Opinion
04 Civ. 7413 (RCC).
January 12, 2005
MEMORANDUM ORDER
Pitney Hardin LLP, Frederick L. Whitmer, and Barry Mark Kazan ("Defendants") have moved for an order for a mental examination to determine Plaintiff Vincent P. Iannazzo's competency to pursue this suit. For the following reasons, the motion is GRANTED.
Plaintiff brought this suit alleging legal malpractice against Defendants, his former attorneys. Sometime in or after June 2004, Plaintiff was diagnosed with Major Depressive Disorder with psychotic features, for which he is being treated. In a related proceeding pending in New York Supreme Court, New York County, Plaintiff submitted a letter dated July 9, 2004, written by his treating psychiatrist, Dr. Ronald Brenner. Dr. Brenner asserted that Plaintiff is significantly incapacitated due to his clinical condition, and listed the symptoms from which Plaintiff suffers. Dr. Brenner further stated that it "is medically unadvisable for [Mr. Iannazzo] to participate in any type of business, financial or legal meetings or appointments for an indefinite period of time." (Letter from Ronald Brenner, M.D. of 7/9/04, Ex. A to Defs. Not. Mot.) In an affirmation dated October 26, 2004, Dr. Brenner stated that Plaintiff's condition has improved, but that he is concerned about Plaintiff's ability to handle the stress accompanying the lawsuit. While Dr. Brenner stated that Plaintiff has difficulty concentrating for more than fifteen minutes at a time, he suggested that Plaintiff has the ability to make reasoned judgments.
Federal Rule of Civil Procedure 17(c) provides 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." The legal capacity of an individual to sue in federal court is determined by the law of the individual's domicile; the parties agree that Florida is Plaintiff's place of domicile. Fed.R.Civ.P. 17(b). Plaintiff argues that under Florida law he is not incompetent to sue because he has not been declared such by a court, see Fla. Stat. Ann. § 744.102(11) (defining "incapacitated person"), and therefore there is no basis to order a mental evaluation. Not only is this argument circular, but it confuses the standard of competency that this Court must employ and the procedures which this Court should use to determine whether that standard is met. The former is a question of state law, but the latter is a matter of federal law. See Thomas v. Humfield, 916 F.2d 1032, 1035 (5th Cir. 1990) (holding that although the law of the state of domicile controls whether a person is competent to sue in federal court, federal-law procedures are to be used to make that determination). Under federal law, a mental examination is proper to determine whether a litigant is incompetent and requires a guardian ad litem. See Neilson v. Colgate-Palmolive Co., No. 94 Civ. 7643 (JSR), 1997 WL 471050, at *1 (S.D.N.Y. Aug. 15, 1997);Cyntje v. Gov't of the Virgin Islands, 95 F.R.D. 430, 431-32 (D.V.I. 1982).
Plaintiff further argues that a mental examination may only be ordered if his competency is "in controversy" within the meaning of Federal Rule of Civil Procedure 35(a). See Fed.R.Civ.P. 35(a) ("When the mental or physical condition . . . of a party . . . is in controversy, the court . . . may order the party to submit to a physical or mental examination. . . ."). It is unnecessary for the Court to decide whether Defendants' contention that Plaintiff lacks the legal capacity to prosecute this suit renders his competency "in controversy" under Rule 35(a) because the Court has the lesser authority to order a mental examination as part of its greater responsibility under Rule 17(c) to appoint a guardian ad litem to an incompetent litigant. See Cox v. Am. Stock Exch., No. 95 Civ. 9717 (WK), 2002 WL 1968290, at *1 (S.D.N.Y. June 10, 2002); Neilson, 1997 WL 471050, at *1; Cyntje, 95 F.R.D. at 431-32.
These cases dealt with Rule 17(c) as it applies to pro se litigants. However, the Rule empowers a district court to appoint a guardian ad litem to any incompetent person not represented by a full-time guardian. See Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 201 (2d Cir. 2003). Thus, the relevant question is whether the Court should appoint someone to represent Plaintiff's interest if he cannot do so himself. It may be that a lawyer will be sufficient to protect Plaintiff's interests in this case, but that is a matter best determined after an independent mental evaluation. See Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (noting that an incompetent person's interests may be adequately protected by an attorney and not require a guardian ad litem).
The Court agrees that the affirmation and letter of Plaintiff's psychiatrist raise significantly serious questions regarding Plaintiff's competency for the Court to order a mental examination by an independent expert. This order, however, in no way impairs Plaintiff's due-process right to contest the propriety of appointing a prochein ami, or next friend, should the examination suggest that one may be necessary. See Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 651 (2d Cir. 1999) (noting that a litigant possesses liberty interests in personal control of lawsuits and in avoiding the stigma of being declared incompetent). The Court will fashion such procedures as due process requires under the circumstances. See id. (noting that to determine the amount of process due under the Fifth Amendment, courts must consider the private interest affected, the risk of erroneous deprivation that the procedures used entail, the probable value of additional or different procedures, and the government's interest).
While Rule 17(c) provides for the appointment of a guardian ad litem, an appointed guardian to a plaintiff is called a next friend.Ferrelli, 323 F.3d at 198 n. 1. The duties and powers of both types of representatives are equivalent and therefore the terms are often used interchangeably. Id.
Plaintiff requests that the following conditions be imposed should the Court order an examination: (1) Defendants bear the costs of examination; (2) the examination should be audio taped; (3) counsel of both sides should have the opportunity to locate an independent expert; (4) the examination should take place in Florida, where Plaintiff resides; (5) the expert's report should initially be disclosed only to Plaintiff and to the Court. The first, third, and fourth requests are reasonable and are adopted by the Court; they second and fifth requests, however, are denied as they would only hamper the process. Plaintiff cites no authority for the proposition that disclosure of the results of a mental evaluation, whether ordered under Rule 35(a) or Rule 17(c), should be done ex parte. Both sides in this matter have an interest in ensuring that Plaintiff is competent before proceeding with this suit.Cf. Ferrelli, 323 F.3d at 203 (suggesting that a judgment entered against a mentally incompetent litigant may be subject to subsequent challenge). Therefore, both sides should have the opportunity to argue the significance of the expert's report to the Court. In addition, the Court believes that audio taping the examination would only serve to discourage full and free discussion between Plaintiff and the expert. Therefore, that request is also denied.
By February 28, 2005, the parties shall provide the Court with the name and credentials of an agreed-upon independent expert, or, if no agreement is possible, shall so inform the Court by that date, in which case the Court will appoint an expert of its choosing. The Court will then issue an order setting forth the particulars of the examination.
So Ordered.