Camayo et al v. John Peroulis & Sons Sheep, Inc. et al

Filing 123

MINUTE ORDER : Granting 105 Peroulis Defendants' Motion to CompelExamination of Plaintiff Juvencio Samaniego Damian Pursuant to Fed. R. Civ. P. 35(a); Granting 106 Plaintiff's Motion for Clarification and/or Partial Reconsideration ; Granting 121 Plaintiffs' Amended Motion for a Clarification and/or Partial Reconsideration. By Magistrate Judge Michael J. Watanabe on 7/5/2012.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-00772-MSK-MJW
(As consolidated with 11-cv-01132-REB-MJW)
ROEL ESPEJO CAMAYO; and,
JUVENCIO SAMANIEGO DAMIAN,
JHOSEMAR SAMANIEGO FERNANDEZ, and
SILVIO INGA BRUNO,
Plaintiffs,
v.
JOHN PEROULIS & SONS SHEEP, INC.;
LOUIS PEROULIS;
STANLEY PEROULIS; and
CRISOLOGO DAMIAN,
Defendants.

MINUTE ORDER

Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Plaintiff’s Motion for Clarification and/or Partial
Reconsideration (docket no. 106) is GRANTED finding good cause shown.
Interrogatory No. 11 does not include immigration applications, and Plaintiffs need not
respond further to Interrogatory No. 11.
It is FURTHER ORDERED that Plaintiffs’ Amended Motion for a Clarification
and/or Partial Reconsideration (docket no. 121) is GRANTED finding good cause
shown. Interrogatory No. 11 does not include immigration applications. There is no
need for a response by Defendants to docket no. 121, noting that the relief sought is the
same as docket no. 106 above. Furthermore, D.C.COLO.LCivR 7.1 C states, in
pertinent part, “. . . Nothing in this rule precludes a judicial officer from ruling on a
motion at any time after it is filed.”
It is FURTHER ORDERED that Peroulis Defendants’ Motion to Compel
Examination of Plaintiff Juvencio Samaniego Damian Pursuant to Fed. R. Civ. P. 35(a)
(docket no. 105) is GRANTED finding good cause shown. The parties are to forthwith
meet, confer, and clear a date, time, and place for the Rule 35 examination with Dr.
Stephen Moe of Plaintiff Juvencio Samaniego Damian. It is anticipated that the

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examination will last not more than 3.5 hours. The parties understand that given the
need for an interpreter and possible breaks by Plaintiff Damian, additional time may be
necessary, and will be permitted if reasonably necessary. The parties are to meet,
confer, and agree upon an interpreter. The Peroulis Defendants will pay for the cost of
the interpreter. The scope of the examination will be Plaintiff Damian’s emotional and
psychological conditions at issue in this case related to the area of psychiatry. The
examination will consist of a psychiatric evaluation, which may include a verbal history
and a brief written screening of cognitive assessment. No invasive tests will be
conducted on Plaintiff Damian. The examination will take place at Dr. Moe’s office
located at 777 East 1st Street, Suite 106-C, Denver, Colorado 80230. The Peroulis
Defendants shall pay for Plaintiff Damian’s reasonable travel time and expense
(including transportation costs and a meal stipend) and reimburse his lodging so the
Rule 35(a) mental examination can take place at Dr. Moe’s office in Denver, Colorado.
Audio recording of the examination only will be permitted for the sole purpose of
confirming the accuracy of the translation and my not be used for any other purpose
except by further Order of Court. The interpreter may be present during the
examination.
In Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964), the Supreme Court stated
that Rule 35 “require[s] an affirmative showing by the movant that each condition as to
which the examination is sought is really and genuinely in controversy and that good
cause exists for ordering each particular examination.” The burden of demonstrating
good cause rests with the moving party. See Doe v. District of Columbia, 229 F.R.D.
24, 26 (D.D.C. 2005). The requirement of good cause is not a formality; the court must
genuinely balance the need for the information with the right to privacy and safety of the
party. See Schlagenahuf, 379 U.S. at 118. Rule 35 states that the examination may be
conducted by a suitably licensed or certified examiner. Fed. R. Civ. P. 35(a)(1). Here, I
find that Defendants have established good cause for a Rule 35(a) examination of
Plaintiff Damian. Plaintiff Damian has placed his mental and physical condition “in
controversy.” I further find that Dr. Stephen Moe is a “suitably licensed or certified
examiner” as required pursuant to Fed. R. Civ. P. 35(a)(1).
Date: July 5, 2012