Francine M. Neilson v. Colgate-Palmolive Company and Colgate Palmolive S.A. De C.V.

Judge SOTOMAYOR dissents in part in a separate opinion.

JACOBS, Circuit Judge and SAND, District Judge':

Francine Neilson brought. suit in the United States District Court for the Southern District of New York (Rakoff, /.), alleging sex and race discrimination on the part of her former employers, Colgate-Palmolive Company and Colgate Palmolive S.A. de C.V. (collectively, “Colgate”). The district court appointed a guardian ad li-tem for Neilson, who (it was learned) had been committed to psychiatric hospitals. The guardian ad litem negotiated a settlement on Neilson’s behalf, the court approved the settlement, and judgment was entered dismissing the action with prejudice.

Neilson appeals through a general guardian who was subsequently appointed in state court. Neilson challenges the district court’s (1) appointment of the guardian ad litem; (2) approval of the settlement; and (3) refusal to delay settlement consideration until after the appointment of the general guardian.

Colgate has moved to dismiss the appeal on the ground that the general guardian lacks standing.

*646We conclude that the general guardian has standing, and we affirm.

BACKGROUND

Neilson is a certified public accountant who was hired by Colgate in 1980 as a staff auditor in its New York Auditing Department. She was promoted to Audit Supervisor in 1982, and to Audit Manager in 1984. In February 1987, she was transferred to a Colgate subsidiary in Mexico, where she became the Director of Operations and Systems Analysis.

Neilson worked in Mexico for six years. Toward the end of that time, she voiced frustration to management about her career path.

In August of 1993, Neilson was transferred back to New York and assigned the temporary job of assessing operations. According to Neilson, this was an interim arrangement pending a permanent position. According to Colgate, Neilson was told that she would be fired unless, within six months, she interviewed for a permanent position at Colgate and was offered one.

In February 1994, Colgate offered Neil-son an unsolicited severance package. At or about the same time, Colgate identified four positions at Colgate for which Neilson could interview. Neilson told Colgate that none of the four positions were commensurate with her skills and abilities, but she agreed to interview for one of the slots, which was in Colgate’s Household Surface/Fabric Care Department.

Later that month, Neilson filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging sex and race discrimination.

After her interview in the Household Surface/Fabric Care Department, Neilson met with Michelle Mayes of the Human Resources Department. It is undisputed that Mayes offered Neilson three options: she could either (1) accept the position at Household Surface/Fabric Care and drop the EEOC charge; (2) take the severance package and drop the EEOC charge; or (3) be fired. Mayes testified that she also advised Neilson that she was not the best candidate for the position, but that the job was being offered only as “an accommodation ... provided in exchange she dropped her EEOC charge.” Mayes’s memo to Neilson after the meeting reiterated Colgate’s position, i.e., that Colgate was offering her the position in the Household Surface/Fabric Care Department as a “final special accommodation,” notwithstanding its determination that she was “not the most qualified candidate for the position.”

Neilson decided to pursue the EEOC charge, and so advised Mayes by letter on May 23, 1994. On May 31, 1994, Neilson was fired.

Neilson filed suit against Colgate in the Southern District of New York, alleging, among other things, that Colgate had (1) taken adverse employment actions against her because of her sex and race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg., as well as New York’s Human Rights Law, N.Y. Exec. Law § 290 et seq.; (2) failed to respond to her complaints of a sexually hostile work environment; and (3) retaliated against her for filing the EEOC complaint, also in violation of Title VII and New York’s Human Rights Law.

Colgate moved for partial summary judgment in February 1996. Neilson’s lawyers, Vladeck, Waldman, Elias & En-gelhard, P.C. (“the Vladeck firm”), filed opposing papers. Soon after, however, the Vladeck firm filed a sealed motion to withdraw as counsel. According to Magistrate Judge Theodore Katz, with whom the motion was lodged, the firm believed that its deteriorating relationship with Neilson would impair its effective representation. Judge Katz granted the motion to withdraw in February 1997.

On June 3,1997, the district court granted partial summary judgment in favor of Colgate. Neilson’s remaining claims alleged discrimination based on sex and *647race, as well as retaliation for filing the EEOC charge.

At some point, Colgate’s counsel learned that Neilson had been involuntarily committed to psychiatric hospitals after she left Colgate. At a pretrial conference on July 9, 1997, Colgate advised the court that it had recently discovered Neilson’s psychiatric history and announced that it was giving consideration to a motion for appointment of a guardian ad litem.

The following week, Colgate moved under Federal Rule of Civil Procedure 35 for an order directing Neilson to submit to a psychiatric examination. Under Federal Rule of Civil Procedure 17(c), Colgate also sought the appointment of a guardian ad litem for Neilson if that proved necessary.

Neilson — who was appearing pro se following withdrawal of her counsel — responded that she was “sufficiently competent to make rational decisions,” that no “guardian [wa]s needed to handle her every day thinking processes,” and that what she did need was appointed counsel: “Because Neilson is sufficiently competent to make rational decisions does not mean that she is also sufficiently competent to act in the capacity of an attorney before the court.” She concluded:

Court has the ability to provide protection of incompetent person. Neilson may consider such an appointment to be beneficial such that these type events do not reoccur. The appointment of legal counsel is also required under the circumstances, and urge the court’s attention to the matter, allowing Ms. Neilson relief.

On August 15, 1997, the district court found that it was in Neilson’s best interests to submit to the psychiatric examination, and told Colgate to prepare a draft order “setting forth the exact date, time, place, manner, conditions, and scope of the examination and the person by whom it is to be made,” directing Colgate to fund the cost, and warning that failure by Neilson to submit to the examination would result in “dismissal of her case with prejudice.” Colgate submitted such an order and the district court signed it.

Dr. Sydney Pulver reported to the district court on September 5, 1997 that Neilson was experiencing a “major delusional system,” one that appeared to have begun prior to her departure from Mexico. According to Dr. Pulver, Neilson believed that “[sjome group” was “attacking [her] and [her] family 24 hours a day, 7 days a week, 52 weeks a year,” and she “hinted” that Colgate-Palmolive and its law firm were responsible for the campaign against her. Dr. Pulver’s diagnosis was “a severe Chronic Paranoid Disorder,” and his recommendation was that she “be found incompetent to pursue the current litigation.” Dr. Pulver added that Neilson herself had requested “that a Guardian be appointed to pursue the litigation for her.”

On September 10, 1997, the district court directed the parties to appear at a September 18, 1997 hearing “for the purpose of considering [Dr. Pulver’s] recommendation.” The order provided that Neilson could consent to the appointment of a guardian ad litem by submitting a written declaration to that effect no later than September 15,1997.

Neilson responded to this invitation in a letter dated September 15,1997:

In response to Order of September 10, 1997,1 again consent to the appointment of a guardian ad litem in addition to an attorney and the protection necessary to ensure that I am able to be free of harassment, intimidation, collateral attacks, mental, physical and emotional abuse such that I can live. As I have said repeatedly, I fear for my life. And, I am not competent to litigate this case.

At the September 18 conference, the district court appointed James Niss, Esq., as guardian ad litem. The court cited its reliance “on [Dr. Pulver’s] report, [Neil-son’s September 15] consent, the other papers submitted, and also [the court’s] *648own independent finding that the plaintiff is not competent to proceed without the assistance of a guardian ad litem.” The court ordered Colgate to pay the first $10,-000 of the guardian’s fees,1 and told Niss to report back on or before October 27, 1997 “as to whether this matter should proceed promptly to trial, [or] whether other steps are appropriate.”

In a subsequent letter, Neilson suggested to the court that she had consented to the guardian’s appointment because she feared that her case would otherwise have been dismissed:

For fear of having the case dismissed, ProSe plaintiff agreed to the ad litem as well as to an attorney and protection because she feared for her life asking the Court to use [its] broad discretionary powers in following Rule 17(c).

At the October status conference, Niss advised that settlement talks were under way, and the court granted an adjournment. At the November status conference, Niss and Colgate reported that a settlement had been reached and would be sewn up within the next two weeks. Also present at the conference was Jose Luis Torres, Esq., counsel to Neilson’s son, who advised that he had filed a petition in the Supreme Court of the State of New York, New York County, seeking the appointment of a general guardian for Neilson. Under New York law, a general guardian has the authority “to act on behalf of an incapacitated person in providing for personal needs and/or for property management.” N.Y. Mental Hyg. Law § 81.03 (McKinney 1996).

On January 13, 1997, Niss moved for court approval of the settlement. Niss’s declaration described his investigations on Neilson’s behalf, and opined that “Neilson had no viable case under the civil-rights laws,” in part because (as Niss had concluded from consulting Dr. Pulver2) the onset of Neilson’s mental illness was no later than 1993 — prior to Neilson’s departure from Colgate. Niss was concerned that, as a result of the illness, Neilson had been unable to do her job at Colgate, and that the allegations in Neilson’s complaint were “the product of [her] illness,” a fact which, he stated, “would be apparent to the jury if Ms. Neilson’s claims were tried.” According to the Niss declaration, none of Neilson’s claims was “triable” because “Neilson is in no mental condition to testify and would not be a credible witness if she did.”

Niss concluded from his investigation, however, that Neilson had a viable claim for long-term disability benefits under Colgate’s group disability policy, although he anticipated that the circumstances and size of the claim were such that the insurer might contest it.

In light of all that, Niss negotiated the following settlement with Colgate: In exchange for a release of all of Neilson’s claims (including her statutory right to attorney’s fees), Colgate would “cooperate fully and use its best efforts to assist” with Neilson’s application for disability benefits, and would pay up to $50,000 of Neilson’s expenses of collection. Colgate also would pay Neilson $2,500 per month until disability payments commenced or Neilson turned 65, whichever came first. Neilson would in turn “assign to Colgate a portion of any retroactive lump-sum payment she receivefd] from [the insurer] equal to the *649total amount of the monthly payments made to her by Colgate.” Colgate also would furnish HMO medical coverage, and would pay Neilson a full disability pension beginning at age 65.

Niss expressed his view that the settlement was in Neilson’s best interests. “Unfortunately,” he added, he had been unable to resolve the claim by the Vladeck firm that Neilson owed approximately $136,000 in fees and expenses. According to Niss, the firm had refused to settle this claim, and was threatening to “assert a lien on the monthly payments and thereby impair the plan ... to provide a steady stream of income to Ms. Neilson for life.” Niss therefore asked the Court “to order that no attorney’s hen shall attach to the benefits flowing to Ms. Neilson under the Agreement.”

The district court also had the benefit of an affidavit of Judith Vladeck, Esq., which urged the court to deny Niss “any authority to interfere with [her] firm’s relationship with [its] former client” and to “defer any question concerning ... fees” until a general guardian could be appointed on Neilson’s behalf. As to the merits of Niss’s proposed settlement agreement, Vladeck believed that Neilson’s suit was viable, and recommended that the settlement be rejected so that a more favorable one could be reached. In support, Vladeck cited her firm’s expertise in employment cases, Colgate’s failure to move for summary judgment with respect to all of Neil-son’s supposedly delusional allegations, and the especially promising character of Neilson’s retaliation claim, which (she argued) alleged “precisely what the anti-retaliation provisionfs] of the law were intended to address: after filing an EEOC charge, Ms. Neilson’s continued employment was conditioned on her dropping the charge, a per se violation of Title VII.”

An affidavit filed by Torres on behalf of Neilson’s son advised that a petition for a general guardian had been granted, and that “a guardian of both the person and property of Francine M. Neilson [would] be appointed shortly.” Torres asked that the court withhold approval of the settlement until the guardian could determine whether it was in Neilson’s best interests, noting that Niss “lackfed] sufficient information about the plaintiffs current personal and financial situation” to make such a judgment. Torres later acknowledged that his client had not “take[n] a position with respect to the settlement” and had “indicated that it might very well be a perfectly good settlement for his mother.”

At a hearing on January 28, 1998, the district court heard argument on Niss’s motion to void the Vladeck firm’s attorney’s lien, as well as on the request that the approval of the settlement be delayed pending the appointment of a general guardian.

On February 18, 1998 — before the general guardian was appointed — the district court issued an opinion and order approving the settlement. See Neilson v. Colgate-Palmolive Co., 993 F.Supp. 225 (S.D.N.Y.1998). In the court’s view, the settlement served Neilson’s “best interests” and achieved “an eminently fair result.” Id. at 228. Having conducted an “extensive, independent review of the proposal,” the court agreed with Niss that Neilson was unlikely to succeed at trial, because Neilson’s claims “rest[ed] so crucially on the testimony of a plaintiff who is not only mentally unstable but who has repeatedly contradicted herself in proceedings before this very court.” Id.

The court denied Niss’s request that it void the Vladeck firm’s attorney’s lien, but expressed “doubts about the Vladeck firm’s putative claim” for fees and expenses and “retain[ed] exclusive jurisdiction over any claims against the plaintiff or her estate for fees and expenses arising out of this litigation.” Id.

Soon after the settlement was approved, the state court appointed Alfreida B. Kenny to serve Neilson as general guardian.

*650Neilson appealed the district court judgment, by Kenny as guardian and by the Vladeck firm as counsel.

DISCUSSION

A Standing

Colgate argues that the general guardian lacks standing to appeal on Neil-son’s behalf. Colgate relies on Garrick v. Weaver, 888 F.2d 687 (10th Cir.1989), in which the district court had found that a plaintiff mother had a conflict of interest with her co-plaintiff children, and appointed a guardian ad litem to represent the infants. See id. at 689-90. After settlement, both the guardian ad litem and the mother appealed. See id. at 690. The Tenth Circuit dismissed the mother’s appeal to the extent that it asserted claims on the infants’ behalf, on the ground that as a result of the guardian ad litem’s appointment, she lacked standing to prosecute those claims. See id. at 692-93; see also Hull v. United States, 53 F.3d 1125, 1126-27 (10th Cir.1995) (dismissing, for lack of standing, appeal brought by parents on minor child’s behalf where child’s guardian ad litem had chosen not to appeal); Susan R.M. v. Northeast Indep. Sch. Dist., 818 F.2d 455, 457-58 (5th Cir.1987) (concluding that father lacked standing to pursue action on minor plaintiffs behalf where he had allowed a state agency to become plaintiffs managing conservator).

Garrick stands for the (sound) proposition that only one party may act in a representative capacity with respect to an infant or incompetent who comes before the court. See Garrick, 888 F.2d at 693 (“Allowing two parties, the court-appointed guardian ad litem and Garrick, to represent the minor children interferes with the orderly development of the lawsuit....”). But this principle does not foreclose Neil-son’s general guardian from pursuing an appeal on her behalf.

Federal Rule of Civil Procedure 17(a) provides that “[e]very action shall be prosecuted in the name of the real party in interest.” Fed.R.Civ.P. 17(a). Before the general guardian was appointed (and notwithstanding Niss’s appointment as guardian ad litem), the real party in interest in this suit was Neilson. See 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1548, at 373-74 (2d ed. 1990) (“A guardian ad litem ... is a nominal party only; the ward is the real party in interest... .”). When Kenny was appointed as the general guardian, however, Kenny became the real party in interest. See N.Y. C.P.L.R. § 1004 (McKinney 1976 & Supp. 1999) (providing that a committee of the property of a judicially declared incompetent 3 “may sue or be sued without joining with him the person for or against whose interest the action is brought”); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, supra, § 1548, at 372 (“State substantive law usually provides that the general guardian of a minor or incompetent has the legal right to maintain an action in his own name for the benefit of his ward. Under a rule or statute of this type the general guardian is the real party in interest for purposes of Rule 17(a)....”). She therefore replaced Niss as Neilson’s representative.4 See Calla*651han v. New York Cent. & Hudson River R.R., 99 A.D. 56, 90 N.Y.S. 657, 659 (3d Dep’t 1904) (“We are of the opinion that the action- was properly commenced [by the guardian ad litem] on behalf of the infant, and that, a committee .of his property having since been appointed, the order substituting such committee as the party plaintiff in place of and on behalf of the infant, by his guardian, was right.”); 67 N.Y. Jur.2d Infants § 594, at 276-77 (1988) (“Since an action in favor of an incompetent may properly be commenced by his guardian ad litem, an order substituting the [general guardian] of an incompetent for his guardian ad litem ... need not be made nunc pro tunc as of the time of the commencement of the action. Rather, where a committee is subsequently appointed, he may be substituted at any time.” (footnotes omitted)); see also N.Y. C.P.L.R. § 1016 (McKinney 1997) (“If a party is adjudicated incompetent ..., the court shall order substitution of his [general guardian].”). Accordingly, we find that Kenny has standing to bring an appeal on Neilson’s behalf.

B. The Appointment of the Guardian Ad Litem

Neilson’s sole challenge to the district court’s decision to appoint a guardian ad litem concerns the procedures followed by the district court. Because a litigant possesses liberty interests in avoiding the stigma of being found incompetent, see Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), and in retaining personal control over the litigation, the Due Process Clause of the Fifth Amendment limits the district court’s discretion with respect to the procedures used before appointing a guardian ad litem. See Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Thomas v. Humfield, 916 F.2d 1032, 1033-34 (5th Cir.1990). To determine the amount of process due, we must weigh (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or different procedural safeguards; and (3) the government’s interest. See Abdullah v. I.N.S., 184 F.3d 158, 164 (2d Cir.1999) (citing Mathews, 424 U.S. at 334-35, 96 S.Ct. 893); see also Gilbert v. Homar, 520 U.S. 924, 931-32, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). We consider these factors bearing in mind the particular context of the decision to appoint a guardian ad litem. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.”).

Neilson argues that the district court was required to hold a formal, evi-dentiary hearing before appointing a guardian ad litem, and that it was required to provide her with a copy of Dr. Pulver’s report prior to that hearing. In proposing these additional safeguards, Neilson analogizes her case to Thomas v. Humfield, 916 F.2d 1032 (5th Cir.1990). In that case, the court reversed the district court’s dismissal of the case after appointing a guardian ad litem on the ground that the court’s failure to afford the plaintiff an opportunity to review the psychiatric reports or to argue or present evidence on the the need for a guardian *652violated the Due Process Clause. See id. at 1034. The analogy to Thomas is of distinctly limited utility to Neilson, because in Thomas the case was remanded for a new determination as to whether or not the plaintiff was incompetent and in need of a guardian, whereas Neilson, who is represented on appeal by her general guardian, does not contest her incompetence. The Fifth Circuit in Thomas emphasized that its holding did not “address a situation where a party is under an existing guardianship or has otherwise been judicially found to be incompetent.” Id. at 1033 n. 1. More fundamentally, however, we conclude that neither of the safeguards proposed (the pre-appointment hearing or the furnishing of Dr. Pulver’s report) is required by the Due Process Clause because of the availability of post-appointment review and because of Neil-son’s questionable competence at the time the decision was made.

1. Post-Appointment Safeguards

After appointing a guardian ad litem, a court maintains a continuing obligation to supervise the guardian ad litem’s work. See Dacanay v. Mendoza, 573 F.2d 1075, 1079 (9th Cir.1978) (“It is the court’s order approving the settlement that vests the guardian ad litem with the legal power to enforce the agreement.”); Noe v. True, 507 F.2d 9, 12 (6th Cir.1974) (“through a guardian ad litem the court itself assumes ultimate responsibility for determinations made on behalf of the [ward]”). The court may remove the guardian ad litem, see Hull v. United States, 53 F.3d 1125, 1127 n. 1 (10th Cir.1995) (noting that parties seeking to challenge the decisions of a guardian ad litem have a remedy of applying to the court to have the guardian ad litem removed); Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir.1989) (denying standing to legal representative after appointment of a guardian ad litem, reasoning that proper remedy is to petition the court for removal), or choose not to approve the guardian ad litem’s proposals, see Dacanay, 573 F.2d at 1079.

The record in this case reveals that the district court carefully reviewed Niss’s work and only approved his proposed settlement after making an independent finding that it was fair. See Neilson, 993 F.Supp. at 228. The district court also entertained requests made by Neilson and by counsel for her son to have Niss removed as guardian ad litem. Because the district court examined Neilson’s case after Niss’s appointment and had opportunities to remove Niss as guardian ad litem, we believe that dispensing with a formal hearing prior to appointing a guardian ad litem presents only a small risk of an erroneous deprivation. See Reeve Aleutian Airways, Inc. v. United States, 982 F.2d 594, 600 (D.C.Cir.1993) (finding risk of erroneous deprivation to be minimal when individual suffering deprivation had opportunity for follow-up contact with the decisionmaker) (citing Gray Panthers v. Schweiker, 652 F.2d 146, 169 (D.C.Cir.1980)); see also Gilbert v. Homar, 520 U.S. at 932, 117 S.Ct. 1807 (explaining that temporary deprivations subject to post-deprivation review require fewer pre-depri-vation protections).

2. Neilson’s Incompetence

At the time the district court was considering the appointment of a guardian ad litem, a genuine question existed as to Neilson’s competence. We believe that it was reasonable for the district court, in that circumstance, to decide that there would be little probable value to a formal, adversary hearing. See Goldberg v. Kelly, 397 U.S. 254, 268-69, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (“The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard.”); Gray Panthers v. Schweiker, 652 F.2d 146, 166 (D.C.Cir.1980) (explaining that adequacy of process is determined “with reference to the characteristics of the group who have to use it”).

We recognize, of course, that “particularly extensive efforts to provide *653notice may often be required when the State is aware of a party’s inexperience or incompetence.” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983) (citing Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13-15, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978); Covey v. Town of Somers, 351 U.S. 141, 146-47, 76 S.Ct. 724, 100 L.Ed. 1021 (1956)). But those “extensive efforts” are only required when there is some likelihood that they would be more effective than the procedures actually used. In Memphis Light, the Court required a utility company to explain the procedures available for challenging a bill in a way that could be understood by the company’s uneducated, inexperienced customers. See Memphis Light, 436 U.S. at 14 n. 15, 98 S.Ct. 1554. In the circumstances of this case, however, it was reasonable for the district court to conclude that, given Neilson’s mental state, there was no way it could provide an explanation that would have been suited to her condition. In Covey, the Court found notice of a foreclosure by publication in a newspaper to be unconstitutional with respect to a known incompetent. See Covey, 351 U.S. at 146-47, 76 S.Ct. 724. But Judge Rakoffs procedure in this case was far more protective of Neilson’s interests than mere publication of notice in a newspaper. The district court informed Neilson by written order that it was considering appointing a guardian ad litem and ordered an examination by an independent psychological expert. The district court weighed the expert’s report, its own interactions with Neilson, as well as the documentary evidence before finally deciding that a guardian ad litem should be appointed. Moreover, the district court considered conducting a hearing and only dispensed with it upon concluding that the submissions of the parties rendered it unnecessary. See von Bulow, by Auersperg v. von Bulow, 634 F.Supp. 1284, 1296 (S.D.N.Y.1986) (dispensing with hearing prior to appointment of “next friend” on ground that facts submitted to the court were sufficient to establish need for appointment).5

The enduring lesson of Memphis Light and Covey is that, when considering whether notice is “reasonably calculated, under all the circumstances” to inform the recipient of the nature of pending proceedings, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the mental capacity of the recipient is one of the circumstances to be considered. We believe that in light of the genuine question that existed as to Neilson’s competence, the notice (as well as other procedures) chosen by Judge Rakoff was reasonable and, therefore, did not violate the Due Process Clause. This is not to say that Judge Rakoff committed an error which was harmless in light of Neil-son’s incompetence, but that Judge Rakoffs personal observation of Neilson and his experience with her inconsistencies were such that the district court’s notice was reasonable and was therefore not erroneous.

For these reasons, we believe that neither providing Neilson with a copy of Dr. Pulver’s report nor providing more elaborate notice would have been of significant probable value in protecting Neilson’s interests and that no worthwhile purpose would have been served by conducting a formal, evidentiary hearing. On the other *654hand, to require the district court to conduct a formal, evidentiary hearing before appointing a guardian ad litem would consume a significant amount of judicial resources, cause delay, and accomplish little. Balancing these factors, we conclude that the risk of erroneous deprivation was low, given the procedures used by the district court, and that the probable value of the proposed additional procedures was limited. Although we fínd Neilsoris interests to be compelling, we do not believe the proposed additional safeguards would have offered sufficient protection of those interests as to justify another additional delay not only to the court system but to the furnishing of a remedy to Neilson, who was in need of immediate relief. See infra at 657. The Due Process Clause does not, therefore, require the district court to have used the proposed procedures before finding Neilson incompetent and appointing a guardian ad litem.

C. The Approval of the Settlement

In Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir.1995), we held that a district court’s decision to approve the settlement of a class action is reviewed for abuse of discretion. Among other reasons, we emphasized that the district court bears the “ultimate responsibility” for ensuring that the interests of vulnerable class members are vindicated and that the district court enjoys a “familiarity ... with the proceedings, the parties, and the performance of counsel.” Id. Those same considerations militate in favor of applying an abuse of discretion standard to a district court’s decision to approve the compromise of an incompetent’s claims, and we therefore do so here. See Dacanay v. Mendoza, 573 F.2d 1075, 1079 (9th Cir.1978) (“It is an ancient precept of Anglo-American jurisprudence that infant and other incompetent parties are wards of any court called upon to measure and weigh their interests.”). In exercising its discretion, the district court’s focus is to “determinfe] whether a proposed settlement is fair, reasonable, and adequate,” by comparing “the terms of the compromise with the likely rewards of litigation.” Maywalt, 67 F.3d at 1079 (citations and internal quotation marks omitted).

We do not find that the district court abused its discretion in determining that the settlement negotiated by Niss was fair, reasonable, and adequate when compared to Neiison’s likely recovery were she to have proceeded to trial. We believe that Neiison’s frequent inconsistencies and well-established paranoia would have created substantial obstacles for her at trial, including the risk that she would be unable to testify, or to do so with the necessary lucidity, or to cope with cross-examination. But even were we to grant, as Neilson urges, that Neilson might have overcome those obstacles either through the presentation of deposition testimony or by relying on statements made by Michelle Mayes of Colgate’s Human Resources Department in support of her retaliation claim, we nevertheless believe that the totality of the circumstances justifies the district court’s approval of the settlement. Assuming Neilson could prevail at trial, any recovery that she would receive would necessarily be delayed at least until a trial could be completed. Moreover, in calculating damages, the jury would be aware of Neiison’s mental disorder and of its early onset; those facts would certainly limit any potential recovery for lost wages and might diminish other forms of recovery as well. In view of these limited prospects for recovery from litigation, it was within the district court’s discretion to conclude that a settlement promising certain, immediate recovery of lifetime health care benefits and a pension income of approximately $30,000 per year was “fair, reasonable, and adequate.”6

*655Neilson also challenges the settlement on the ground that, wholly apart from the question of fairness, its approval was infected by procedural error. Neilson cites the Southern District’s Local Rule 83.2(a)(1): “The proceeding upon an application to settle or compromise ... an action [by or on behalf of an incompetent] shall conform, as nearly as may be, to the New York State statutes and rules, but the court, for cause shown, may dispense with any New York State requirement.” S.D.N.Y. R. 83.2(a)(1). By virtue of that local rule, Neilson argues, the district court was obliged to withhold settlement approval until Niss filed an affidavit containing all of the information required by § 1208 of the New York Civil Practice Law and Rules. See N.Y. C.P.L.R. § 1208 (McKinney 1997).

CPLR § 1208 requires that a proposed settlement of an incompetent’s action be accompanied by an affidavit from the incompetent’s representative providing eight pieces of information. See id. at § 1208(a). It is undisputed that Niss’s affidavit provided sufficient information with respect to five of those pieces of information—the name, age, and residence of the guardian and the ward, the circumstances giving rise to the action, the terms and proposed distribution of the settlement, and the facts surrounding any other motion or petition for settlement of the same claim. Neilson claims that Niss failed to provide the remaining three pieces of information: (1) the nature and extent of damages sustained by the incompetent; (2) whether reimbursement for medical or other expenses has been received from another source; and (3) whether a member of the incompetent’s family is asserting a claim.

Niss’s affidavit does, however, reflect the conclusion that Neilson “had no viable case under the civil-rights laws.” Niss also provides an analysis of a potential disability claim that he believed Neil-son possessed. When Neilson argues that Niss failed to include a description of the nature and extent of damages suffered by the incompetent, then, it seems that she is actually just expressing her disagreement with Niss’s conclusions. We find, therefore, that Niss did provide information regarding “the nature and extent of the damages sustained by the ... incompetent.” Id. at § 1208(a)(4). However, we agree with Neilson that Niss failed to include a statement about reimbursement or information regarding claims by Neilson’s family members. But these failures do not require this Court to vacate the district court’s approval of the settlement.

Rule 83.2 is hardly a rigid obligation imposed on district courts. The rule provides that “the court, for cause shown, may dispense with any New York State requirement” and that the court should follow the state procedure “as nearly as may be.” S.D.N.Y. R. 83.2(a)(1). Judge Rakoff explained that he was impressed by how quickly the federal guardian ad litem had been able to negotiate a favorable settlement for a plaintiff who had been denied relief for over four years. He also repeatedly expressed the particular need to resolve matters expeditiously given Neil-son’s frequent complaints that no one was trying to help her. Judge Rakoff attributed Niss’s success to “the swifter processes accorded under federal law to appoint a guardian ad litem unhindered by the limitations sometimes imposed by state law.” The district court then explicitly indicated that the need for these “swifter processes” was a “good cause” that had been “shown” for dispensing with state procedures and, on that basis, dispensed with them. That decision was not an abuse of discretion. *656While there appears to be some authority indicating that, as a matter of state law, failure to comply with § 1208 is grounds for refusing to approve a settlement, Neil-son cites no authority establishing that a federal court applying Rule 83.2 is required to reject any settlement that is not compliant with CPLR § 1208 in every particular.

D. The Refusal to Delay Approval of the Settlement

Neilson’s final argument is that the district court erroneously refused to delay its consideration of the settlement pending a ruling in state court on the application by Neilson’s son for appointment of a general guardian.

Neilson’s argument involves the interaction between Federal Rule of Civil Procedure 17(b) and § 1207 of the New York Civil Practice Law and Rules. The federal rule requires that a court determine capacity to sue by reference to the law of an individual’s domicile. See Fed.R.Civ.P. 17(b). The state rule provides that approval of a settlement must be sought by a general guardian rather than by a guardian ad litem. See N.Y. C.P.L.R. § 1207 (McKinney 1997); see also Tudorov v. Collazo, 215 A.D.2d 750, 627 N.Y.S.2d 419, 419-20 (2d Dep’t 1995) (reversing Supreme Court’s grant of guardian ad litem’s motion to settle on ground that “a guardian ad litem is not authorized to apply to the court for approval of a proposed settlement of a party’s claim”). Neilson argues that the district court was required under Rule 17(b) to adhere to the state rule and await appointment of the general guardian.

It is not clear that the limitation embodied in § 1207 relates to capacity. See Bryant v. Riddle, 259 A.D.2d 399, 687 N.Y.S.2d 108, 109 (1st Dep’t 1999) (Mem.) (stating that under New York law, “a person of unsound mind but not judicially declared incompetent may sue or be sued in the same manner as any other person” (citing Sengstack v. Sengstack, 4 N.Y.2d 502, 176 N.Y.S.2d 337, 341-42, 151 N.E.2d 887 (1958))). But assuming that it does, we conclude that the district court was not obligated to apply it, because “insofar as state law might be read to preclude the federal court from exercising its appointive power under Rule 17(c), it must give way, Rule 17(b) notwithstanding.” 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1571, at 511 (2d ed.1990).

Neilson argues in the alternative that the district court should have delayed settlement approval because, even if the court was not required to await the appointment of the general guardian, it should have respected the “strong preference” for representation by a general guardian expressed in both federal and state law. Neilson points to Federal Rule of Civil Procedure 17(c), which provides for representation of an incompetent by a guardian ad litem only in the absence of a general guardian. See Fed.R.Civ.P. 17(c) (“Whenever an ... 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 ... incompetent person. An ... incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem.”). For a similar preference in state law, Neilson relies on In re Legget’s Trust, 25 A.D.2d 727, 268 N.Y.S.2d 911 (1st Dep’t 1966), in which the Appellate Division reversed the trial court’s appointment of a guardian ad litem in part because, at the time of the appoint ment, the court “was aware that the appellant had a general guardian.” Id. 268 N.Y.S.2d at 913. Neilson also cites the limitation, embodied in § 1207, on a guardian ad litem’s ability to apply to a court for approval of a settlement.

Federal and state law defer to a general guardian where such guardian has already been appointed. At the same time, where a general guardian has not been appointed, such a preference would be inconsistent with Rule 17(c), which is struc*657tured as it is in order to allow a district court to ensure — through the appointment of a guardian ad litem — 'that a lawsuit by or against an incompetent can proceed notwithstanding the state court’s failure to appoint a general guardian.7 Cf. 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, supra, § 1571, at 511.

Once a district court that has already appointed a guardian ad litem for a litigant is informed of the impending appointment of a general guardian, the prudential question of whether to delay the course of the lawsuit pending arrival of the general guardian is addressed to the court’s sound discretion. Cf. County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1322-23 (2d Cir.1990) (reviewing for abuse of discretion district court’s refusal to allow party to participate in settlement of class action where participation would cause delay in course of lawsuit). We see no abuse of discretion here.

Neilson suggests that delay was needed because the general guardian — “who has responsibility for all of [her] affairs” — ■ would have had the ability to determine whether the settlement best served her particular needs. No doubt, a district court would do well to ascertain the views of a general guardian if possible, but the district court was free to weigh that advantage against circumstances that militated against delay.

The awaiting of the general guardian entailed a potentially long delay. Torres represented to the district court that, although the state court had decided to appoint a general guardian, it had yet to select someone to serve in that position, and that after selection, the general guardian would have to be qualified and bonded. Torres further conceded that the new general guardian could not be expected to weigh in on the proposed settlement without first “reviewing] what has transpired in federal court, reviewing] the settlement, and also analyzing] [Neilson’s] financial situation.” The adjournment sought by Neilson’s son was therefore open-ended. Although we know now that the general guardian was appointed less than two weeks after the settlement was approved, that fact is available to us only through hindsight. When Judge Rakoff approved the settlement it was reasonable to anticipate a significant delay before a general guardian would be in position to advocate Neilson’s interests. In the meantime, as the district court appreciated, see Neilson, 993 F.Supp. at 227-28, there was an offer on the table, and Nielson — who was evidently unable to work as an accountant — was, according to Dr. Pulver, apparently “living on financial handouts from friends and relatives” and “not eating regularly.” Judge Rakoffs decision to proceed was an entirely reasonable assessment of the circumstances and of Neilson’s needs.

Other than to suggest that her “values and wishes” would have been better served by a different result, Neilson has pointed to no particular interest that would have been better served had Niss (or a general guardian) taken a different course. Instead, acting through the Vladeck firm, she challenges Niss’s view of the merits of Neilson’s remaining claims. But the district court, which was presented with both views, concurred with Niss’s evaluation of those claims, and rejected as “conclusory, self-serving, and unreliable the claims by the Vladeck firm that the plaintiff they successfully sought leave to abandon actually has a good case (good enough, that is, to warrant their asserting a lien for attorneys’ fees).” Neilson, 993 F.Supp. at 228 n. 4. On this record, we see no reason to second guess that determination.

*658CONCLUSION

For the reasons set forth above, the judgment of the district court is affirmed.

. Cf. N.Y. C.P.L.R. § 1204 (McKinney 1997) ("A court may allow a guardian ad litem a reasonable compensation for his services to be paid in whole or part by any other party or from any recovery had on behalf of the person whom such guardian represents or from such person’s other property.”).

. In an affidavit also submitted by Niss, Dr. Pulver stated that, in his opinion, "Neilson's paranoid ideation was present early in her employment with Colgate and may have been present all of her life; ..., by 1993, it had consolidated into a full-blown paranoidal delusional system; and ... a delusional psychosis has persisted ever since, centering on Colgate but incorporating into it anyone else who impacts on her life.”

. According to the Practice Commentaries to § 1004, "incompetency and conservatorship proceedings [have been] abolished and replaced by Article 81 of the Mental Hygiene Law, which creates a unified proceeding for the appointment of a guardian for personal needs or property management of an incapacitated person.” Vincent C. Alexander, Supplementary Practice Commentaries § C1004:l (McKinney Supp.1999) (internal quotation marks omitted). The implementing legislation of Article 81 provides: " 'Wherever a statute uses the terms conservators or committees, such statute shall be construed to include the term guardian ... unless the context otherwise requires.’ ” Id. (quoting implementing legislation).

. Under Federal Rule of Appellate Procedure 43—"Substitution of Parties”—the general guardian was entitled to file the notice of appeal even though she had not previously been substituted for Neilson. See Fed. R.App. P. 43(b) ("If a party needs to be substituted *651for any reason other than death, the procedure prescribed in Rule 43(a) applies.”); id. 43(a)(2) (“If a party entitled to appeal dies before filing a notice of appeal, the decedent's personal representative ... may file a notice of appeal within the time prescribed by these rules.”). Moreover, the notice names both Kenny and Neilson. See Billino v. Citibank, N.A., 123 F.3d 723, 725-26 (2d Cir.1997). The general guardian has failed to file a motion for subslitution after filing the notice of appeal, but we are not thereby prevented from deciding this appeal. See Ciccone v. Secretary of Dep’t of HHS, 861 F.2d 14, 15 n. 1 (2d Cir.1988) ("[A]lthough no motion for substitution has been filed in this Court, we may proceed to decide [the] appeal.” (citing Fed. R.App. P. 43(a))). (Ciccone construed a prior version of Rule 43, but the subsequent changes were stylistic.)

. The district court relied heavily upon a finding that Neilson consented to the appointment of a guardian ad litem. See Neilson, 993 F.Supp. at 226. The authors of this opinion disagree as to the import of Neilson’s consent. Judge Sand has grave doubt as to the effectiveness of Neilson’s consent. Judge Jacobs would have affirmed on the following grounds: First, it cannot be assumed that a person with a mental disability necessarily lacks appreciation of her impairment or the capacity in lucid times to form opinions and contribute to decisions about what kind of help is needed. Second, the district judge had the opportunity to draw conclusions on this point on the basis of his own observations. In any event, the other considerations upon which the district court relied are adequate to support the validity of its procedure.

. The dissent (at 665) characterizes Neiison’s case as one that a lawyer would "leap” at, and notes (at 666 n.9) that one firm is willing "to forego fees for the remainder of the case,” *655and expresses puzzlement therefore at "the district court’s suggestion, echoed by the majority, [citation omitted] that counsel was motivated only by a desire to recoup her fees.” As it happens, that firm was once Neilson’s counsel of record on this case, and withdrew. Forswearing all fees for the ‘‘remainder of the case” does not of course mean that counsel would not collect, from any alternative settlement, fees for services previously rendered in the case. As to the motives of counsel, we have no view.

. Nor was the district court required by local rule to enforce § 1207’s limitations. See S.D.N.Y. R. 83.2(a)(1) ("The proceedings upon an application to settle or compromise ... an action [by or on behalf of an incompetent] shall conform, as nearly as may he, to the New York State statutes and rules, but the court, for cause shown, may dispense with any New York State requirement.” (emphasis added)).