DeRosear v. Becker

Filing 60

ORDER - Defendant's motion to compel 48 is granted. Plaintiff shall make herself available for a deposition and to submit to a physical and mental examination with Dr. Tom Haley in Omaha, Nebraska, no later than September 26, 2011. Defendant's motion extend deadline to disclose defendant's experts with reports 58 is granted. Defendant shall have until October 3, 2011, to identify expert witnesses with reports. Ordered by Senior Judge Lyle E. Strom. (KBJ)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
LILA DEROSEAR,

)
)
Plaintiff,
)
)
v.
)
)
SHERRY BECKER,
)
)
Defendant.
)
______________________________)

8:10CV147

ORDER

This matter is before the Court upon defendant’s motion
to compel (Filing No. 48) and motion to extend deadline to
disclose defendant’s experts with reports (Filing No. 58).
Defendant moves the Court for an order compelling plaintiff to
appear for her deposition in this matter pursuant to Fed.R.Civ.P.
30, and, further, to submit to a physical and mental examination
pursuant to Fed.R.Civ.P. 35 on the same date plaintiff is in
Omaha for her deposition.
Counsel for the defendant has attempted to schedule
plaintiff’s deposition on numerous occasions in this action, as
well as in the prior state court action.

(See Exhibit 1A-M to

Defendant’s Index of Evidence in Support of Motion to Compel).
Counsel for plaintiff has not asserted that plaintiff’s
deposition should not be had; it is plaintiff’s counsel’s
position, however, that the plaintiff does not have the financial
means to travel back to Omaha for her deposition in this
jurisdiction.

In this jurisdiction:
“[T]here is a well-recognized,
general rule that a plaintiff is
required to make itself available
for a deposition in the District in
which the suit was commenced,
because the plaintiff has chosen
the forum voluntarily, and should
expect to appear there for any
legal proceedings, whereas the
defendant, ordinarily, has had no
choice in selecting the action’s
venue.” Archer Daniels Midland Co.
v. Aon Risk Servs., Inc., 187
F.R.D. 578, 588 (D. Minn. 1999).
This general rule is subject to
exception, “when the plaintiff can
make a compelling showing that its
application would impose an unduly
heavy burden.” Id. See also Gibbs
v. National Railroad Passenger
Corp., 170 F.R.D. 452 (N.D.
Ind.1997).
See Moore v. Nebraska Beef, Ltd., WL 3584390 (2010).
Fed.R.Civ.P. 35 allows for physical and mental
examinations when the plaintiff’s condition in this regard is at
issue.

It provides, in relevant part, that a Court “may order a

party whose mental or mental or physical condition . . . is in
controversy to submit to a physical or mental examination by a
suitably licensed or certified examiner.”
The complaint in this case alone establishes that the
plaintiff has placed her physical and mental condition at issue.
Further, after reviewing the briefs and indexes of evidence of
both parties, including the relevant affidavits concerning
plaintiff’s financial condition, the Court finds plaintiff has
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not made the requisite compelling showing that she will be unduly
burdened if compelled to appear in Omaha for her deposition.
Accordingly,
IT IS ORDERED:
1)
granted.

Defendant’s motion to compel (Filing No. 48) is

Plaintiff shall make herself available for a deposition

and to submit to a physical and mental examination with Dr. Tom
Haley in Omaha, Nebraska, no later than September 26, 2011.
2)

Defendant’s motion extend deadline to disclose

defendant’s experts with reports (Filing No. 58) is granted.
Defendant shall have until October 3, 2011, to identify expert
witnesses with reports.
DATED this 25th day of August, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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