United States District Court, D. Utah, Central Division
WESTON MCLACHLAN and PATTY MCLACHLAN, on behalf of themselves and on behalf of the minor child, W.M., Plaintiffs,
GRANITE SCHOOL DISTRICT; SHERRI BRANCH, an individual and Vice Principal at Eisenhower Jr. High; BRENDA ZIMMERMAN, an individual and former intern Vice Principal at Eisenhower Jr. High; MARK ELLERMEIER, an individual and Principal at Eisenhower Jr. High; and JOHN DOES 1-25, Defendants.
District Judge Clark Waddoups
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR RULE
35 EXAMINATION OF PLAINTIFF
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE
Judge Clark Waddoups referred this case to Chief Magistrate
Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is Defendants' Motion
for Rule 35 Examination of Plaintiff (the
“Motion”). The court has carefully reviewed the
written memoranda submitted by the parties. Pursuant to civil
rule 7-1(f) of the Rules of Practice for the United States
District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will
determine the motion on the basis of the written memoranda.
See DUCivR 7-1(f).
move this court for an order compelling Plaintiff W.M. to
submit to a mental examination pursuant to Rule 35 of the
Federal Rules of Civil Procedure. Specifically, the
Defendants seek to have their expert, Dr. Mickle South assess
W.M. for autism. In relevant part, Rule 35 provides:
(a) Order for an Examination.
(1) In General. The court where the action is
pending may order a party whose mental or physical
condition--including blood group--is in controversy to submit
to a physical or mental examination by a suitably licensed or
certified examiner. The court has the same authority to order
a party to produce for examination a person who is in its
custody or under its legal control.
Fed. R. Civ. P. 35(a)(1)-(2). The decision to grant a Rule 35
examination is within the discretion of the trial court.
Rule 35 . . . requires discriminating application by the
trial judge, who must decide, as an initial matter in every
case, whether the party requesting a mental or physical
examination or examinations has adequately demonstrated the
existence of the Rule's requirements of “in
controversy” and “good cause, ” which
requirements . . . are necessarily related.
Schlagenhauf v. Holder, 379 U.S. 104, 118-119
(1964). The Tenth Circuit “reviews discovery decisions
pertaining to Rule 35 examinations for an abuse of
discretion.” Herrera v. Lufkin
Indus., 474 F.3d 675, 688 (10th Cir. 2007).
the complaint alleges “mental and emotional
injury” caused by “[t]he actions and inactions of
defendants, ” Plaintiffs have not asserted W.M.'s
autism diagnosis “either in support of or in defense of
a claim.” Schlagenhauf, 379 U.S. at 119.
However, Defendants argue that W.M.'s autism diagnosis
was put “in controversy, ” not in the pleadings,
but when the Plaintiffs submitted a Rule 26 expert report
which summarizes the diagnosis. Defendants cite no case law in
support of their argument that a party's mental condition
can be put “in controversy” by an expert report
where the mental condition is not asserted in support of a
claim. However, whether W.M.'s autism diagnosis is
properly “in controversy” is immaterial to the
analysis, because the court concludes that the Defendants
have not established the “good cause” requirement
of Rule 35.
Motion was filed over a year after Defendants were put on
notice that Plaintiffs alleged mental and emotional injury,
and several months after all applicable deadlines have
passed. The complaint in this action was first filed in state
court in April 2016. The deadline for fact discovery was
February 10, 2017, more than five months ago. Defendants
argue that they did not seek a mental examination of the W.M.
during fact discovery because the autism diagnosis is
“simply not relevant to the legal claims raised in this
Defendants assert that they sought a mental examination only
after the Plaintiffs' expert report was submitted, which,
according to Defendants, first put W.M.'s autism
diagnosis in controversy. The Plaintiffs' expert report
was submitted on May 31, 2017. Defendants have known the
contents of Plaintiffs' expert report since May 31, 2017.
Even if the court accepts Defendants' argument that
W.M.'s autism diagnosis was not put in controversy until
the submission of Plaintiffs' expert report, Defendants
have failed to explain their two-month delay in requesting an
order for a Rule 35 examination. It is not lost on the court
that the Defendants moved for, and received, an extension
until July 19, 2017, to submit their expert counter report.
Yet, inexplicably, Defendants waited until August 1, 2017 to
file the Motion.
the Federal Rules of Civil Procedure provide for expansive
discovery regarding “any nonprivilged matter that is
relevant to any party's claim or defense, ” as long
as it is “proportional to the needs of the case.”
Fed.R.Civ.P. 26(b)(1). Here, however, Defendants have not
provided any justification for bringing the Motion so far
beyond the expiration of applicable deadlines. Defendants
have failed to adequately demonstrate good cause why a Rule
35 examination should be ordered now.
Defendants moved this court for the first time in their reply
memorandum to order in limine that Plaintiffs refrain from
referring to W.M. as having autism, Asperger's, or PTSD
in this litigation. Pursuant to Pursuant to civil rule 7-1(b)
of the Rules of Practice for the United States District Court
for the District of Utah, “[n]o motion . . . may be
included in a response or reply memorandum. Such motions must
be made in a separate document.” ...