Trustees of the Pension and Welfare Funds of the Moving Picture Machine Operators Union, Local 306 v. Queens Circuit Management Corp. et al

Filing 73

ORDER denying 63 Motion for Judgment on the Pleadings without prejudice to renew after completing the further steps described in the attached Order. Ordered by Chief Mag. Judge Steven M. Gold on 3/19/2015. (Gold, Steven)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TRUSTEES OF THE PENSION AND
WELFARE FUNDS OF THE MOVING
PICTURE MACHINE OPERATORS UNION,
LOCAL 306,
Plaintiffs,
-against-

ORDER
11-CV-5882 (SMG)

QUEENS CIRCUIT MANAGEMENT CORP.,
MANUEL DIAZ, and JOSE DIAZ,
Defendants.
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Gold, S., U.S.M.J.:
Plaintiffs seek entry of a default judgment against defendant Jose Diaz. Rule 55 of the
Federal Rules of Civil Procedure provides that “a default judgment may be entered against a
minor or incompetent person only if represented by a general guardian, conservator, or other like
fiduciary who has appeared.”
Although Diaz has not appeared in the action, he has, through his daughter, submitted
documents to the Court suggesting that he may be incompetent. More specifically, Diaz’
daughter has submitted to the Court, among other documents, what appear to be the following:
(1) a note dated March 5, 2014 from Dr. Luis E. Rodriguez , a medical doctor in Puerto Rico,
reporting a diagnosis of Alzheimer’s disease, stage II and a “Minimental” score of seven, Docket
Entry 64 at 6; (2) a letter from Dr. Jeffrey Kessler, a Long Island-based neurologist stating that
Diaz “suffers to a significant degree of dementia and is unable to participate in legal proceedings
on his own,” Docket Entry 70 at 3; and (3) a letter from Kimberly Bent, a social worker who
serves as the director of residential relations at an assisted living facility advising that Diaz
resides there, requires constant reminders to wear his oxygen and “can no longer manage

activities of daily living on his own,” Docket Entry 70 at 4. Plaintiffs acknowledge that Stage II
Alzheimer’s disease may indicate symptoms including forgetfulness, unusual reasoning and
confusion, and that a score of less than nine on the Mini-Mental State Examination is associated
with severe cognitive impairment. Pl. Mem. at 7, Docket Entry 63. No guardian, conservator or
other like fiduciary has appeared on behalf of defendant Diaz.
Federal Rule of Civil Procedure 17(c) provides that a 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.” As
the Second Circuit has noted, “[t]he rule gives us no guidance regarding the circumstances that
warrant a competency inquiry.” Ferrelli v. River Manor Health Care Center, 323 F.3d 196, 201
(2d Cir. 2003).
The Circuit pointed out in Ferelli, though, that regardless of whether the rule requires
appointment of a guardian, a court has discretion to consider whether a guardian should be
appointed when a “significant question regarding [a party’s] mental capacity” has been raised,
and that “such consideration may be particularly appropriate in the case of a defendant who
shows signs of severe incapacity, in part because a judgment entered against a mentally
incompetent defendant not represented by a guardian or a guardian ad litem may be subject to
collateral attack at a later date.” Id. at 203. Moreover, when a court “receive[s] verifiable
evidence from a mental health professional demonstrating that the party is being or has been
treated for mental illness of the type that would render him or her legally incompetent, it would
likely be an abuse of the court’s discretion not to consider whether Rule 17(c) applied.” Id. at
202. See also, Bowen v. Rubin, 213 F. Supp. 2d 220, 223 (E.D.N.Y. 2001) (noting that the
authority of a court to appoint a guardian ad litem is broadly construed and not limited by a

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narrow definition of incompetency).
The evidence presented on behalf of Diaz, enumerated above, at least arguably
demonstrates that he suffers from a mental illness that renders him incompetent, and certainly
raises at a minimum a significant question about his mental capacity. Plaintiffs seem to
acknowledge as much, but argue that a default judgment should be entered nevertheless because
Diaz’ incapacity has not been demonstrated by “competent, admissible medical evidence.” Pl.
Reply at 2, Docket Entry 71. Plaintiffs question Dr. Rodriguez’ qualifications and describe his
note as unsworn hearsay, and assert that Dr. Kessler’s note is vague, conclusory and lacking in
evidentiary foundation. Pl. Reply at 4-5. Plaintiffs argue that a default judgment should be
entered when a defendant presents only indicia, and not a determination, of mental
incompetency.
While Diaz has not presented sworn medical testimony, I take into account that he is not
represented by counsel. Moreover, there appears to be no reason to question the authenticity or
reliability of the medical documents Diaz has presented. Nevertheless, if plaintiffs seek to
investigate Diaz’ mental status further – for example, by seeking depositions of his treating
doctors or having their own expert examine Diaz or review his medical records and submit a
report – I see no reason, subject to review of any objection made by defendant, to preclude them
from doing so.
Accordingly, plaintiffs shall submit a letter by April 15, 2015 indicating how they intend
to proceed. If plaintiffs do not seek to discover or present additional information about Diaz’
competence, I will conclude from the documents now before the court that consideration of
whether appointment of a guardian is warranted and will explore the subject further with
defendant’s daughter.

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Counsel for plaintiff shall promptly serve a copy of this Order upon the daughter of
defendant Jose Diaz and file proof of service with the Court.
SO ORDERED.
/s/
Steven M. Gold
United States Magistrate Judge
Brooklyn, New York
March 19, 2015
U:\KJ 2014-15\Local 306 v. Queens Circuit Mgmt Corp. 11-CV-5882\Order 031915.docx

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