Robinson v. HD Supply, Inc.

Filing 80

ORDER signed by Judge Garland E. Burrell, Jr on 8/28/13: Defendant's request to modify the status order is DENIED. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KRIS ROBINSON,

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2:12-cv-00604-GEB-AC

Plaintiff,

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No.

v.

ORDER

HD SUPPLY, INC., a
corporation,
Defendant.

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Defendant

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compel a mental examination of Plaintiff. Defendant argues the

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order “incorrectly determined that Plaintiff’s PTSD was not ‘in

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controversy[,]’” and “incorrectly determined that ‘good cause’

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did

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Recons. 2:11-2:22, ECF No. 71.) Defendant also seeks, in its

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request for reconsideration of the Magistrate Judge’s July 19,

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2013 order, an “exten[sion of] the discovery cut-off to allow

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sufficient time for Dr. Brooker . . . to prepare a supplemental

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expert report.” (Id. at 13:15-14:9.)

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A.

(ECF

mental

No.

64),

Magistrate

Defendant’s Federal Rule of Civil Procedure (“Rule”) 35 motion to

the

order

the

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for

2013

of

Judge’s

exist

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reconsideration

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not

July

requests

examination.”

which

(Def.’s

denied

Req.

for

Reconsideration of July 19, 2013 Order

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Defendant argues, inter alia, that “the July 19, 2013

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order [(“the Order”)] incorrectly determined that ‘good cause’
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did not exist for the [desired] mental examination even though

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there are no other means by which [Defendant] can obtain the

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information needed to rebut Plaintiff’s expert testimony relating

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to Plaintiff’s mental state without its own examination.” (Id. at

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2:19-22.) Defendant argues:

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Plaintiff has designated five health care
providers as experts, all of whom have
purportedly treated Plaintiff for PTSD and
emotional distress. The [Order] potentially
allows Plaintiff to parade these individuals
and the medical/psychological records that
they prepared in front of a jury to explain
Plaintiff’s PTSD and his emotional distress.
By [the Order], [Defendant] will have no
ammunition to defend itself against this
testimony and the medical records. A mental
examination
is
required
to
(1)
allow
[Defendant] to evaluate whether Plaintiff’s
exacerbation of PTSD and emotional distress
claims are valid and (2) allow [Defendant] to
refute the opinions of Plaintiff’s experts.
The mental examination is the only way
[Defendant] can obtain this information.

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(Id. at 10:2-12.)

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Plaintiff

“‘good

information

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elsewhere.” (Pl.’s Opp’n 4:14-17, ECF No. 76.) Plaintiff argues:

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“there

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Plaintiff’s claimed mental and emotional injuries is unavailable

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elsewhere.

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opportunity to review Plaintiff’s medical records and depose the

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relevant witnesses.” (Id. at 4:18-20 (internal quotation marks

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and brackets omitted).)

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no

To

and

a

lack

indication

the

of

that

contrary,

the

means

the

need

generally

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sought

[concerning]

cause’

requires

is

showing . . .

that

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a

counters

for

has

the

obtaining

information

Defendant

for

had

it

regarding

an

ample

“If a party objects to a nondispositive pretrial ruling
by

a

magistrate

judge,

the

district
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court

will

review

or

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reconsider the ruling under the ‘clearly erroneous or contrary to

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law’ standard.” Mackey v. Frazier Park Public Utility Dist., No.

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1:12-CV-00116-LJO-JLT, 2012 WL 5304758, at *2 (E.D. Cal. Oct. 25,

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2012) (quoting Fed. R. Civ. P. 72(a)). “A magistrate judge’s

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factual findings are ‘clearly erroneous’ when the district court

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is left with the definite and firm conviction that a mistake has

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been

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Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997). “However, the

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district court ‘may not simply substitute its judgment for that

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of the deciding court.’” Id. (quoting Grimes v. City of S.F., 951

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F.2d 236, 241 (9th Cir. 1991)). “An order ‘is contrary to law

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when it fails to apply or misapplies relevant statutes, case law,

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or rules of procedure.’” Id. (quoting Knutson v. Blue Cross &

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Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008)). “A

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magistrate

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considered nondispositive orders.” Id. (citing Thomas E. Hoar,

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Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)).

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committed.”

Id.

judge’s

(quoting

pre-trial

Sec.

Farms

discovery

v.

Int’l

orders

are

Bhd.

of

generally

Rule 35 governs the ordering of mental examinations. It
prescribes, in relevant part:

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The court . . . may order a party whose
mental . . . condition . . . is in
controversy to submit to a . . . mental
examination
by
a
suitably
licensed
or
certified examiner. . . . [Such an order] may
be made only on motion for good cause and on
notice to all parties and the person to be
examined . . . .

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“The

moving

party

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controversy’

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5304758, at * 3; see also Schlagenhauf v. Holder, 379 U.S. 104,

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118-19 (1964) (“Rule 35 . . . requires discriminating application

and

bears

‘good

the

cause’

burden

of

establishing

requirements.”

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Mackey,

the
2012

‘in
WL

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by

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requesting

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demonstrated

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controversy’ and ‘good cause’ . . . .”).

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the

trial
a

judge,

who

must

mental . . .
the

existence

decide . . .

whether

examination . . .
of

the

Rule’s

has

the

party

adequately

requirements

of

‘in

“Good cause” generally requires a showing of
specific facts justifying discovery. Factors
that courts have considered include, but are
not limited to, the possibility of obtaining
desired information by other means, whether
plaintiff plans to prove [his or] her claim
through
testimony
of
expert
witnesses,
whether the desired materials are relevant,
and whether plaintiff is claiming ongoing
emotional distress.

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Franco v. Boston Scientific Corp., No. 05-CV-1774 RS, 2006 WL

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3065580, at *1 (N.D. Cal. Oct. 27, 2006) (emphasis added).

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Here, the Magistrate Judge held that Defendant did “not

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demonstrate[]

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stating that Defendant did not show the desired information was

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unavailable from another source. (Order 9:17-10:10, ECF No. 64.)

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Defendant has not shown the Magistrate Judge’s ruling on the

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“good cause” issue was clearly erroneous or contrary to law.1

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cause

to

conduct

an

IME[,]”

essentially

Defendant[] ha[s] obtained medical records
from each of [Plaintiff’s] providers[, and]
ha[s] . . . deposed [a number of Plaintiff’s
treating physicians], whom [Plaintiff] has
designated
as
her
expert[s].
.
.
.
Defendant[] ha[s] failed to present any
evidence why an additional evaluation is
needed or how this additional evaluation
would contribute to an understanding of
[Plaintiff’s] condition.

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good

Mackey, 2012 WL 5304758, at *4 (denying the defendants’ motion

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Since Defendant has not shown that the Magistrate Judge’s ruling on the
“good cause” issue was clearly erroneous or contrary to law, decision on
whether the Magistrate Judge erred in deciding Plaintiff’s PTSD is not “in
controversy” is unnecessary.

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for

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defendant’s motion to compel a mental examination).

reconsideration

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For

the

of

the

stated

magistrate

reasons,

judge’s

order

Defendant’s

denying

request

for

reconsideration is DENIED.

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B.

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Request to Modify the Status Order
On

July

19,

2013,

the

Magistrate

Judge

denied

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Plaintiff’s motion to exclude Defendant’s rebuttal expert, Alan

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E.

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Magistrate Judge ordered Defendant to

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Brooker,

Ph.D.

However,

in

the

July

19,

2013

order,

the

submit to [P]laintiff signed copies of all of
Dr. Brooker’s submissions, . . . identify
deposition or arbitration testimony from
other
cases
in
which
Dr.
Brooker
was
involved, . . . direct Dr. Brooker to specify
which of the many functions [P]laintiff could
continue to perform at HDS, and . . . specify
“the basis and reasons” for each of Dr.
Brooker’s opinions [no later than July 26,
2013].
(Order 10:17-21, ECF No. 65.)
On

July

25,

2013,

Defendant

filed

an

ex

parte

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application seeking an extension of “at least 60 days” to serve a

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supplemental expert report by Dr. Brooker in response to the

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referenced order. (Def.’s Ex Parte Appl. 7:15-21, ECF No. 68.)

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The Magistrate Judge denied Defendant’s ex parte application on

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July 29, 2013, stating in relevant part:

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the undersigned finds that [D]efendant’s
request for a sixty-day extension of time to
supplement
Dr.
Brooker’s
report
would
interfere substantially with Judge Burrell’s
[status] order. Were [D]efendant to prevail
on its request, Dr. Brooker’s supplemental
report would be due on or around the date for
filing dispositive motions. This, of course,
would leave hardly any time for [P]laintiff
to review the report before filing his own
dispositive motion, should he so wish.
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. . . .

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Accordingly, IT IS HEREBY ORDERED that the
court declines to modify its order to the
extent it asks for a modification of Judge
Burrell’s [status] order. Any such requests
shall be directed to Judge Burrell directly.

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(Order 2:12-3:6, ECF No. 70.)

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Defendant now requests the undersigned to modify the

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status order “to allow sufficient time for Dr. Brooker . . . to

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prepare a supplemental expert report.” (Def.’s Req. for Recons.

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13:13-14:9.) Defendant argues:

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[T]he Court in its July 2, 2012 [status
order] (ECF No. 17) set a July 23, 2013
discovery
cut-off
date.
This
date
was
extended, by stipulation, to August 30, 2013
for limited discovery[, including to take the
deposition of Dr. Alan Brooker] (ECF No. 27).
On July 19, 2013, the Magistrate Judge issued
another order requiring a supplemental report
by . . . Dr. Brooker . . . by July 26, 2013.
Because
[Defendant]
intended
to
seek
reconsideration of the Magistrate Judge’s
order [denying Defendant’s Rule 35 motion to
compel a mental examination], because Dr.
Brooker was unavailable to prepare and sign
an additional report by July 26th[,] and
because Plaintiff produced several thousand
pages of documents on July 22nd[,] . . .
including additional medical records that had
not been previously produced by Plaintiff,
[Defendant] filed an ex parte application
with the Magistrate Judge to extend the July
26th deadline. The Magistrate Judge denied
this
ex
parte
[application]
as
well,
deferring to this Court. (ECF No. 70.) With
the Court’s current July 26th deadline for a
supplemental report, [Defendant] expects that
Dr. Brooker will prepare an additional report
if [Defendant’s] Request for Reconsideration
is successful and Dr. Brooker is allowed to
conduct the mental examination. [Defendant]
requests that this Court modify the discovery
cut-off date to allow [Defendant] sufficient
time to evaluate the recent production of
documents, to allow for a determination of
[Defendant’s]
Request
for
Reconsideration . . . , and to allow for Dr.
Brooker to conduct the mental examination of
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Plaintiff, if this Court grants [Defendant’s]
Request for Reconsideration.

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(Id. at 13:13-14:4.)
Plaintiff

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opposes

Defendant’s

request

to

modify

the

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status order, arguing “[t]here is no explanation for why Dr.

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Brooker has been unavailable in the two intervening weeks to

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provide the basic expert report information that should have been

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provided more than four months ago[,]” and “Defendant has now had

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weeks

to

review

Plaintiff’s

supplemental

document

production,

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[but] has yet to identify a single page of medical records that

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had

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Plaintiff

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“Defendant has not shown good cause for a modification of the

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[status] order beyond what has already been stipulated to by the

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parties.” (Id. at 7:18-8:19.)

not

been

previously

further

produced.”

rejoins

that

(Pl.’s

under

Opp’n

the

6:20-7:2.)

circumstances,

Defendant has not shown that whatever portions of the

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status order it seeks to amend should be amended

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16(b)’s

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precisely how the amendment he seeks would affect the prescribed

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discovery completion date, the law and motion last hearing date,

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or other currently scheduled dates.

“good

cause”

standard.

Nor

has

under Rule

Defendant

indicated

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The status order “controls the course of the action

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unless the court modifies it.” Fed. R. Civ. P. 16(d). A status

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order “may be modified only for good cause and with the judge’s

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consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s ‘good cause’

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standard primarily considers the diligence of the party seeking

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the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604,

609

(9th

Cir.

1992).

“Moreover,
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carelessness

is

not

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compatible with a finding of diligence and offers no reason for a

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grant of relief.” Id. “If th[e] party [seeking amendment] was not

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diligent, the inquiry should end.” Id.

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As

the

Magistrate

Judge

stated

in

response

to

Defendant’s diligence arguments:
the court rejects [D]efendant’s argument that
it “is without fault in creating the current
situation because it has acted diligently.”
Convinced
of
its
diligence,
[D]efendant
argues that it was “unexpected that the Court
would set a one-week deadline to prepare and
serve a supplemental expert report.” ECF No.
68 at 6. But it was precisely because of its
failure to provide a complete expert report
in the first instance that [P]laintiff asked
the court to order supplementation, and
[D]efendant has been on notice since at least
April 2013 that the expert’s report was
deficient. Moreover, the one-week deadline
was set because Judge Burrell, in the
[status] order, defined “completed” in the
context of discovery to mean that “any
disputes relative to discovery shall have
been resolved by appropriate orders, if
necessary, and, where discovery has been
ordered, the order has been complied with or,
alternatively, the time allowed for such
compliance shall have expired.” ECF No. 17 at
2. Here, the parties’ discovery motions were
set for hearing on July 17, 2013, with less
than one week’s time to comply with any
discovery
orders
before
the
discovery
deadline. Therefore, the one-week deadline
should not have been unexpected.
(Order 2:18-3:3, ECF No. 70.)
For the stated reasons, Defendant’s request to modify
the status order is DENIED.
Dated:

August 28, 2013

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