Opinion
95 Civ. 9717 (WK)
June 21, 2002
Anna A. Cox, Rosedale, NY, Joshua Friedman, Law Offices of Joshua Friedman, Larchmont, NY, For Plaintiff.
Peter A. Walker, Seyfarth Shaw, New York, NY, For Defendants.
ORDER
Plaintiff's counsel has raised the question of whether Plaintiff is competent to continue litigating this case. Federal Rule of Civil Procedure 17(c) invests this Court with the authority to conduct an inquiry regarding the litigant's competency. Cyntje v. Government of the Virgin Islands (D. Vi. 1982) 95 F.R.D. 430, 431-432.
Federal Rule of Civil Procedure 17(c) provides in pertinent part that "[t]he court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person." FED.R.CIV.P. 17(c).
The preferred procedure when a question exists regarding the mental competence of a party is for the district court to conduct a hearing to determine whether or not the party is competent, so that a representative may be appointed if needed. Krain v. Smallwood (9th Cir. 1989) 880 F.2d 1119, 1121. See also Bodnar v. Bodnar (5th Cir. 1971) 441 F.2d 1103, 1104 ("A trial court is not powerless to ascertain whether a litigant is competent and, if it finds that he is not, to appoint a guardian ad litem.") When the party refuses to cooperate in that determination, however, the court may dismiss the case without prejudice. Krain, 880 F.2d at 1121.
In this instance, we find, both from the Plaintiff's own actions and her attorney's statements, that a substantial question exists with respect to the Plaintiff's competency. Accordingly, the Plaintiff is directed to appear before this Court on Tuesday, September 24, 2002 at 11:00 a.m. at Room 1201, 40 Foley Square, New York, New York, so that we may conduct an inquiry into her competency. If Plaintiff needs to arrange for the inquiry to be held on a different date or at a different time, she should contact the Court at (212) 805-6165 and the Court will accommodate her request. If Plaintiff does not contact this Court to make such arrangements and thereafter fails to appear before this Court at the date, time, and location described above, then her failure to do so will result in the dismissal of her case without prejudice. See Krain, 880 F.2d at 1121. See also Bodnar, 441 F.2d at 1104; Cyntje, 95 F.R.D. at 432; Neilson v. Colgate Palmolive Co. (S.D.N.Y. Aug. 15, 1997) 1997 WL 471050, *1.
The United States Marshals are hereby directed to serve a copy of our order herein on Plaintiff herself (and not on her attorney of record) via personal service. SO ORDERED.