Victor Mondelli v. Berkeley Heights Nursing

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-2193
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VICTOR MONDELLI,
Appellant
v.
BERKELEY HEIGHTS NURSING AND
REHABILITATION CENTER;
MARINA FERRER; DIANE WILVERDING; JOHN/JANE
DOES 1 THROUGH 5
______________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-16-cv-01569)
District Judge: Honorable Esther Salas
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(Argued: May 26, 2021)
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Before: GREENAWAY, JR., SHWARTZ, Circuit Judges,

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and ROBRENO, District Judge.*
(Filed: June 15, 2021)
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Kenneth J. Rosellini
636A Van Houten Avenue
Clifton, NJ 07013
Attorney for Appellant
Walter F. Kawalec, III [Argued]
Marshall Dennehey Warner Coleman & Goggin
15000 Midlantic Drive,
Suite 200, P.O. Box 5429
Mt. Laurel, NJ 08054
Attorney for Appellees
Michael L. Foreman
Kira Geary [Argued]
Anna C. Notchick [Argued]
Pennsylvania State University
Dickinson School of Law
329 Innovation Boulevard
Suite 118
State College, PA 16802
Court Appointed Amicus Curiae
* The Honorable Eduardo C. Robreno, United States
District Judge for the Eastern District of Pennsylvania, sitting
by designation.

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______________
OPINION
______________
SHWARTZ, Circuit Judge.
Victor Mondelli sued Berkeley Heights Nursing and
Rehabilitation Center (“Berkeley Heights”) and several of its
employees for violating the Americans with Disabilities Act
(“ADA”) and for intentionally inflicting emotional distress.1
Mondelli failed to cooperate with his counsel to provide
discovery, so the District Court dismissed his complaint for
failure to prosecute. Because there was verifiable evidence
that placed Mondelli’s competency at issue, the Court
prematurely dismissed his case. We will therefore vacate the
dismissal order and remand for the Court to examine his
competency, as required by Federal Rule of Civil Procedure
17, and to then reevaluate whether dismissal is warranted.
I
Mondelli has a long history of mental health issues,
including suffering from paranoid schizophrenia and major
depression. Despite these conditions, he attempted to attend to
1 The individual Defendants are: (1) Marina Ferrer,
Administrator of Berkeley Heights; (2) Diane Wilverding, the
Director of Recreation; (3) Mary Chmura, a former employee;
(4) Leanne Fiet, a consultant and compliance advisor; (5)
Pamela McCarthy, an employee; (6) Virginia Doe, an
employee; and (7) John/Jane Does one through five, other
persons responsible for Mondelli’s mother’s care.

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the needs of his mother while she resided at Berkeley Heights.
During his daily twelve-hour visits, Mondelli allegedly
observed the staff provide his mother with inadequate care.
Mondelli regularly complained to Berkeley Heights staff, the
New Jersey Board of Health, and the Office of the Ombudsman
for the Institutionalized Elderly. After several contentious
visits, including ones when both sides called the police,
Mondelli’s visits were limited to one to two hours per day in
the lobby. Mondelli’s mother passed away in 2015.
Mondelli thereafter filed a complaint alleging violations
of Title II of the ADA and for intentional infliction of
emotional distress. After Defendants filed their answer, the
Magistrate Judge set a schedule for Federal Rule of Civil
Procedure 26 disclosures, service of interrogatories, and
completion of discovery. Defendants thereafter sent Mondelli
interrogatories and requests for admission. Mondelli did not
produce his Rule 26 disclosures or discovery responses. The
Magistrate Judge then provided Mondelli with several deadline
extensions, all of which he missed.
In response to Defendants’ request to file dispositive
motions based upon Mondelli’s noncompliance, the Magistrate
Judge issued an order directing Mondelli to show cause why
he should not be sanctioned for his failure to produce
discovery. Mondelli responded with a certification, in which
he explained, among other things, that he (1) suffers from a
variety of physical and mental health conditions; (2) was found
incompetent to stand trial in the Municipal Court of Fanwood,
New Jersey; and (3) has been unable to properly communicate
with his lawyer. Mondelli also presented several exhibits,
including letters from physicians and a psychiatrist stating he
suffers from major depression and schizophrenia, which causes

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him stress and anxiety that has made it difficult for him to
attend school, work, and court proceedings. Based upon the
certification and accompanying exhibits, Mondelli asked the
Magistrate Judge to place his case on administrative hold.
The Magistrate Judge granted his request, and the case
was administratively terminated for 180 days, after which the
case would be dismissed with prejudice if Mondelli did not
seek to reopen the case. Mondelli thereafter moved to reopen
or extend the time to do so. In his supporting certification,
Mondelli again discussed his poor physical and mental health.
Defendants opposed the motion, arguing that the six factors
from Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863
(3d Cir. 1984),2 required dismissal for failure to prosecute.
The District Court thereafter denied Mondelli’s motion
to reopen and, weighing the Poulis factors, dismissed his
complaint with prejudice. Specifically, the Court: (1) found
that Mondelli was personally responsible for his failure to
prosecute; (2) concluded that Defendants were prejudiced by
his failure to prosecute; (3) observed that Mondelli had a
history of dilatoriness; (4) refused to find that Mondelli or his
counsel were acting willfully or in bad faith; (5) determined
2 These factors are: “(1) the extent of the party’s
personal responsibility; (2) the prejudice to the adversary
caused by the failure to meet scheduling orders and respond to
discovery; (3) a history of dilatoriness; (4) whether the conduct
of the party or the attorney was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal, which entails
an analysis of alternative sanctions; and (6) the meritoriousness
of the claim or defense.” Poulis, 747 F.2d at 868 (emphasis
omitted).

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that no sanction other than dismissal would be effective or
appropriate; and (6) held that Mondelli’s ADA claim lacked
merit but declined to opine that his intentional infliction of
emotional distress claim was meritless. In reaching these
conclusions, the Court acknowledged Mondelli’s counsel’s
assertions concerning a municipal judge’s finding that
Mondelli was incompetent and counsel’s statements that
Mondelli was not fit to represent himself, but the Court stated
that there was no documentary support for these assertions.
Mondelli appealed and we appointed amicus counsel to
address: (1) “whether the District Court erred in dismissing
Mondelli’s action for failure to prosecute without first
inquiring into Mondelli’s competency”; and (2) “whether the
District Court properly considered and balanced the [Poulis]
factors . . . before dismissing Mondelli’s complaint.” Order,
ECF No. 77.
II3
The Court has a duty to ensure that incompetent persons
are properly represented. To this end, we must determine
whether Rule 17 requires a district court to inquire into a
plaintiff’s competency before dismissing his complaint for
failure to prosecute. Rule 17 provides that “an incompetent
person who does not have a duly appointed representative may
sue by a next friend or by a guardian ad litem. The court must
3 The District Court had jurisdiction under 28 U.S.C. §
1331, and we have jurisdiction under 28 U.S.C. § 1291. When
a district court dismisses a case for a failure to prosecute under
Federal Rule of Civil Procedure 41(b), we review for abuse of
discretion. Briscoe v. Klaus, 538 F.3d 252, 257 (3d Cir. 2008).

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appoint a guardian ad litem—or issue another appropriate
order—to protect [an] incompetent person who is
unrepresented in an action.” Fed. R. Civ. P. 17(c)(2). Rule 17
sets forth examples of representatives who may sue or defend
on behalf of an incompetent person, such as a general guardian,
a committee, a conservator, or a like fiduciary. Fed. R. Civ. P.
17(c)(1).
A court’s obligation under Rule 17 to appoint a guardian
for an incompetent person is mandatory. Powell v. Symons,
680 F.3d 301, 303 (3d Cir. 2012). A district court must invoke
Rule 17 sua sponte and consider whether to appoint a
representative for an incompetent person when there is
“verifiable evidence of incompetence.”4 Id. at 307. Verifiable
evidence of incompetence includes (1) “evidence from an
appropriate court of record or a relevant public agency
indicating that the party had been adjudicated incompetent,” or
(2) “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.” Id.
(quoting Ferrelli v. River Manor Health Care Ctr., 323 F.3d
196, 201 (2d Cir. 2003)). Therefore, anecdotal information or
layperson opinions do not constitute verifiable evidence.
4 “[B]izarre behavior alone, even if such behavior may
suggest mental incapacity[,]” does not trigger a Rule 17 inquiry
because “[t]he federal courts are flooded with pro se litigants
with fanciful notions of their rights and deprivations.” Powell,
680 F.3d at 307; see also Ferrelli v. River Manor Health Care
Ctr., 323 F.3d 196, 202 (2d Cir. 2003) (holding that Rule 17 is
not triggered “simply because the litigant asserts her own
incompetence or displays apparent signs of mental
incapacity”).

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Here, there was verifiable evidence of Mondelli’s
potential incompetence to trigger a Rule 17 inquiry. When
Mondelli’s counsel appeared before the Magistrate Judge, he
presented letters from several doctors, including a psychiatrist,
who opined that Mondelli suffers from “a major psychiatric
condition,” J.A. 91; is “unable to attend court” as a result, J.A.
92; has been diagnosed with paranoid schizophrenia that
causes “psychotic symptoms,” J.A. 94-98; has been diagnosed
with major depression; and is “totally and permanently
disabled due to his illness,” J.A. 98. These letters from “mental
health professional[s],” notifying the Court that Mondelli “is
being or has been treated for mental illness of the type that
would render him . . . legally incompetent,” were sufficient to
trigger a sua sponte inquiry under Rule 17. Powell, 680 F.3d
at 307 (quoting Ferrelli, 323 F.3d at 201); see also Allen v.
Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005) (holding that
letters from the pro se plaintiff, his friend, and his prison
psychiatrist, which noted that the plaintiff suffers from chronic
undifferentiated schizophrenia, were “sufficient evidence of
incompetence at least to require the district court to make a
competency determination” under Rule 17). Based on this
verifiable evidence of Mondelli’s potential incompetence, a
Rule 17 inquiry was required.5
5 Although the evidence was presented during
proceedings before the Magistrate Judge and not to the District
Court Judge, the evidence was placed on the docket and hence
is part of the District Court’s record. In addition, Mondelli’s
counsel informed the District Court that Mondelli’s May 19
Certification in response to the order to show cause “include[d]
documentation of his medical history[.]” J.A. 17.

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Contrary to Defendants’ arguments, Rule 17’s
obligation is not limited to pro se litigants.6 Rule 17(c)(2)
states in relevant part: “The court must appoint a guardian ad
litem—or issue another appropriate order—to protect a minor
or incompetent person who is unrepresented in an action.”
Fed. R. Civ. P.17(c)(2). When read in the context of Rule
17(c)(1), which provides examples of acceptable
“representatives,” it becomes clear that the phrase
“unrepresented in an action” under Rule 17 does not refer to
whether the party has counsel. Rather, whether an incompetent
person is “unrepresented in an action” refers to whether that
person has a Rule 17-type representative. As the Court of
Appeals for the Second Circuit has stated, Rule 17(c) mandates
“that when an ‘incompetent person’ is not represented by a full-
time guardian, the court ‘shall appoint a guardian ad litem for
[that person] . . . or shall make such other order as it deems
proper’ to protect the incompetent’s interests.” Ferrelli, 323
F.3d at 201 (alteration in original) (quoting Fed. R. Civ. P.
17(c)(2)). The Ferrelli court focused on whether the person
was “represented by a full-time guardian,” and not whether the
person was represented by counsel. See id.
Our Court has also considered a court’s Rule 17
obligation where the person has counsel. In Gardner ex rel.
Gardner v. Parson, the grandmother of a mentally impaired
teenager initiated an action on behalf of herself and as next
friend to her granddaughter. 874 F.2d 131, 134-36 (3d Cir.
1989). For reasons not relevant here, we agreed with the
district court that neither the granddaughter’s court-appointed
special advocate nor her grandmother could serve as her next
6 The plaintiffs in Powell, 680 F.3d at 303, and Ferrelli,
323 F.3d at 198, were both pro se.

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friend. Id. at 137-39. This ruling left the incompetent
granddaughter unrepresented for Rule 17 purposes. Even
though she had counsel, we held that the district court should
have nonetheless appointed a new next friend to represent her
interests. Id. at 140 n.14. We so ruled because a person’s legal
interest in a case may be different from what is in the person’s
overall best interest. Moreover, one who lacks capacity to
make decisions for himself needs someone to do so for him.
For these reasons, while
[i]t may be possible for the court to appoint
counsel as a representative for a minor [or
incompetent person,] . . . the appointment of
counsel as a representative is not always prudent.
[In fact,] [o]ne commentator has noted that this
is generally inadvisable, because a lawyer who
acts in both capacities may sometimes fail to
distinguish between the two roles.[7]
7 Mondelli’s counsel recognized that a lawyer and a
representative serve different roles, and that it may not be
advisable for a lawyer to play both roles simultaneously. To
this end, Mondelli’s counsel asked the District Court to appoint
a power of attorney to make decisions for Mondelli in this case.
Counsel explained that he was uncomfortable producing Rule
26 disclosures without approval from either Mondelli or an
appointed representative. The Court acknowledged the
“untenable position” that counsel faced in his attempt to
balance his obligations to both his client and to the Court. J.A.
14. Other district courts have made similar observations. See
Bacon v. Mandell, No. 10-cv-5506, 2012 WL 4105088, at *14
(D.N.J. Sept. 14, 2012) (“[A] Rule 17(c) appointment of a
single representative who is a legal counsel could yield a

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Id. Thus, even though a person may have legal counsel, that
person’s other interests may remain unrepresented and
“otherwise unprotected.” Id. at 141. Until a court satisfies
itself that those interests are protected, it lacks the authority to
reach the merits of the case. Id. In sum, a district court
presented with verifiable evidence of incompetence may abuse
its discretion under Rule 17(c) if it fails to appoint a next friend
or guardian ad litem to represent an incompetent person, even
when he or she is represented by counsel.8
scenario where such representative, being obligated to
effectively wear ‘two hats’ by acting as both a guardian ad
litem and pro bono counsel, might find himself/herself caught
in a limbo, being [] unable to continue wearing both these
hats[.]”); see also Wright v. Wenerowicz, No. 2:14-cv-00245,
2018 WL 1081982, at *3 (E.D. Pa. Feb. 28, 2018) (finding
“appointing a guardian ad litem to represent [the plaintiff’s]
interests in conjunction with [his attorney] to be a more
suitable course of action than simply appointing a new
attorney”).
8 Sometimes, however, the appointment of counsel may
be sufficient. See Powell, 680 F.3d at 308-09 (“Therefore, we
will reverse and remand with directions to the District Court to
appoint a representative or counsel to proceed with the case.”).
If a district court concludes that counsel can sufficiently protect
the interests of his incompetent client under Rule 17, then the
court should make such a finding. See Krain v. Smallwood,
880 F.2d 1119, 1121 (9th Cir. 1989) (noting that a district court
should hold a Rule 17 competency hearing and “may find that

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Because Mondelli presented verifiable evidence
concerning his potential incompetency, the District Court
should have conducted an inquiry into his competency
regardless of whether he had legal counsel. Relatedly, because
Mondelli’s competence may impact the findings concerning
his personal responsibility for disregarding his discovery
obligations and whether he did so willfully or in bad faith,9 the
Court prematurely determined that the Poulis factors supported
dismissal.10
the incompetent person’s interests would be adequately
protected by the appointment of a lawyer”). Such a counsel,
however, must be capable of representing all of the person’s
interests, not just his legal interests in the particular case.
Because the District Court did not conduct a Rule 17 inquiry,
it made no finding as to either whether counsel could protect
all of Mondelli’s interests or about the scope of counsel’s
authority.
9 For example, while Mondelli is literally responsible
for the delay (i.e., he caused the delay) and has a history of
dilatoriness, his diagnosis may preclude the Court from
holding that he is legally culpable for the delay. Similarly, if
he is deemed incompetent, then it may be inappropriate to
construe his actions as willful or in bad faith. On the other
hand, as Amicus agrees, if Mondelli is deemed to be
competent, then the Poulis factors “would likely weigh
against” him. Amicus Reply Br. at 11 n.3.
10 Although there may be reason to doubt the merits of
Mondelli’s claims, this fact does not impact a court’s Rule 17
obligation. Rule 17 protects the interests of incompetent
persons. Thus, when a person is deemed incompetent, the case
pauses until steps are taken to protect his interests, and “a court
may not weigh the merits of claims beyond the § 1915A or §

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III
For the foregoing reasons, we will vacate the dismissal
order and remand for further proceedings.
1915(e)(2) screening if applicable” until his competency is
addressed. Powell, 680 F.3d at 307.

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