Free Order - District Court of California - California

Case 3:08-cv-03534-MMC

Document 5

Filed 08/19/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

TAMIA IRENE WILSON, Plaintiff, v. MICHAEL J. ASTRUE, Defendant /

No. C-08-3534 MMC ORDER TO SHOW CAUSE

United States District Court

Before the Court is plaintiff Tamia Irene Wilson's ("Tamia") complaint, filed July 23, 2008, by which she seeks judicial review of a decision issued by the Commissioner of Social Security. Also before the Court is an application to proceed in forma pauperis, filed July 23, 2008 by Melissa Wilson, Tamia's mother, who states Tamia is four years old. "[O]ne's capacity to pursue an [ ] action in federal court is governed by state law." Zavala v. United States, 876 F. 2d 780, 784 (9th Cir. 1989) (citing Fed. R. Civ. P. 17(b)). Under California law,1 "[w]hen a minor . . . is a party, that person shall appear either by a guardian or . . . or by a guardian ad litem appointed by the court in which the action or proceeding is pending." See Cal. Code Civ. Proc. § 372(a). Consequently, Tamia may not maintain the instant action in her own name. //

The complaint alleges that Tamia is a resident of California.

Case 3:08-cv-03534-MMC

Document 5

Filed 08/19/2008

Page 2 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Accordingly, counsel for Tamia is hereby DIRECTED TO SHOW CAUSE, in writing and no later than September 5, 2008, why the instant action should not be dismissed without prejudice. If, prior to September 5, 2008, counsel for Tamia files a First Amended Complaint in which Tamia appears through a guardian, or through a proposed guardian ad litem, however, the instant order will stand discharged without further order of the Court, and the instant action will thereafter proceed on such First Amended Complaint. The application to proceed in forma pauperis remains under submission. IT IS SO ORDERED.

Dated: August 19, 2008 MAXINE M. CHESNEY United States District Judge

2