plaintiffs lacked

standing to serve as “representatives of a class of taxpayers” and

that, “insofar as the [parents] complain on their own behalf and

not upon behalf of their children, as the natural guardians

thereof, they must also be held to lack standing,” but that, “[a]s

to the unquestioned standing of the [parents] to bring this action

as natural guardians for their own children, their appointment as

guardians ad litem would be a needless formality”). Under the

circumstances, and in the interests of judicial efficiency, the

Court will authorize Plaintiff to file an Amended Complaint that

“substitut[es] his mother, S.G.[,] as [g]uardian” (Docket Entry 18

at 1) rather than as guardian ad litem.2

Finally, the Amendment Motion tacitly seeks permission for

Plaintiff’s mother to proceed under “the pseudonym ‘S.G.’” (Id. at

3.)3 That issue arises because:

Pursuant to Rule 10(a) . . ., “[t]he title of [a]

complaint must name all the parties.” This requirement,

though seemingly pedestrian, serves the vital purpose of

facilitating public scrutiny of judicial proceedings and

therefore cannot be set aside lightly. Certainly,

“[i]dentifying the parties to the proceeding is an

important dimension of publicness. The people have a

right to know who is using their courts.” Doe v. Blue

Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir.

1997) (Posner, J.). Courts have nevertheless “carved out

a limited number of exceptions to the general requirement

2 Alternatively, S.G. may proceed as Plaintiff’s “next

friend” in this matter. See, e.g., Genesco, 604 F.2d at 285.

3 Plaintiff’s proposed amended motion for appointment of a

guardian ad litem explicitly “requests this Court allow that the

minor and his mother be permitted to proceed by the [G.D. and S.G.]

pseudonyms in the case heading and all documents filed publicly on

the Court’s docket” (Docket Entry 18-2 at 2) and provides

supporting authority for that request (see id. at 2-3).

8

of disclosure [of the names of parties], which permit

plaintiffs to proceed anonymously.” Roe v. Aware Woman

Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir.

2001).

Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 188-89 (2d Cir.

2008) (brackets in original).

Furthermore, “[d]espite the presumption in favor of

disclosure, the [Rules] describe circumstances in which filings may

be redacted and where access to public filings may be limited.”

McCutchen v. Becerra, No. 1:21-cv-1112, 2021 WL 1718806, at *2

(D.D.C. Apr. 23, 2021) (citing Fed. R. Civ. P. 5.2). “Minors, for

example, must be referred to using only their initials. Fed. R.

Civ. P. 5.2(a)(3). The [C]ourt may also, for good cause, ‘require

redaction of additional information.’ Fed. R. Civ. P. 5.2(e)(1).”

Id. (all-cap font omitted). Accordingly, recognizing that a minor

child and “his parents’ privacy interests are intractably

intertwined,” J.W. v. District of Columbia, 318 F.R.D. 196, 199

(D.D.C. 2016) (internal quotation marks omitted), and that “a

parent’s identity, if disclosed, could jeopardize the child’s

confidentiality,” id., courts have repeatedly authorized parents

and guardians suing on behalf of minors to proceed anonymously to

protect the children’s identities, see, e.g., McCutchen, 2021 WL

1718806, at *1 (authorizing “eight minor plaintiffs and the next

friends suing on their behalf to proceed under pseudonym”); J.W.,

318 F.R.D. at 202 (“find[ing] that permitting [the p]laintiffs to

proceed using only their initials is warranted in this case, and

9

that the right of public access is outweighed by [the p]laintiffs’

overriding interest in protecting J.W.’s identity and avoiding

unnecessary publicity concerning his disability” (internal

quotation marks omitted)); M.P. v. Schwartz, 853 F. Supp. 164 (D.

Md. 1994) (authorizing redaction of complaint to include only

initials of minor plaintiff and her family).

In analyzing whether to permit Plaintiff’s parent to proceed

anonymously, this Court considers the following factors:

whether the justification asserted by the requesting

party is merely to avoid the annoyance and criticism that

may attend any litigation or is to preserve privacy in a

matter of sensitive and highly personal nature; whether

identification poses a risk of retaliatory physical or

mental harm to the requesting party or even more

critically, to innocent non-parties; the ages of the

persons whose privacy interests are sought to be

protected; whether the action is against a governmental

or private party; and, relatedly, the risk of unfairness

to the opposing party from allowing an action against it

to proceed anonymously.

James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993).

As for the first factor, this case concerns allegations of

sexual conduct between elementary school children (see, e.g.,

Docket Entry 1, ¶¶ 12-24), i.e., a matter fairly described as

“sensitive and highly personal,” James, 6 F.3d at 238. As for the

second factor, although “there is no alleged risk of retaliatory

physical or mental harm . . ., the Court places limited weight on

this factor because [P]laintiff[] ha[s] shown that the case

involves ‘a matter of [a] sensitive and highly personal nature.’”

McCutchen, 2021 WL 1718806, at *3 (emphasis omitted) (final set of

10

brackets in original). “The third factor, ‘the ages of the persons

whose privacy interests are sought to be protected,’ also weighs in

favor of allowing [S.G.] to proceed anonymously,” id., for,

“although the name[] that will be hidden [is] th[at] of [an]

adult[], this serves primarily to protect the privacy interests of

[a] minor child[],” id.; see also id. a *2 (“The Federal Rules

already provide the minor children themselves the protection of

anonymity. Plaintiffs are concerned, however, that failing to

extend that protection to the names of the children’s parents or

guardians . . . would tend to reveal the identity of the minor

[p]laintiffs themselves. Although it is the adults’ names that

will be hidden, the instant motion is primarily about protecting

the privacy of the children.” (citations and internal quotation

marks omitted); J.W., 318 F.R.D. at 199 (“J.W. and his parents’

privacy interests are intractably intertwined. As other courts

have recognized[,] . . . a parent’s identity, ‘if disclosed, could

jeopardize the child’s confidentiality.’”).

As for the fourth factor, courts differ on whether suits

against a private individual or a government entity counsel against

anonymity. Compare, e.g., McCutchen, 2021 WL 1718806, at *3

(“[T]he fact that this suit is against the government weighs in

favor of denying plaintiffs’ motion, but only very slightly.

‘[T]here is a heightened public interest when an individual or

entity files a suit against the government.’ In re Sealed Case,

11

971 F.3d [324,] 329 [(D.C. Cir. 2020)]. There is nothing about

these proceedings, however, that creates any need for transparency

with respect to the plaintiffs’ identities. Cf. id. (describing

the public interest as ‘particularly great’ where regulated entity

sued government agency regarding ‘special exemptions’ from

statutory obligations). Here, plaintiffs are challenging

government action, but primarily seek to vindicate their own rights

and those of individuals similarly situated, and anonymity appears

to be necessary to provide them the opportunity to vindicate those

rights.” (second set of brackets in original)), with Doe v.

Pittsylvania Cnty., 844 F. Supp. 2d 724, 730 (W.D. Va. 2012)

(“Courts in general are less likely to grant a plaintiff permission

to proceed anonymously when the plaintiff sues a private individual

than when the action is against a governmental entity seeking to

have a law or regulation declared invalid. Actions against the

government do no harm to its reputation, whereas suits filed

against private parties may damage their good names and result in

economic harm. Thus, it is a matter of basic fairness that a

private-party defendant’s accusers participate in the suit under

their real names. But the reverse is not necessarily true. The

simple fact that [a] plaintiff sues a governmental entity does not

give the court more reason to grant her request for anonymity. Of

course, in only a very few cases challenging governmental activity

12

can anonymity be justified.” (citations, brackets, footnote, and

internal quotation marks omitted)).

Here, Plaintiff sues a governmental entity and certain

government employees in both their official and individual

capacities. (See Docket Entry 1, ¶¶ 3-6.) Moreover, S.G. pursues

this litigation exclusively on Plaintiff’s behalf (see generally

Docket Entry 1 (seeking recovery solely for Plaintiff)), and

Plaintiff himself possesses entitlement to anonymity, see Fed. R.

Civ. P. 5.2(a)(3). Under the circumstances, the fourth factor

appears neutral.

Finally, allowing S.G. “to proceed under [a] pseudonym will

not prejudice [D]efendants in any way.” McCutchen, 2021 WL

1718806, at *3. Given Plaintiff’s tenure at Defendants’ elementary

school, Defendants already know Plaintiff’s and his mother’s

identities. (See, e.g., Docket Entry 1, ¶ 15 (asserting that, on

March 21, 2019, “G.D.’s mother expressly informed the ‘Trilogy’

program director, Defendant Madison Peele,” of certain interactions

between G.D. and another student, as “documented in the excerpted

text messages from G.D.’s mother to Defendant Peele, attached as

Exhibit 1 [to the Complaint],” and that, “[u]pon information and

belief, Defendant Peele reported this conduct to other officials at

Kannapolis City Schools, in conformity with the school’s published

policies, specifically including Defendant Sain” (emphasis

13

omitted)).)* Hence, allowing S.G. “to proceed under [a] pseudonym

4 Plaintiff also filed an affidavit by S.G. (under seal)

explicitly identifying herself and G.D. by name. (See Docket Entry

20 at 1-2.) Plaintiff filed a publically available version of this

affidavit, which redacted $.G.’s and G.D.’s names (see Docket Entry

19-1 at 1-2), and moved to permanently seal the unredacted

affidavit (see Docket Entry 19 at 1-2). Although the unredacted

affidavit arguably qualifies as unnecessary, given Defendants’

knowledge of Plaintiff’s and his mother’s identities and the

instant resolution of the Amendment Motion, the Court will, in the

interests of maintaining a complete judicial record and knowledge

of the identities of those involved in the instant litigation,

grant the Sealing Motion for the reasons stated below.

Assuming the affidavit qualifies as a judicial record, but see

In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703 (d), 707

F.3d 283, 290 (4th Cir. 2013) (explaining that “documents filed

with the court are ‘judicial records’ if they play a role in the

adjudicative process, or adjudicate substantive rights”), a common-

law right of access applies to it, which “can be rebutted if

countervailing interests heavily outweigh the public interests in

access,” Virginia Dep’t of State Police v. Washington Post, 386

F.3d 567, 575 (4th Cir. 2004) (internal quotation marks omitted).

In ruling on a motion to seal, the Court (i) “must give the public

notice of the request to seal and a reasonable opportunity to

challenge the request,” (ii) “must consider less drastic

alternatives to sealing,” and (iii) must state the reasons for

sealing, “if it decides to seal.” Id. at 576. Here, the Sealing

Motion has appeared on the docket for more than a month, with no

objections filed thereto. (See Docket Entries dated Feb. 2, 2023,

to the present.) Accordingly, the Court finds that all interested

persons have received “notice of the request to seal anda

reasonable opportunity to challenge the request,” Washington Post,

386 F.3d at 576. Further, the Sealing Motion seeks only to redact

the identities of S.G. and G.D. from the publically filed affidavit

(see Docket Entry 19 at 1-2; Docket Entry 19-1 at 1-2), a less-

drastic alternative than sealing the entire affidavit. As

discussed above, protection of G.D.’s and his mother’s identities

in this litigation remains appropriate; indeed, revealing this

information would undermine the entire purpose of allowing S.G. to

proceed under a pseudonym. The Court will therefore grant the

Sealing Motion. See also, e.g., M.G.M. by & through Mabe v. Keurig

Green Mountain, Inc., No. 1:22-cv-36, 2022 WL 6170557, at *2

(M.D.N.C. Oct. 7, 2022) (“Courts and legislatures have historically

protected the privacy rights of minors. And the Supreme Court has

confirmed that safeguarding the physical and psychological

14

will not compromise [D]efendants’ ability to defend this action and

poses no ‘risk of unfairness to the opposing party.’” McCutchen,

2021 WL 1718806, at *3.

CONCLUSION

In sum, the James factors weigh in favor of permitting S.G. to

proceed under a pseudonym in this matter. The Court will therefore

grant G.D.’s mother’s request to proceed under the “S.G.”

pseudonym.

IT IS THEREFORE ORDERED that the Amendment Motion (Docket

Entry 18) is GRANTED IN PART AND DENIED IN PART as follows:

Plaintiff’s mother may proceed under the “S.G.” pseudonym and

Plaintiff may file an amended complaint substituting S.G. as his

guardian (or next friend), on or before March 23, 2023.

IT IS FURTHER ORDERED that the Sealing Motion (Docket Entry

19) is GRANTED.

This 16th day of March, 2023.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

well-being of a minor is a compelling governmental interest.

Accordingly, many courts have held that compelling governmental

interests require the sealing of documents relating to minors in

general.” (citations, brackets, and internal quotation marks

omitted)).

15