DONNELLY v. PARKER, 486 F.2d 402 (D.C. Cir. 1973)

JOHN J. DONNELLY, PETITIONER, v. HONORABLE BARRINGTON D. PARKER ET AL., RESPONDENTS.

No. 73-1259.United States Court of Appeals, District of Columbia Circuit.
August 21, 1973.

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Charles B. Sullivan, Jr., Washington, D.C., was on the petition for writ of mandamus for petitioner.

Harold H. Titus, Jr., U.S. Atty., John A. Terry, and Peter R. Reilly, Asst. U.S. Attys., were on the opposition to the petition for respondent Parker.

Philip N. Margolius, Washington, D.C., was on the opposition to the petition for respondent Kunz.

Calvin H. Cobb, Jr., and William G. Christopher, Washington, D.C., were on the opposition for respondent Ferry Co., Inc.

Before FAHY, Senior Circuit Judge, and ROBINSON and ROBB, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

[1] This case is before the court on a petition for a writ of mandamus directing the Honorable Barrington D. Parker, a United States District Judge for the District of Columbia, to order physical and mental examination of Catherine W. Kunz, the plaintiff named in an action brought against petitioner and another in the District Court. Judge Parker denied petitioner’s motion for the examinations, and the validity of that ruling is a subject of lively argumentation here. We find it unnecessary to enter the debate on that score for we accept the further contention that, in the circumstances presented here, the ruling is not reviewable by way of mandamus. We accordingly deny the writ.

I
[2] Petitioner is an attorney practicing in the District of Columbia. He was joined as a party defendant in a suit filed in the name of Mrs. Kunz, a former client. The complaint therein alleges that petitioner caused an unauthorized disposition to be made of securities owned by Mrs. Kunz, and it seeks a return of the securities or damages.

[3] Petitioner defends on the ground that Mrs. Kunz gave him ownership of the securities in partial payment of a fee for services rendered in her behalf. Petitioner also says that Mrs. Kunz was satisfied with the services, and that she is not the moving spirit behind the litigation. In fact, asserts petitioner, subsequent to completion of the services, her health deteriorated to the point that she lacked capacity to bring the action.[1] [4] That Mrs. Kunz has been victimized by sudden and serious illness is conceded. The discord, rather, is over the condition in which the illness has left her and its impact upon the proceeding. The dispute ripened for judicial consideration when petitioner gave notice that he would take Mrs. Kunz’ deposition. Her counsel then moved for an order barring that activity on the ground that she was “unable to withstand the rigors of a deposition and is further in such a state of mental and physical debility that she is unable at the present time to answer questions concerning this matter.” The motion was supported by the affidavit of Mrs. Kunz’ attending physician stating that she “is not physically or mentally able to undergo an oral deposition and may not be fit to do so for some time to come.” The affidavit added that Mrs. Kunz “is approximately 76 years old and the rigors of an oral deposition at this time would endanger her health and life.” Judge Parker granted

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the motion, and the deposition was thus precluded.

[5] Promptly thereafter, petitioner filed his own motion for an order directing physical and mental examinations of Mrs. Kunz.[2] The motion warned that in the event that the examinations disclosed mental disability, petitioner would move to dismiss the lawsuit as spurious. The motion was accompanied by petitioner’s affidavit stating his belief that the suit had been filed without Mrs. Kunz’ authority. The motion was opposed on grounds that Mrs. Kunz’ physical-mental condition was not in controversy, and that good cause for the examinations had not been shown.[3] The opposition also claimed that Mrs. Kunz was competent when she obtained counsel and authorized him to sue.[4] Judge Parker denied the motion and petitioner, now invoking the All Writs Act,[5] seeks relief at the hand of this court.[6]

II
[6] As the Supreme Court admonishes, “[t]he peremptory writ of mandamus has traditionally been used in the federal courts only `to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.'”[7] That is not to say, however, that every jurisdictional excess or omission will support a call for mandamus against a federal judge. For “[w]hile the courts have never confined themselves to an arbitrary and technical definition of `jurisdiction,’ it is clear that only exceptional circumstances amounting to a judicial `usurpation of power’ will justify the invocation of this

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extraordinary remedy.”[8] And while in an unusual case mandamus may lie to enforce the performance of a judicial responsibility,[9] it is well settled that it cannot be used as a substitute for appeal.[10] The proponent of mandamus has “the burden of showing that [his] right to issuance of the writ is `clear and indisputable.'”[11]

[7] Plainly, in the case at bar, the District Judge did not exceed his jurisdiction — in any real sense of the word.[12] Capacity of an individual, not acting in a representative character, to sue or be sued in the federal courts is ordinarily to be determined by the law of his domicile.[13] The record before us does not permit a satisfactory conclusion as to where Mrs. Kunz is domiciled[14] or, of course, as to just what her mentality may be, but these matters are of little moment to jurisdiction. If by the law of her domicile she can sue irrespective of actual mental incompetence, she may do so in any federal court. But even if the domiciliary law undertook to withdraw that attribute because of mental disability, litigation of her rights in the District court is still to be governed by Federal Civil Rule 17(c).[15] That rule provides that “[t]he court shall appoint a guardian ad litem for an . . . incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the . . . incompetent person.”[16] So, state law may confer but

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not deny capacity to sue or defend federally,[17] and the only effect of a party’s incompetence upon maintenance of the action is the possible need for appointment of a guardian ad litem or entry of a protective order.[18] In no event is federal jurisdiction to entertain the cause diminished.[19]

III
[8] The only other claim open to petitioner was that the circumstances put Judge Parker under a duty to issue the examinatorial order sought. The evidence of the poor state of Mrs. Kunz’ health could, on petitioner’s challenge, have presented the occasion for an inquiry into her capacity to understand the meaning and effect of the litigation being prosecuted in her name.[20] Beyond that, despite the earlier ruling adverse to petitioner’s effort to depose Mrs. Kunz, he was entitled to a fair opportunity to contest the affidavit averring that an attempt to do so would be unwise.[21] And surely a court-ordered physical-mental examination of Mrs. Kunz, conducted under appropriate safeguards, might have developed important information to serve both of those purposes,[22] and thus to materially advance the progress of the suit toward a final judgment on the merits.

[9] In the present procedural posture of the case, however, these considerations are beside the point. They do not survive the threshold question whether the contested ruling can now be reviewed in a mandamus proceeding or whether review must await the District Court’s final disposition. As the Supreme Court has observed, “[a]ll our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court.”[23] Mandamus “does not `run the

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gauntlet of reversible errors'”;[24] it “may not be used to thwart the congressional policy against piecemeal appeals.”[25] Only where an appeal can promise no more than “a clearly inadequate remedy” may the remedy of mandamus be resorted to.[26]

[10] The order denying the examinations, and foreclosing the discovery which petitioner sought thereby, was interlocutory and nonappealable.[27] The cases denying review of discovery orders by mandamus are legion.[28] Petitioner has not shown, nor are we able to perceive,

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any peculiar circumstance which would set this case apart as truly unusual.[29] On the contrary, the most that can be urged is that Judge Parker erred in applying the standards for physical-mental examinations to the situation displayed, and mandamus simply does not reach to such an error.[30]

[11] The question is not whether petitioner can obtain review of the ruling on the examination issue, but whether he can do so now. Should petitioner’s defensive efforts in the District Court prove to be ultimately unsuccessful, he can litigate that ruling, if unchanged, on an appeal from the final judgment. No rights will be jeopardized,[31] no irreparable injury will be suffered,[32] nor will any position be irreversibly compromised.[33] To be sure, petitioner may incur added expense, encounter added delay and perhaps even be subjected to an unnecessary trial, but “that inconvenience is one which we must take it Congress contemplated in providing that only final judgments should be reviewable.”[34] [12] In sum, “[t]he peremptory commonlaw writs are among the most potent

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weapons in the judicial arsenal,”[35] and “[a]s extraordinary remedies, they are reserved for really extraordinary causes.”[36] The case before us is not of that character. The writ of mandamus which petitioner seeks must accordingly be denied.

[13] Writ denied. [14] FAHY, Senior Circuit Judge, concurring with a comment: [15] The comment has reference to the language of Bankers Life
Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106 (1953) repeated in the present opinion of our court. The language conveys the view that the burden rests upon the petitioner for the writ of mandamus to show “that its right to issuance of the writ is `clear and indisputable.'” The “clear and indisputable” language in turn is taken from United States v. Duell, 172 U.S. 576, 582, 19 S. Ct. 286, 43 L.Ed. 559 (1899). I should suppose “indisputable” is to be read as somewhat synonymous with “clear,” for in Bankers Life itself there was a dissent by Mr. Justice Frankfurter, with whom Mr. Justice Jackson and Mr. Justice Minton joined. While the dissent was primarily to the effect that grant of the writ of certiorari in Bankers Life
was improvident and therefore that the writ should be dismissed, Justice Frankfurter also stated:

The Court’s opinion does not help decision when a party is dismissed from a litigation for reasons not as obviously compelling as those in this case. It necessarily leaves open the question whether such a ruling by a district judge may be reviewed by mandamus, without awaiting the completion of the entire litigation, in circumstances where postponement of review would involve a protracted trial, entailing heavy costs and great inconvenience. Compare Ex parte Skinner Eddy Corp., 265 U.S. 86, 95-96, 44 S.Ct. 446, 448, 68 L.Ed. 912, with Ex parte Chicago, R.I. P.R. Co., 255 U.S. 273, 41 S.Ct. 288, 65 L.Ed. 631. This Court ought not to be called upon to hold that where a district judge refused to entertain a “frivolous” claim, mandamus will not issue to compel him to entertain it.

[16] 346 U.S. at 388, 74 S.Ct. at 150. [17] In Ex parte Skinner Eddy Corp., 265 U.S. 86, 95-96, 44 S.Ct. 446, 68 L.Ed. 912, thus referred to, it is said mandamus is an extraordinary remedial process awarded not as a matter of right but in the exercise of a sound judicial discretion. Weight is thus added to the view indicated in Justice Frankfurter’s dissent that the writ may issue in disputable circumstances. An “indisputable” standard argues for an unduly rigid rule. Such rigidity illustrates the unwisdom, as it seems to me, of phrasing principles with respect to process or to judicial review which not only cannot take into consideration unknown and variable situations which may arise, but which at times apply a brake to the fair administration of justice. [18] ROBB, Circuit Judge: [19] I agree that the writ must be denied. [20] The petitioner contends that he is entitled to an order for “the physical and mental examination of the plaintiff, Catharine W. Kunz, for the purpose of determining whether she had the capacity to bring the action and whether she has the capacity to maintain the action. . . .” I think the district judge, in the exercise of his discretion, properly refused to order the requested examination. [21] The record discloses without contradiction that on October 1, 1971 counsel

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for Mrs. Kunz wrote to the petitioner demanding the return of certain of her assets that were in his possession. He did not respond to this demand. In December 1971 and January 1972 she presented her complaint to the Grievance Committee and to the Federal Bureau of Investigation. On April 26, 1972 she retained counsel to file suit; on April 28 she discussed the matter with an Assistant United States Attorney; and her suit was filed on June 5, 1972. On May 15, 1972 Mrs. Kunz suffered the stroke which the petitioner claims left her mentally incompetent.

[22] In my judgment the issue raised by the petitioner is without substance, in light of the facts disclosed by the record. I find nothing to suggest that counsel for Mrs. Kunz should have refrained from filing her lawsuit, as he was retained to do, or should have withdrawn it, because she had become ill. Indeed, had counsel failed to carry out his client’s instructions he might have been guilty of professional misconduct.[1] [23] Even assuming that Mrs. Kunz became mentally incompetent on May 15, 1972 this did not automatically terminate her counsel’s authority to file and prosecute her suit. Her illness did not infect her cause of action and in the absence of a judicial declaration of incompetency she could sue in her own name and maintain her suit. Ritter v. Ritter, 219 Ind. 487, 38 N.E.2d 997
(1942); Willett v. Webster, 337 Mass. 98, 148 N.E.2d 267 (1958); Withers v. Tucker, 32 Wis.2d 496, 145 N.W.2d 665 (1966); Neely v. Hogan, 62 Misc.2d 1056, 310 N.Y.S.2d 63 (1970). See Annot., 71 A.L.R.2d 1247. [24] Whether Mrs. Kunz is now able to give a deposition or otherwise respond to interrogatories is a question for the district court to decide in appropriate proceedings. If the district judge wishes to give consideration to the appointment of a guardian ad litem for Mrs. Kunz he may do so; but these matters are not before us.