Johnson v. Peay et al

Filing 28

MEMORANDUM DECISION AND ORDER granting 18 Motion for Extension of Time; granting 19 Motion for Amended Scheduling Order (Expert Discovery due by 4/29/2016, Motions due by 6/1/2016, Final Pretrial Conference set for 10/24/2016 at 03:00 PM in Rm 3.400 before Judge Tena Campbell, 5-Day Jury Trial set for 11/14/2016 at 08:30 AM in Rm 3.400 before Judge Tena Campbell); denying 19 Motion to Compel Rule 35 IME. Signed by Magistrate Judge Brooke C. Wells on 11/13/15 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
KRISTINE BIGGS JOHNSON,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

GRANTING PLAINTIFF’S MOTION TO
EXTEND FACT DISCOVERY,

DANIEL PEAY, a Morgan County Sheriff's
Sergeant, MORGAN COUNTY, a political
subdivision, and JOHN AND JANE DOES 110,

GRANTING DEFENDANTS’ MOTION
FOR AN AMENDED SCHEDULING
ORDER, and

Defendants.

DENYING DEFENDANTS’ MOTION TO
COMPEL RULE 35 INDEPENDENT
MEDICAL EXAMINATION OF
PLAINTIFF

Case No. 1:14-cv-147-TC-BCW
District Judge Tena Campbell
Magistrate Judge Brooke C. Wells
District Judge Tena Campbell has referred this case to the undersigned pursuant to 28
U.S.C. §636(b)(1)(A).1 Before the Court are the following motions: (1) Plaintiff Kristine Biggs
Johnson’s (“Plaintiff”) Motion for Extension of Time for Fact Discovery,2 (2) Defendants Daniel
Peay and Morgan County’s (“Defendants”) Motion for Scheduling Order,3 and (3) Defendant’s
Motion to Compel Rule 35 IME of Plaintiff.4 On November 5, 2015, the Court held oral
argument on these motions. At the hearing, Plaintiff was represented by Mr. Robert Sykes and
1

Docket no. 15.

2

Docket no. 18.

3

Docket no. 19.

4

Id.

Defendants were represented by Mr. Peter Stirba and Ms. Julia Kyte. At the conclusion of the
hearing the Court took the matters under advisement.5 Since oral argument, the Court has further
considered the arguments made by counsel in their briefs and at the hearing, the procedural
posture of the case, and relevant case law. Now being fully informed, the Court issues the
following Memorandum Decision and Order.
BACKGROUND
On November 24, 2012, Plaintiff was shot by police officer Daniel Peay following a
vehicular pursuit. The incident resulted in Plaintiff losing her left eye. Plaintiff’s First Amended
Complaint alleges five causes of action against officer Peay and his employer Morgan County:
(1) excessive deadly force in violation of the Fourth Amendment (against Defendant Peay); (2)
deprivation of life and liberty without due process in violation of the Fifth and Fourteenth
Amendments (against Defendant Peay); (3) unlawful or deficient policies, procedures, and/or
protocols (against Defendant Morgan County ); (4) failure to train and/or supervise (against
Morgan County); and (5) violation of state civil rights (against all defendants).
The motions currently at issue relate to discovery that is yet to be completed in the case.
Plaintiff’s Motion to extend fact discovery seeks that the Court extend the existing Scheduling
Order due to difficulties that have occurred in arranging and completing depositions of law
enforcement officers that may have discoverable information and allow for additional written
discovery that may result from additional depositions.
Defendants Peay and Morgan County have moved to amend the schedule to allow
additional time in order to compel Plaintiff to undergo a mental examination pursuant to Rule 35

5

Docket no. 27.

2

of the Federal Rules of Civil Procedure, on the ground that Plaintiff has placed her mental
condition at issue.
ANALYSIS
I.

Amendments to the Scheduling Order
Plaintiff seeks to extend the dates for fact discovery in this case due to significant

difficulties in arranging and completing depositions of law enforcement officers that may have
relevant discoverable information. In addition, Plaintiff requests an extension of fact discovery
because recent depositions “have uncovered two or three additional persons that Plaintiff would
like to depose. Information from the completed depositions also suggested additional written
discovery that Plaintiff seeks to submit.”6 Defendants oppose this motion and argue the
additional depositions are nothing more than an attempt to embark on a “fishing expedition.” In
addition, Defendants seem to argue that Plaintiff has not been diligent in meeting the existing
deadlines and that if the dates are moved, other dates in the current schedule will need to be
extended to accommodate the extended fact discovery.
Rule 16(b)(4) provides “a schedule may be modified only for good cause and with the
judge’s consent.” The decision whether to modify a scheduling order “to extend or reopen
discovery is committed to the sound discretion” of the Court.7 In exercising its discretion, the
Court considers the following factors: (1) whether trial is imminent; (2) whether the request to
reopen or extend discovery is opposed; (3) whether the non-moving party would be prejudiced;
(4) whether the moving party was diligent in obtaining discovery within the guidelines
established by the Court; and (6) the likelihood that the discovery will lead to relevant evidence.”

6

Docket no. 18.

7

Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987).

3

Applying the Smith factors, the Court finds good cause exists to that reopen discovery for
the limited purpose of allowing Plaintiff to depose the police officers whose depositions due to
scheduling conflicts have not been completed and “two or three additional persons.” Good cause
also exists to allow for very limited written discovery where deemed appropriate and as restricted
as explained below.
First, trial is scheduled to begin on October 3, 2016, a little less than a year from now.
Thus, trial is not imminent. Second, the motion is opposed. Third, the Court finds Defendants
have failed to establish more than a minimal amount of prejudice. Fourth, the Court finds that
based upon the information included in the briefs and at oral argument both parties have been
reasonably diligent in obtaining discovery without court intervention within the guidelines
established by the Court. The Court further finds that the delay in the deposition of at least
officer Christian Peay may have been due to a lack of current contact information. Fifth, in light
of the events described in the briefs, it seems unlikely that some of the discovery currently
sought could have been detected or foreseen when the current schedule was established. Finally,
the Court finds that it is very likely that the additional discovery sought will result in relevant
evidence.
Furthermore, and perhaps most importantly, justice favors allowing a claim to be tried on
the merits. The Court is obligated to manage the case effectively and within the scope of federal
and local rules, with the purpose of facilitating the parties’ presentation of a thoroughly prepared
case before the District Court. Here, the Court finds good cause exists for an extension of the
discovery deadline for the limited purposes of deposing additional witnesses who were
previously noticed for depositions but due to scheduling concerns have not been deposed. In
addition, the Court finds good cause exists to allow Plaintiff to depose two or three additional

4

witnesses as deemed appropriate. Specifically, the deposition of Defendant Daniel Peay’s
brother, former officer Christian Peay appears to be quite relevant. Christian Peay was present at
the time of the incident and may provide additional insight on the circumstances surrounding the
shooting and his brother Daniel Peay’s state of mind. Therefore, the Court will extend the fact
discovery deadline to December 31, 2015 in order to accommodate additional depositions and
written discovery.
In addition, it is natural to assume that some limited written discovery will flow from the
additional depositions. Therefore the Court will allow no more than three interrogatories, three
requests for production of documents and two requests for admission. These written discovery
requests are not to include discrete subparts.
II.

Rule 35
Pursuant to Rule 35 of the Federal Rules of Civil Procedure, Defendants request that the

Court order Plaintiff to undergo a mental examination. According to Defendants, “Plaintiff has
placed her mental status at issue” through allegations in her complaint that state in part, “[a]s a
direct and proximate result of the aforementioned conduct of Defendants, Ms. Johnson has
suffered and will continue to suffer physical, emotional and psychological distress, mental
anguish, the nature and amount of which will be determined at trial.”8 Specifically, Defendants
seek approval for Plaintiff to be examined by Dr. Noel Gardner and Dr. David Ranks.
Rule 35(a)(1) and (2) of the Federal Rules of Civil Procedure provide, in relevant part:
(1) The court where the action is pending may order a party whose mental or physical
condition…is in controversy to submit to a physical or mental examination by a
suitably licensed or certified examiner.

8

First Am. Compl. At ¶ 129. See also ¶ 132 (“As a direct and proximate result of the aforementioned conduct of
Defendants, and in addition to damages set forth above, Plaintiff has suffered and will continue to suffer emotional
and psychological distress and mental anguish, the exact nature and amount of which will be determined at trial.”)

5

(2) (A) The order may be made only on motion for good cause and on notice to all parties
and the person to be examined…
Accordingly, the party seeking to obtain relief under Rule 35 must make an affirmative
showing that the mental or physical condition of the party whose examination is sought actually
is “in controversy” and that “good cause” exists for the examination: “mere conclusory
allegations of the pleadings” or “mere relevance to the case” is not sufficient.”9 Furthermore, the
decision to grant or deny a Rule 35 examination is committed to the sound discretion of the
Court.10
In addition, Rule 26 of the Federal Rules of Civil Procedure provides the Court with the
authority to place limitations on discovery. For example, Rule 26(b)(2)(C) provides in relevant
part:
On motion or on its own, the Court must limit the frequency or extent of
discovery otherwise allowed by these rules…if it determines that: (i) the
discovery sought is unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery had ample opportunity to obtain the
information by discovery in the action; or (iii) the burden or expense of the
proposed discovery outweighs its likely benefit, considering the needs of the case,
the amount in controversy, the parties’ resources, the importance of the issues at
stake in the action, and the importance of the discovery in resolving the issues.
Here, as to Rule 35’s “in controversy requirement,” the complaint includes what appear
to be boilerplate statements accompanying Plaintiff’s claims that her Constitutional rights have
been violated. Importantly, Plaintiff does not plead a specific cause of action for emotional
distress or damage.11 Additionally, although the complaint appears to allege ongoing mental

9

Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964).

10

See O’Quinn v. New York University Medical Center, 163 F.R.D. 226, 228 (S.D.N.Y. 1995).

11

See Gomez v. Lozano, No. 09-22988-CIV, 2010 WL 5014100 at *2 (S.D. Fla. Dec. 3, 2010)(unpublished)(“Courts
considering the issue of whether to order a mental examination under Rule 35 have repeatedly held that where a
plaintiff makes a simple claim of emotional distress without more, that plaintiff has not placed his mental condition
at issue.”)

6

harm, counsel for the Plaintiff represented at the hearing that the allegations relating to emotional
harm were inadvertently not removed when Plaintiff amended her complaint. Therefore, the
Court finds Plaintiff’s mental status is not sufficiently “in controversy” for purposes of Rule 35.
Next, Defendants’ arguments seem to rest heavily on case law that states “[a] plaintiff in
a negligence action who asserts mental or physical injury…places that mental or physical injury
clearly in controversy and provides the defendant with good cause for an examination to
determine the existence and extent of such asserted injury…”12 While the Court recognizes this
as good cause law, the instant case differs in an important respect. This is a civil rights case
where negligence has not been alleged as a separate cause of action. Therefore, as thoroughly
argued at oral argument and in Plaintiff’s opposition memorandum, this case concerns the
reasonableness of Defendant Peay’s use of deadly force in this circumstance. The Court agrees
with Plaintiff’s argument that what Plaintiff’s state of mind or mental status was at the time of
the shooting is likely irrelevant or very minimally relevant. Further, any benefit that may be
derived or any arguments related to assistance in aiding Defendants’ defenses are tenuous at best.
As noted in the briefing and at the hearing, Plaintiff has asserted that she has not received any
mental health treatment either before or after the accident. Accordingly, Plaintiff correctly
argues that this is a different situation than cases where an individual has a set amount of
emotional suffering that will be measured by examining Plaintiff’s mental status pre- and postaccident.
Similiarly, it seems inappropriate considering the circumstances of this case that Plaintiff
should be subjected to a mental examination where the crux of her case is based on physical
harm. The Court has also taken into account the need for Plaintiff to travel to Utah and the

12

Schlagenhauf, at 118.

7

expense and burden that will place on her. Considering the forgoing, pursuant to Rule 26, any
benefit of a Rule 35 examination is outweighed by the burden placed on Plaintiff and the lack of
relevant evidence likely to be obtained.
Thus, the Court in exercising its discretion finds that Defendants have not provided the
requisite “in controversy” or “good cause” showing in order to require Plaintiff to undergo a
Rule 35 mental examination.
CONCLUSION & ORDER
For the foregoing reasons, the Court HEREBY ORDERS that:
(1) Plaintiff’s Motion for Extension of Time for Fact Discovery13 is GRANTED.
(2) Defendants’ Motion for Scheduling Order14 is GRANTED.
(3) Defendants’ Motion to Compel Rule 35 IME of Plaintiff15 is DENIED.
(4) Accordingly, the current Scheduling Order16in effect shall be amended as follows:
a. Last Day to serve written fact discovery:

12/1/2015

b. Close of fact discovery:

1/1/2016

c. Plaintiff’s Rule 26(a)(2) expert reports:

1/15/2016

d. Defendants’ Rule 26(a)(2) expert reports:

2/15/2016

e. Counter Reports:

3/1/2016

f. Close of Expert Discovery & evaluate for settlement:

4/29/2016

g. Dispositive Motion Deadline:

6/1/2016

13

Docket no. 18.

14

Docket no. 18.

15

Id.

16

Docket no. 9.

8

h. Trial and Trial Preparation
a. Rule 26(a)(3) Pretrial Disclosures17
i. Plaintiff

9/12/2016

ii. Defendant

9/26/2016

b. Objections to Rule 26(a)(3) Disclosures
(if different than 14 days provided in Rule)
c.
d.
e.
f.

Special Attorney Conference18 on or before
Settlement Conference19 on or before
Final Pretrial Conference
Trial
i. Five Day Jury Trial to begin
8:30 a.m.

10/10/2016
10/10/2016
3:00 PM on 10/24/2016

11/14/2016

(5) Defendants are to provide Plaintiff with the last known contact information for
Officer Christian Peay so his deposition may be scheduled as soon as possible.
IT IS SO ORDERED.
DATED this 13 November 2015.

Brooke C. Wells
United States Magistrate Judge

17

The Parties must disclose and exchange any demonstrative exhibits or animations with the
26(a)(3) disclosures.
18

The Special Attorneys Conference does not involve the Court. Counsel will agree on voir dire
questions, jury instructions, a pre-trial order and discuss the presentation of the case. The parties
should schedule witnesses to avoid gaps and disruptions. The parties should mark exhibits in a
way that does not result in duplication of documents. The pre-trial order should include any
special equipment or courtroom arrangement requirements.
19
The Settlement Conference does not involve the Court unless the Court enters a separate order.
Counsel must ensure that a person or representative with full settlement authority or otherwise
authorized to make decisions regarding settlement is available in person or by telephone during
the Settlement Conference.

9