United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided April 10, 2009
No. 00-7279
ELENA STURDZA,
APPELLANT
v.
UNITED ARAB EMIRATES, ET AL.,
APPELLEES
Consolidated with 06-7061, 06-7069
Appeals from the United States District Court
for the District of Columbia
(No. 98cv02051)
John A. King and Patrick James Attridge were on the
briefs for appellants Angelos Demetriou & Associates, et al.
Elena Sturdza, pro se, was on the brief for appellant
Elena Sturdza. Martin R. Baach entered an appearance.
Nathan Lewin and Alyza D. Lewin were on the brief for
appellee Nathan Lewin.
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Before: TATEL and BROWN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
PER CURIAM: During the course of an ongoing copyright
lawsuit, appellant Elena Sturdza behaved in a manner that led
her attorney to move for the appointment of a guardian ad
litem. Ms. Sturdza refused to submit to psychiatric
examination, and the district court appointed a guardian.
While we appreciate the difficulty Ms. Sturdza has caused by
failing to cooperate, we are compelled to remand for the
district court to give her clear notice and an opportunity to be
heard.
I.
As a result of a dispute over the design of the embassy
for the United Arab Emirates (UAE), Elena Sturdza, an
architect, sued the UAE for conspiracy to commit sex
discrimination, rival architect Angelos Demetriou and his firm
for several torts, and both sets of defendants for copyright
infringement and breach of contract. In 2002, we affirmed the
district court’s dismissal of Ms. Sturdza’s sex discrimination
claim, reversed the district court’s grant of summary
judgment as to her copyright claim and its dismissal of all her
other claims, and certified to the District of Columbia Court
of Appeals a licensing law question relevant to her breach of
contract claim. Sturdza v. U.A.E., 281 F.3d 1287, 1307 (D.C.
Cir. 2002). We retained jurisdiction pending the Court of
Appeals’ resolution of the certified question. Id. at 1308.
Even though our decision was largely favorable, Ms.
Sturdza, acting pro se and against her lawyer Nathan Lewin’s
advice, petitioned the Supreme Court for a writ of certiorari.
Sturdza v. U.A.E., 537 U.S. 810 (2002) (denying in forma
pauperis status); see also Sturdza v. U.A.E., 537 U.S. 1026
3
(2002) (denying reconsideration). Ms. Sturdza also accused
Mr. Lewin of participating in a conspiracy to sabotage her
case and mislead the court, and she refused to permit Mr.
Lewin’s former law firm to transfer the case file to him so he
could prepare her appellate brief on the certified question.
Citing this behavior, as well as his own interactions with Ms.
Sturdza and a series of pro se filings she had insisted on
making in this court, Mr. Lewin asked us to appoint a
guardian ad litem. Instead of resolving that issue ourselves,
we remanded the record for the district court to address the
question in the first instance.
After an initial status conference on July 10, 2002, the
district court referred the matter to a magistrate judge, who on
October 9 held a status conference at which Ms. Sturdza
refused to consent to psychiatric examination. The magistrate
judge then issued a report and recommendation that, relying
on the fact that Ms. Sturdza did not appear incompetent and
had never been found to be so, recommended denying the
motion for appointment of a guardian.
On April 24, 2003, the district court declined to adopt the
report and recommendation, instead ordering Ms. Sturdza to
show cause at a hearing why she should not be ordered to
submit to psychiatric examination. Ms. Sturdza refused to
appear at the hearing on June 4 or the rescheduled hearing on
June 23. On August 26 the district court ordered Ms. Sturdza
to submit to psychiatric examination and ordered both Ms.
Sturdza and Mr. Lewin to propose two licensed psychiatrists
by September 2. Mr. Lewin responded with two names; Ms.
Sturdza offered none.
Two years later, the district court appointed a guardian,
relying on litigation documents provided by Mr. Lewin, Ms.
Sturdza’s conduct at the status conferences, her pro se filings,
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and her failure to appear at the June 4 and June 23, 2003
hearings or to submit the names of two psychiatrists as
ordered. From this evidence, the district court concluded that
Ms. Sturdza was “incapable of rational decision-making with
respect to the instant case,” Sturdza v. U.A.E., No. 98-2051
(HHK), slip op. at 5 (D.D.C. Sept. 28, 2005), and noted that in
light of Ms. Sturdza’s refusal to submit to psychiatric
examination, it could “think of no additional procedural
safeguards that would assist in its decision to appoint a
guardian ad litem,” id. at 6. Although acknowledging some
authority permitting dismissal without prejudice when a
plaintiff refuses to submit to court-ordered psychiatric
examination, the district court declined to exercise this option,
instead interpreting Ms. Sturdza’s refusal as “yet another
indici[um] of her inability to make reasoned decisions
concerning this litigation.” Id. at 6 n.6.
Seeking to undo the appointment, Ms. Sturdza and
defendants Mr. Demetriou and his firm appeal the district
court’s ruling. We have appellate jurisdiction because Ms.
Sturdza’s initial appeal remains before us pending the D.C.
Court of Appeals’ resolution of the certified question. For its
part, the Court of Appeals has stayed its proceedings,
awaiting resolution of the question whether Ms. Sturdza may
represent herself.
II.
Mr. Lewin argues that Mr. Demetriou and his firm lack
standing to appeal the appointment of a guardian for Ms.
Sturdza. We disagree. Given that the fees of any guardian ad
litem can be taxed as costs, Schneider v. Lockheed Aircraft
Corp., 658 F.2d 835, 854–55 (D.C. Cir. 1981), Mr. Demetriou
and his firm have shown “an adverse effect” sufficient to give
standing to appeal, Liberty Mut. Ins. Co. v. Travelers Indem.
Co., 78 F.3d 639, 642 (D.C. Cir. 1996) (internal quotation
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marks omitted). Ms. Sturdza, who fired Mr. Lewin after he
filed the motion seeking a guardian, challenges his standing to
contest her appeal. We have no need to address that
challenge. Even were we to find that Mr. Lewin lacked
standing, we could accept his brief as a friend of the court.
Cf. Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d
1024, 1030 (D.C. Cir. 2004) (noting appointment of amicus
curiae “to present arguments in support of the District Court’s
judgment” when district court dismissed case sua sponte and
defendants never appeared), superseded by statute on other
grounds, National Defense Authorization Act for Fiscal Year
2008, Pub. L. No. 110-181, 122 Stat. 3 (2008).
“Because a litigant possesses liberty interests in avoiding
the stigma of being found incompetent, 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.” Neilson v. Colgate-Palmolive Co., 199 F.3d 642,
651 (2d Cir. 1999) (citation omitted). When the party for
whom the guardian is sought claims to be competent, at least
“some hearing” is required. Thomas v. Humfield, 916 F.2d
1032, 1033 (5th Cir. 1990). Although this need not always
take the form of a “full adversary hearing,” at a minimum it
entails “notice and an opportunity to be heard.” Id. at 1034.
In this case, Ms. Sturdza never received notice and an
opportunity to be heard on the question whether a guardian
should be appointed. Neither proceeding she attended
addressed that question. The July 10, 2002 district court
status conference revolved only around the question whether
to set a hearing at a later date. See Tr. at 29 (July 10, 2002)
(“[T]his is simply not the time to address the merits of the
motion . . . .”). The magistrate judge’s October 9, 2002
conference concerned the question whether to schedule a full
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hearing on the motion. See Tr. at 26 (Oct. 9, 2002) (“[W]e
will not go forward with the evidentiary hearing today.”).
The magistrate judge never scheduled a hearing, instead
concluding that Ms. Sturdza was not incompetent and
recommending against appointing a guardian.
Nor did Ms. Sturdza receive a hearing at any time after
the district court declined to adopt the magistrate judge’s
recommendation. Though Ms. Sturdza failed to comply with
the district court’s directions, none of the orders she
disobeyed addressed the question whether to appoint a
guardian. The district court scheduled the June 4 and June 23,
2003 proceedings, both of which Ms. Sturdza refused to
attend, to determine “why she should not be ordered to
undergo a mental examination by a licensed psychiatrist,” not
to answer the ultimate question whether to appoint a guardian.
Sturdza v. U.A.E., No. 98-2051 (HHK), slip op. at 4–5
(D.D.C. Apr. 24, 2003). Although in advance of these
proceedings Ms. Sturdza did file a written submission
claiming that she was competent, it seems quite clear from the
record that she never received notice that her failure to
comply would or could result in the appointment of a
guardian. As for her failure to undergo a mental evaluation,
the court’s order stated generally that Ms. Sturdza was to
meet with a psychiatrist, but it imposed no deadline for such
an examination. Indeed, in soliciting two names each from
Mr. Lewin and Ms. Sturdza, the order appears to have
contemplated a further order selecting a psychiatrist and
setting a deadline. Sturdza v. U.A.E., No. 98-2051 (HHK),
slip op. at 6 (D.D.C. Aug. 26, 2003) (“[B]y September 2,
2003, Mr. Lewin and Ms. Sturdza shall each submit to the
court the names of two psychiatrists who they would propose
to perform the examination that is the subject of this order
. . . .”). But instead of issuing such an order, holding
additional proceedings, or making any other contact with the
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parties, the district court simply appointed a guardian ad
litem. Thus, Ms. Sturdza never received a hearing, as there
was no proceeding that she was told would be her opportunity
to convince the court that appointment of a guardian was
unnecessary.
We appreciate that Ms. Sturdza’s refusal to comply made
it difficult for the district court to adjudicate Mr. Lewin’s
motion. Also, based on the evidence of Ms. Sturdza’s
behavior, including her disregard of the district court’s April
24, 2003 order to show cause why she should not be subject
to mental evaluation, we think the court acted within its
discretion when it concluded that doubts as to her competency
justified compelled psychiatric examination. See Cyntje v.
Gov’t of Virgin Islands, 95 F.R.D. 430, 432 (D. V.I. 1982).
And because no per se rule requires that a determination of
incompetency rest on medical evidence alone, cf. Hudnall v.
Sellner, 800 F.2d 377, 385 (4th Cir. 1986) (noting that
incompetence justifying a guardian ad litem need not be
“accompanied by other forms of personality disorder”), the
district court permissibly treated Ms. Sturdza’s failure to
comply with its entirely proper order directing psychiatric
evaluation as a factor that, in combination with the other
evidence of her conduct, supported the appointment of a
guardian. That said, before adjudicating Ms. Sturdza
incompetent and appointing a guardian, the district court
should have ordered her to show cause why a guardian should
not be appointed and informed her that in determining
whether to appoint one, it would consider any failure on her
part to comply or to submit to psychiatric evaluation. So long
as the district court also made clear to Ms. Sturdza that she
could seek to dismiss her case without prejudice if she wished
to avoid either a psychiatric evaluation or the loss of control
over her litigation, such notice would have been
constitutionally adequate to allow the district court to rule on
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the motion if she had persisted in noncompliance. Cf. Krain
v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (holding
that a court may dismiss without prejudice when a party
refuses to cooperate with a competency assessment).
III.
For the reasons stated above, we vacate the district
court’s September 28 and November 8, 2005 orders and its
March 27, 2006 order, and remand the record for the district
court to give Ms. Sturdza notice and an opportunity to be
heard on the question whether it should appoint a guardian ad
litem. The case remains in abeyance pending further order of
the court.
So ordered.