*1 Before the Court are several motions: (1) a Motion for Leave to File a Supplemental Pleading (DN 24) filed by Plaintiff Jennie V. Wright (“Jennie Wright”); (2) a Motion for Summary Judgment and in the Alternative For a Settlement Conference (DN 29) filed by Jennie and Saul Wright (the “Wrights”); (3) a Motion to Compel (DN 34) filed by the Wrights; and (4) a Motion for Protective Order and Response to the Motion to Compel (DN 36) filed by former Defendant Louisville Jefferson County Metro Government (“Louisville Metro”). These motions are ready for the Court's review. The Court had also ordered the Wrights to take any necessary steps to move this action forward on or before April 11, 2023. (DN 32.) Therefore, this matter is also ready for review as to the general status of the case. The Court will address these issues and the pending motions below.

I. BACKGROUND

This action was filed in state court on May 6, 2021, by the Wrights' former counsel. (DN 1-1.) The action was brought by Jennie Wright and Saul Wright on their own behalf and as guardians and next friends of their minor children J.L. and B.B. (Id. at PageID # 6.) The Complaint indicated that at the time the events underlying the Complaint occurred on May 7, 2020, J.L. was fifteen years old and B.B. was sixteen years old. (Id. at 6-7.) The Complaint represented that “[b]oth children have modest developmental issues.” (Id. at 6.) The only defendants listed in the Complaint were Louisville Metro Government and “Unknown Police Officers.” (Id.) The Complaint alleged claims of fraud and illegal search and seizure against the unknown officers pursuant to 42 U.S.C. § 1983, a Monell claim against Louisville Metro, and various state law claims against the unknown officers. (Id. at 8-11.)

Louisville Metro removed this case to this Court. (DN 1.) In doing so, Louisville Metro represented that “[u]pon information and belief, the Unknown Police Officer Defendants have not been served.” (Id. at PageID # 2.) Louisville Metro proceeded to file a Motion to Dismiss the sole claim against it (DN 5) that the Court ultimately granted on January 19, 2022. (DN 11.) Thus, Louisville Metro was dismissed as a Defendant in this case as of the date of entry of that opinion. Jennie Wright attempted to appeal pro se, but the Sixth Circuit ultimately dismissed her appeal for lack of jurisdiction. (DN 20.)

Back in this Court, Jennie Wright proceed to file a pro se discovery plan and Motion for Leave to File a Supplemental Pleading. (DNs 22, 24.) This pro se filing and the pro se attempted appeal prompted the Court to enter an order directing the Wrights' attorney of record “to explain his continued involvement in the case.” (DN 25.) In doing so, the Court noted that the only remaining Defendants in this matter, the unknown officers, remained unserved; therefore, the Court also ordered the Wrights' counsel to “SHOW CAUSE why the Plaintiffs' claims should not be dismissed under Rule 4(m) of the Federal Rules of Civil Procedure.” (Id.)

*2 The Wrights' former counsel filed a response indicating that after the Court's January 19, 2022, opinion was entered, “Plaintiffs sought to take over the claim” and proceed pro se, discharging counsel. (DN 26.) Counsel indicated that he should have filed a motion to withdraw at that point but had failed to do so and tendered an order to formally withdraw with his response. (Id.)

The Court held a telephonic status conference in this matter on January 10, 2023, that was attended by Jennie Wright, her former counsel, and counsel for Louisville Metro. (DN 28.) Her former counsel made an oral motion to withdraw that the Court granted. (Id.) The Court proceeded to warn Jennie Wright of the dangers and disadvantages of proceeding pro se as well as the fact that she would not be permitted to speak for Saul Wright going forward in this action since she was not a lawyer. (Id.) After hearing the Court's warnings, Jennie Wright advised the Court that she would attempt to get a lawyer, and the Court set a deadline for the Wrights' new counsel to enter an appearance in this case or for the Wrights to notify the Court that they intended to proceed pro se. (Id.)

Prior to the expiration of that deadline, Jennie Wright filed a Motion for Summary Judgment and in the Alternative For a Settlement Conference. (DN 29.) It was not clear to the Court whether Jennie Wright intended that motion to serve as notification that she would proceed pro se; therefore, the Court allowed its previous deadline for the Wrights to obtain new counsel to expire and set a telephonic status conference for shortly thereafter. (DN 31.) The Court then held a telephonic status conference on February 10, 2023, that was attended by Jennie and Saul Wright and counsel for Louisville Metro, the latter of whom indicated that he was specially appearing. (DN 32.) The Wrights indicated that they intended to represent themselves moving forward. (Id.) Counsel for Louisville Metro indicated that he did not represent the unknown officers in this matter. (Id.) Thus, the Court instructed the Wrights to determine the necessary next steps to get this action moving forward and set them a deadline of April 11, 2023, to take any necessary action. (Id.)

On March 20, 2023, the Wrights filed a “Motion to Compel the Requested Information Relevant to Plaintiffs[‘] Case.” (DN 34.) In it, they indicated that they sent an open records request to attempt to obtain the names of the police officers who searched their house but that the Louisville Police Records Department refused to cooperate and said those records did not exist. (Id.) The Wrights requested that the Court “enter any and all orders requiring the record custodian to provide the four officers full names and to set a date for a settlement conference.” (Id. at PageID # 148.) Louisville Metro, again specially appearing, filed a combination response to Plaintiff's Motion to Compel and Motion for Protective Order. (DN 36.) Louisville Metro argued that this Court was without jurisdiction to compel a response to an open records request and requested that the Court issue a protective order as to requests for admission served by the Wrights on Louisville Metro's counsel directed to the unknown officers. (Id.) The Wrights did not file a reply. The Motion to Compel (DN 34) was the only action taken by the Wrights prior to the expiration of the April 11, 2023, deadline for moving this action forward. (DN 32.)

*3 The Court will now address the pending motions and the general status of the case below.

II. Motion for Leave to File Supplemental Pleading (DN 24)

Though captioned a Motion for Leave to File Supplemental Pleading, Jennie Wright's motion actually requested leave to take discovery before the Parties' Rule 26(f) conference.[1] (DN 24.) In support, she argued that relief from the general rule on the timing of discovery is appropriate “where it is necessary to preserve testimony or other evidence” and “where limited discovery would facilitate early settlement.” (Id. at PageID # 116.)

Fed. R. Civ. P. 26(d) provides that no party may seek discovery until the Parties have conferred as required by Fed. R. Civ. P. 26(f) except “when authorized by these rules, by stipulation, or by court order.” Fed. R. Civ. P. 26(d). The Court finds that it is appropriate to authorize the Wrights to engage in discovery prior to the Rule 26(f) conference to permit them to discover the names and service addresses of the unknown officer defendants so that this case can begin moving forward. Thus, Jennie Wright's Motion for Leave to File Supplemental Pleading (DN 24) will be construed as a motion for leave to take early discovery and granted.

III. Motion for Summary Judgment and in the Alternative for a Settlement Conference (DN 29)

The Wrights' Motion for Summary Judgment and in the Alternative for a Settlement Conference (DN 29) contains a number of arguments related to the merits of the case but does not acknowledge that there is no defendant this case who has been validly served with process against whom the Court could grant summary judgment at this stage. As the Wrights' merits arguments are therefore premature, the undersigned will not address the same by recommendation and will instead construe the Wrights' motion solely as one for a settlement conference. While the undersigned is generally available to have a settlement conference whenever there is interest, as the undersigned explained during a prior status conference, the Court cannot have a settlement conference where there are not at least two parties before it between whom to settle claims. Thus, any settlement conference would also be premature until the Wrights have validly served any defendant with process so as to bring him or her before this Court. For these reasons, the Wrights' Motion for a Settlement Conference (DN 29) will be denied without prejudice.

IV. Motion to Compel (DN 34) and Motion for Protective Order (DN 36)

The Wrights' Motion to Compel (DN 34) stated in support that they served an open records request upon the Louisville Metro Police Department (“LMPD”) seeking the full names of the officers who participated in the search of the Wrights' home. The response the Wrights received was that “such records do not exist.” Accordingly, the Wrights asked the Court “to enter any and all orders requiring the record custodian [for LMPD] to provide the four officers['] full name[s].”[2] (Id. at PageID # 148.) The Wrights also stated that their DVR camera was seized during the search, and they requested the Court “enter an order for the return of the DVR camera.” (Id.)

*4 Dismissed Defendant Louisville Metro filed a response to the Wrights' Motion to Compel and a Motion for Protective Order. (DN 36.) As to its response, Louisville Metro argued that the Court is without jurisdiction to address any violation of Kentucky's Open Records Act. As to its motion for protective order, Louisville Metro stated that the Wrights served upon Louisville Metro's counsel requests for admission related to admissions sought by the Wrights from the unknown officer defendants. Louisville Metro contended that this was improper and a protective order was appropriate because if unanswered, requests for admission are deemed admitted. Louisville Metro contended such a result here was unfair given that the unknown officer defendants have never been served with process in this case.

The Federal Rules of Civil Procedure govern discovery in this action. They permit parties to take discovery about “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case” by certain specific methods specified in Fed. R. Civ. P. 27-36. Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 27-36. Some methods are only available when the person from whom discovery is sought is a party to the action such as interrogatories served under Fed. R. Civ. P. 33, requests for production of documents under Fed. R. Civ. P. 34, physical and mental examinations under Fed. R. Civ. P. 35, and requests for admission under Fed. R. Civ. P. 36. Others, such as depositions by either oral examination or written questions under Fed. Civ. P. 30-31 and subpoenas under Fed. R. Civ. P. 45, may be served on non-parties. Where a party or non-party has failed to comply with obligations under any of these rules, the serving party may seek relief under Fed. R. Civ. P. 37(a) for the failures described therein or under Fed. R. Civ. P. 45(g) where a person fails without adequate excuse to obey a subpoena.

The Wrights' Motion to Compel does not indicate that they availed themselves of any method of discovery permitted by the Federal Rules of Civil Procedure or redressable by the Court under either Fed. R. Civ. P. 37 or 45. Instead, they served a request pursuant to Kentucky's Open Records Act, KRS §§ 61.870-61.884. To the extent that the Wrights have complaints about how their request was resolved, their remedy, if any, lies in state court. KRS § 61.882(1) provides, “The Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained shall have jurisdiction to enforce the provisions of KRS 61.870 to 61.884, by injunction or other appropriate order on application of any person.” KRS § 61.882(1). And KRS § 61.880 provides a process by which a complaining party may ask the Kentucky Attorney General for review of a denied open records request. In citing these provisions, the Court is not determining that the Wrights have established any violation of the Open Records Act justifying relief, but the Court does find that these provisions establish that any remedy for any violation of the Act can only be pursued in state court. Thus, it would be improper for the Court to grant the Wrights the relief they seek, and the Wrights' Motion to Compel will be denied as it does not seek relief that is grantable by this Court.

As to Louisville Metro's request for a protective order, the Court will grant the request. Though the Court understands to some extent why the Wrights might have thought their action was proper given Louisville Metro's continued special appearance in this action after their dismissal, counsel for Louisville Metro has said repeatedly that he is just that—counsel for Louisville Metro—not counsel for the unknown officers. Thus, the Wrights cannot serve requests for admission on counsel for Louisville Metro to be answered on behalf of those individuals. Any requests for admission would have to be served upon the individual officers. As the Wrights have not done so, Louisville Metro's Motion for Protective Order (DN 36) will be granted in so far as the Court deems the attempted service of the requests for admission ineffectual to trigger any duty to respond by the unknown officers or anyone on their behalf. The Wrights are also cautioned that because Louisville Metro is no longer a party to this case, they cannot seek discovery from Louisville Metro except as would otherwise be permitted by the rules governing discovery to a non-party.

*5 While the Court understands that the Wrights are not lawyers and are attempting to navigate the best way to obtain the information they seek, they were cautioned by the Court that they would be subject to the Federal Rules of Civil Procedure before they agreed to proceed pro se. The Court cannot give them legal advice about the best way to proceed or about how to get the information they seek under the Federal Rules of Civil Procedure, and nothing herein should be construed by the Wrights as legal advice on that point.

V. Case Status Generally

This leaves the Court to address the status of the action generally. As the Court warned the Wrights during its February 10, 2023, status conference, this action cannot move forward unless the Wrights find and validly serve a defendant with process. While the Wrights' Motion to Compel (DN 34) evidences that they took some steps to attempt to advance this matter, they still have not amended their Complaint to name specific officers against whom to pursue their claims or served those officers with process. This action cannot proceed until they do so. Thus, the Court will give the Wrights approximately an additional ninety days to attempt to discover the names of the individual officers against whom they wish to pursue claims and to take steps to amend their pleadings and accomplish service on those individuals. While the Wrights may request extensions of this deadline, the Court cannot say at this time whether it will look favorably on such requests given the age of the case and the amount of time the Wrights have already had to correct these issues. Thus, the Wrights are advised to make all diligent efforts to comply with the deadline set below.

Further, the Court notes that there is an additional procedural issue that must be addressed moving forward. When this action was filed, it was filed by the Wrights on their own behalf and as next friend of their minor children. While Jennie Wright and Saul Wright may proceed pro se in this action, they cannot proceed pro se in their capacity as next friend for their minor children. As the Sixth Circuit has explained, “Although 28 U.S.C. § 1654 provides that ‘[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel,’ that statute does not permit plaintiffs to appear pro se where interests other than their own are at stake.” Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (quoting 28 U.S.C. § 1654 and citing Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)). Thus, “parents cannot appear pro se on behalf of their minor children because a minor's personal cause of action is her own and does not belong to her parent or representative.” Id. (citing Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)). Therefore, the Wrights cannot proceed pro se on their children's' behalf. Given the representation as to their children's' ages in the Complaint, the Court finds it probable that one or both children has reached age eighteen by now. If so, the Wrights' now-adult children can join in this action as pro se plaintiffs themselves. But the Wrights' Complaint also indicated that their children might have developmental disabilities, and the present record is insufficient to clarify for the Court whether the referenced disabilities would render the Wrights' children incompetent, as that term is legally and not generally defined, to represent themselves pro se in this action.[3] Thus, the Court will require the Wrights to file a status report regarding these issues. Specifically, the Wrights should address whether their children have reached adulthood; if their children have reached adulthood, the Wrights should address whether their now-adult children lack the ability to make informed decisions about their personal affairs or to care for their physical health and safety; and if their children either have not reached adulthood or do have some lack of decision-making ability, the Wrights should address what plans they have to either hire an attorney to represent their children or if they plan to otherwise dismiss the claims of their minor children in this action. Depending on the content of the Wrights' report, the Court will take the action it deems necessary under Fed. R. Civ. P. 17(c) including potentially setting a status conference to discuss these issues.

VI. CONCLUSION AND ORDER

*6 For the reasons set forth above, IT IS HEREBY ORDERED as follows:

cc: Counsel of record, Pro se Plaintiffs

April 27, 2023

Appeal of this Order is subject to the terms and time limitations of Fed. R. Civ. P. 72(a) and L.R. 72.2.