Opinion
95 Civ. 9717 (WK)
June 10, 2002
For Plaintiff: Anna A. Cox, Rosedale, NY; Joshua Friedman, Law Offices of Joshua Friedman Larchmont, NY.
For Defendants: Peter A. Walker, New York, NY.
ORDER
Plaintiff Anna Cox ("Plaintiff") is directed to contact her attorney, Joshua Friedman, on or before June 14, 2002 at The Law Offices of Joshua Friedman, 25 Senate Place, Larchmont, New York 10538, (212) 308-4338, in order to discuss the status of this case (including settlement). If Plaintiff fails to contact her attorney by June 14, she is hereby ordered to appear, in person, in Room 1201, 40 Foley Square, New York, N.Y. on June 20, 2002 at 11:30 a.m. for a conference on the status of her case. At the conference, she should be prepared to discuss, among other matters, the settlement agreement prepared and reviewed by both her own counsel and Defendants' counsel. If Plaintiff either fails to contact her attorney within the foregoing timeframe or fails to appear at the status conference on the foregoing date, we may need to direct her to submit to a psychiatric examination in order to determine whether a guardian should be appointed to represent her interests. 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. Hence, "[w]hen the competency of a party is raised, a court may require that party to submit to a psychiatric examination, so that the court may have medical facts on which its decision on the necessity of appointing a guardian ad litem can be based." Id. at 432. See also Neilson v. Colgate Palmolive Co. (S.D.N.Y. Aug. 15, 1997) 1997 WL 471050, *1; Seift v. Swift (E.D.N.Y. 1974) 64 F.R.D. 440, 442-443. If an examination becomes necessary, then the Defendants will be directed to submit to this Court by no later than July 10, 2002 a draft order setting forth the exact date, time, place, manner, conditions, and scope of such a psychiatric examination and the person by whom it is to be made. The proposed order would also indicate which party (or parties) shall bear the cost of this examination and that the person conducting such an examination would by August 30, 2002, submit his or her report solely to the Court for review in the first instance. Plaintiff's failure to submit to or appear at such an examination would result in the dismissal of her case without prejudice. See Krain v. Smallwood (9th Cir. 1989) 880 F.2d 1119, 1121 ("When the party refuses to cooperate [with a hearing into her competency], the court may dismiss the case without prejudice"); Bodnar v. Bodnar (5th Cir. 1971) 441 F.2d 1103, 1104 (affirming a dismissal without prejudice where the plaintiff refused to submit to a mental examination to determine whether she was competent); Cyntje, 95 F.R.D. at 432. See also Neilson, 1997 WL 471050 at *1. Plaintiff would be permitted to submit objections to such a draft order by no later than July 22, 2002, after which the Court shall issue a final order regarding the psychiatric evaluation of Plaintiff.
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 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.