Anderson et al v. Kroger Co
Filing
49
MEMORANDUM DECISION AND ORDER denying without Prejudice 43 Motion for Protective Order. Signed by Magistrate Judge Dustin B. Pead on 4/7/2016. (jds)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
ALAN and KIMBERLY ANDERSON,
MEMORANDUM DECISION & ORDER
Plaintiffs,
Case No. 2:14-cv-00833
v.
District Court Judge Robert J. Shelby
THE KROGER, CO., and DOES 1-V,
Magistrate Judge Dustin B. Pead
Defendant.
I.
INTRODUCTION
This case was referred to Magistrate Judge Dustin B. Pead by District Court Judge Robert
J. Shelby pursuant to 28 U.S.C. § 636(b)(1)(A) (Dkt. No. 24). On February 11, 2015, Judge
Shelby issued a Short Form Discovery Order outlining specific short form procedures to be
followed in all discovery related disputes (Dkt No. 17). Consistent with the short form
procedure, the parties filed meet and confer certifications (Dkt. Nos 40, 44) indicating they were
unable to resolve the pending discovery disputes.
II.
DISCOVERY DISPUTE
On February 19, 2016, Defendant The Kroger Co. (“Kroger”) provided Plaintiffs Alan
and Kimberly Anderson (the “Andersons”) with Notice that it had unilaterally scheduled a Rule
35(a) physical examination of Ms. Kimberly Anderson to be held on February 26, 2016, at 10:00
a.m. (Dkt. No. 32). Thereafter, the parties agreed to put matters “on hold” pending resolution of
a determination as to whether the parties would agree to engage in mediation (Dkt. 40).
Unable to reach an agreement as to mediation, the Andersons filed their pending motion
for a protective order related to the Rule 35 examination arguing Kroger’s February Examination
Notice lacks good cause, was filed after the close of fact discovery and fails to provide sufficient
notice (Dkt. No. 43). In response, Kroger argues it is within the discretion of the court to allow
Rule 35 examinations after discovery cutoff and the issue is moot since the February 26, 2016,
examination date has expired (Dkt. No. 46).
III.
ANALYSIS
Kroger argues the Andersons’ motion for protective order should be denied as moot or
premature since the February 26, 2016, Rule 35 examination date has passed and no new
examination date has been requested.
A federal court “must resolve a real and substantial controversy admitting of specific
relief through a decree of conclusive character, as distinguished from an option advising what the
law would be upon a hypothetical state of facts.” In Re: Special Grand Jury 89-2, 450 F.3d
1156, (10th Cir. 2006)(citing Preiser v Newkirk, 422 U.S.395, 401 (1975)).
Here, Kroger acknowledges that the February Rule 35 Notice expired and indicates only
that it “may” file a new request and motion for Rule 35 examination (Dkt. No. 46, p. 3). The
court interprets Kroger’s statement as an admission that the current notice is no longer ripe and
an indication that Kroger may choose not to proceed with a Rule 35 examination of Ms.
Anderson. As a result, any ruling the court issues, at this juncture, would be advisory in nature
since absent a current notice of Rule 35 examination the controversy appears to be only a
hypothetical.
For these reasons, the court DENIES the Andersons’ motion for protective order without
prejudice (Dkt. No. 43).
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DATED this 7th day of April, 2016.
____________________________________
Dustin Pead
U.S. Federal Magistrate Judge
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