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FORETICH v. GLAMOUR

April 3, 1990

ERIC A. FORETICH, VINCENT P. FORETICH, and DORIS FORETICH, Plaintiffs,
v.
GLAMOUR, CONDE NAST PUBLICATIONS, S.I. NEWHOUSE, JR., JUDITH COYNE, and BOB TREBILCOCK, Defendants


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 This tort action arises out of a highly-publicized dispute between divorced parents over their minor child. Plaintiffs originally filed the complaint in the Superior Court of the District of Columbia, but defendants removed it to this Court pursuant to 28 U.S.C. § 1441 by reason of diversity of citizenship under 28 U.S.C. § 1332. Defendants then moved for summary judgment or to dismiss on a number of grounds, and plaintiffs opposed. Subsequently, plaintiffs have moved for leave to file an amended complaint, seeking, inter alia, to add the minor child, Hilary Foretich, as a plaintiff and to allege post-complaint conduct by defendants. Defendants have opposed. The motions have been fully briefed.

 The original complaint alleges that statements relating to the dispute in an article written by defendant Bob Trebilcock and published in the November 1988 issue of Glamour magazine and additional statements in a letters to the editor section in the January 1989 Glamour injured the plaintiffs, Eric Foretich and his parents, Vincent and Doris Foretich. *fn1" Two claims were then alleged: (1) publication of false and defamatory material; and (2) invasion of privacy or "false light" defamation. *fn2"

 Plaintiffs' proposed amended complaint expanded the original complaint in several significant respects:

 First, the proposed amended complaint seeks to add Hilary Foretich, Eric Foretich's minor child, as a plaintiff, suing by Eric Foretich as her father and next friend.

 Second, the proposed amended complaint alleges that Glamour gave the Friends of Elizabeth Morgan, a group supporting Foretich's former wife, permission to "use" the original November 1988 Glamour article to create "a negative image" of Eric Foretich.

 Third, the proposed amended complaint seeks damages for statements in the December 1989 Glamour, which was published after the October 1989 filing of the original complaint.

 Fourth, the proposed amended complaint seeks to add a cause of action for intentional infliction of emotional distress for all plaintiffs.

 The Court will first address the motion to amend the complaint and add a plaintiff and then proceed to consider aspects of the summary judgment/dismissal motion.

 Motion to add Hilary Foretich as a plaintiff

 Plaintiffs' motion to add Hilary Foretich as a plaintiff must be denied. Pursuant to Fed. R. Civ. P. 21, parties may be added by order of the Court "on such terms as are just." Here it would not be just or appropriate to add Hilary Foretich as a plaintiff.

 Under D.C. law a custodial parent may bring a next friend suit. See Harmatz v. Harmatz, 457 A.2d 399, 401 (D.C. 1983). Defendants have produced Superior Court records indicating that Eric Foretich is not Hilary's custodian, and plaintiffs have not produced any authority indicating that the non-custodial parent may sue as next friend.

 Plaintiffs, in their reply brief ask the Court to appoint Eric Foretich as Hilary's guardian ad litem pursuant to Fed. R. Civ. P. 17(c). That provision states:

 
Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented ...

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