ORDER REGARDING MOTION TO DISQUALIFY AND MOTION TO SUBSTITUTE

(Doc. Nos. 167, 178)

ANTHONY W. ISHII, District Judge.

Currently pending and set for hearing on May 13, 2019, are Plaintiffs' motion to substitute Dennis Elkins (as the executor of Cecil Elkins, Sr.'s estate) for decedent Cecil Elkins, Sr. and Defendant's motion to disqualify Dennis Elkins as the guardian ad litem for two minor plaintiffs.1 Defendant's motion and opposition to Plaintiffs' motion to substitute are based on allegations that Dennis Elkins has committed fraud against minor-Plaintiffs Devin Elkins and Dylan Elkins in the probate proceedings of Cecil Elkins, Sr.

On April 22, 2019, Plaintiffs filed a notice of non-opposition to Defendant's motion to disqualify Dennis Elkins. See Doc. No. 183. The notice states that, although Dennis Elkins denies that he engaged in fraudulent conduct towards the minor plaintiffs in the probate proceedings, he nevertheless wishes to recuse himself. See id. Plaintiffs state that an application to substitute the guardian ad litem will be filed separately. See id.

On April 29, 2019, Plaintiffs filed a notice of withdrawal of the motion to substitute. See Doc. No. 185. The notice states that Plaintiffs intend to dismiss Cecil Elkins, Sr.'s claims against Defendant with prejudice and thus, withdraw their motion. See id.

Discussion

With respect to the motion to substitute parties, the Court accepts Plaintiffs' withdrawal. However, in light of the representations made in the notice of withdrawal, the Court will set a deadline for Plaintiffs to file dismissal papers or motion to dismiss the claims of Cecil Elkins, Sr. from this case.

With respect to the motion to disqualify, the allegations against Dennis Elkins are serious and raise significant questions over Mr. Elkins's suitability to act as a guardian ad litem. However, as explained above, Plaintiffs' response states that Mr. Elkins denies the allegations against him and that Mr. Elkins seeks to recuse himself. Given the non-opposition to the request to disqualify, the Court need not determine whether Mr. Elkins has actually engaged in fraud. It is enough to disqualify Mr. Elkins based on the non-opposition filed by Plaintiffs. As with the motion to substitute, Plaintiffs will be given a deadline in which to file a motion to appoint a new guardian ad litem for minor-Plaintiffs.

ORDER

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to substitute (Doc. No. 168) is DENIED as WITHDRAWN;

2. Defendant's motion to disqualify Dennis Elkins from serving as the guardian ad litem for minor-Plaintiffs Devin Elkins and Dylan Elkins (Doc. no. 178) is GRANTED as unopposed;

3. Dennis Elkins is REMOVED as the guardian ad litem for minor-Plaintiffs Devin Elkins and Dylan Elkins;

4. Within fourteen (14) days of service of this order, Plaintiffs shall file:

IT IS SO ORDERED.