Madrid et al v. Kroger Co
Filing
28
MEMORANDUM DECISION denying 25 Motion for Protective Order. Signed by Magistrate Judge Dustin B. Pead on 3/31/15 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
PASON MADRID, an individual
MEMORANDUM DECISION
Plaintiff,
Case No. 1:14-cv-00004-TC-DBP
v.
District Judge Tena Campbell
KROGER CO., an Ohio corporation, JOHN
DOES 1-3,
Magistrate Judge Dustin B. Pead
Defendants.
I.
INTRODUCTION
This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). (Dkt. 21.) Plaintiff
brings this diversity action to recover for personal injuries he sustained allegedly while
performing repair work on Defendant Kroger’s refrigeration system at its Layton, Utah facility.
The matter is presently before the Court on Plaintiff’s motion for a protective order. (Dkt. 25.)
II.
ANALYSIS
After reviewing the parties’ pleadings, the Court finds that Plaintiff’s motion for a protective
order is premature. 1 Under Rule 35, the Court has discretion to order an exam only “on motion
for good cause . . . .” Fed. R. Civ. P. 35(a)(2); see Schlagenhauf v. Holder, 379 U.S. 104 (1964).
Given that no order has been sought, let alone entered, there is nothing from which the Court can
presently protect Plaintiff.
1
Plaintiff conceded that another issue raised in the motion was mooted by the time Plaintiff filed
his reply. (See Dkt. 27 at 1–2.)
Page 1 of 2
Ordinarily, the Court might construe the briefing as a defense motion for a Rule 35 exam, but
it declines to do so here because the parties’ briefing is insufficient to allow for meaningful
analysis of the issues. Plaintiff offers its conclusion that “[c]learly, a specialist retained to opine
on Plaintiff’s vocational abilities does not fall within Rule 35.” 2 (Dkt. 27 at 2.) Plaintiff also
suggests that such specialists are biased. (Dkt. 25 at 4.) Plaintiff does not; however, offer any
legal authority or reasoning that might explain how he reached these conclusions. 3
Defendant’s briefing likewise contains sparse analysis of the issues. The only justification
Defendant asserts for the examination is that Plaintiff is meeting with his own vocational
rehabilitation expert, so he should also have to meet with Defendant’s. (Dkt. 26 at 3.) While the
Court appreciates brevity, it will not undertake the parties’ roles as advocates.
III.
ORDERS
For the reasons set forth above, the Court DENIES Plaintiff’s motion to for protective order
because all matters discussed therein are either moot or premature. (Dkt. 25.)
Dated this 31st day of March, 2015.
By the Court:
Dustin B. Pead
United States Magistrate Judge
2
The Court notes that the question of whether a party can be compelled to attend a Rule 35 exam
conducted by a vocational rehabilitation expert has been addressed by other courts and those
courts have not reached identical results. Compare Storms v. Lowe's Home Centers, Inc., 211
F.R.D. 296, 298 (W.D. Va. 2002), with Schaeffer v. Sequoyah Trading & Transp., 273 F.R.D.
662, 663 (D. Kan. 2011) and Fischer v. Coastal Towing Inc., 168 F.R.D. 199, 201 (E.D. Tex.
1996). Thus, the answer here appears to be less clear than Plaintiff suggests.
3
The Court also denies the motion for a protective order because it does not find that this terse
statement constitutes the good cause required for a protective order.
Page 2 of 2
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