There was a sense back in May that Judge Henry Kennedy Jr. of the U.S. District Court for the District of Columbia had been there, done that.
He seemed miffed that a federal appeals court had kicked back to him a lawsuit that was first filed more than a decade ago. The U.S. Court of Appeals for the D.C. Circuit said Kennedy did not afford the plaintiff a chance to be heard on a motion to appoint a guardian. Kennedy took exception to that, but he followed orders. Click here for the circuit opinion.
Plaintiff Elena Sturdza spoke for more than an hour at the remand hearing in May, and the judge then reached the same conclusion he’d come to earlier: that a guardian ad litem should be appointed to represent the interests of Sturdza, an architect who is suing the United Arab Emirates, among other defendants, in a copyright infringement suit.
For a quick recap, Sturdza has been fighting for seven years to fire her lawyer, well-known Washington trial attorney Nathan Lewin, and proceed pro se. Lewin moved for a guardian in 2002 on the ground that Sturdza was not competent to make decisions in her case. The National Law Journal recently wrote about the case here.
Kennedy issued an order days after the hearing but he didn’t immediately issue an opinion. He took his time.
Last week, Kennedy published a 44-page opinion in which he came out swinging against the D.C. Circuit, which had ruled for Sturdza—and against Kennedy, in some respect—back in April. The appeals court, in a per curiam ruling, said Kennedy “simply” appointed a guardian without giving notice to Sturdza that she could have a hearing to convince Kennedy that a guardian was not needed.
Kennedy went to great length in his opinion to show that Sturdza had ample opportunity to argue her position against the appointment of a guardian both orally in court and in court papers.
In a footnote on page 35 of his opinion (.pdf), the judge said the D.C. Circuit recitation of the record is “entirely ipsit dixit”—that the appeals court opinion can only be taken on faith. And that wasn’t the strongest language in the same 200-plus word footnote: “The D.C. Circuit’ two-sentence characterization, supplemented with quotations, taken out of context, of the pertinent proceedings in this court is not only wrong but slights the record to a remarkable and lamentable degree.”
At the remand hearing in May, Kennedy indicated he’d already heard what Sturdza was arguing.
“Sturdza spoke for over an hour. While lengthy, very little of what she said was new. Contrary to the finding of the D.C. Circuit regarding the matter, this Court has ‘heard’ Sturdza” oppose Lewin’s motion, Kennedy wrote.
In the opinion, Kennedy said calling the Sturdza case "unusual and complicated" is an understatement. The judge said the litigation has reached "Bleak House proportions," a reference to the Charles Dickens tale of protracted litigation in England. Kennedy noted in a two-sentence footnote (page 33 of his opinion) that the D.C. Circuit issued its ruling per curiam, a designation generally used for cases of lesser significance.
And as a parting jab, Kennedy said that if his ruling is appealed to the D.C. Circuit, the appeals court should give Sturdza a chance to argue in front of that bench—something the court has not done.
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