Free Motion to Compel - District Court of Colorado - Colorado

Case 1:00-cv-02350-LTB-MJW

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-2350-LTB-MJW PAULETTE GOMEZ, Plaintiff, v. KING SOOPERS, INC., Defendant.

DEFENDANT'S MOTION TO COMPEL RULE 35 EXAMINATION

Defendant King Soopers, Inc. ("Defendant"), through its attorneys, Sherman & Howard L.L.C., hereby moves this Court for an Order compelling Plaintiff to submit to a Rule 35 examination. In support of this motion, Defendant states as follows: 1. Defendant has sought in good faith to have Plaintiff examined by Defendant's

vocational rehabilitation expert, Judy Kaye Lockwood. Defendant requested this examination via letters dated August 9, 2005, and August 19, 2005. See Exhibit A. In the second letter, counsel for Defendant stated that they would file a motion to compel if there was no agreement on a Rule 35 examination by August 24, 2005. To date, Plaintiff's counsel has not responded to Defendant's request. Defendant now files this motion seeking a Court order granting Defendant's requested examination pursuant to F.R.C.P. 35(a).

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2.

When the mental or physical condition of a party is in controversy, the Court may

"order the party to submit to a physical or mental examination by a suitably licensed or certified examiner" when there is good cause for the examination. F.R.C.P. 35(a). 3. Plaintiff has placed her physical condition in controversy by claiming that she is a

qualified individual with a disability pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Compl. ¶ 42. Specifically, Plaintiff alleges that: Plaintiff is an individual with a disability, who with or without reasonable accommodation can perform the essential functions of her employment position and other positions with the Defendant; This disability or perceived disability substantially limits without limitation, Plaintiff's major life activity of working. Compl. ¶¶ 42, 45. A number of courts have held that making such assertions is sufficient to meet the first requirement under Rule 35. See Evenson v. The Dillon Companies, Inc., Civil Action No. 00-N-792 (D. Colo. Dec. 12, 2000) (Exhibit B, p. 1); Jeffreys v. LRP Publications, Inc., 184 F.R.D. 262, 263 (E.D. Pa. 1999); Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 131 (E.D. Pa. 1997); Ali v. Wang Labs., Inc., 162 F.R.D. 165, 168 (M.D. Fla. 1995). 4. As to the second requirement, the fact that Plaintiff is claiming to be an individual

with a disability also constitutes good cause for the examination. See Douris v. County of Bucks, 2000 WL 1358481, *2 (E.D. Pa. Sept. 21, 2000) (Exhibit C, p. 2) ("Because liability under the ADA rests on whether Plaintiff is disabled, Defendants have good cause to seek an examination to determine whether Plaintiff is disabled."); Sarko, 170 F.R.D. at 131 (holding that defendant had good

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cause for examination because the plaintiff claimed she was disabled under the ADA); Ali, 162 F.R.D. at 168 (same). 5. In addition, no conditions should be placed on the examination, such as the presence

of a third party or a recording device. See Evenson, (Exhibit B, pp. 3-4 ) (no third party entitled to be present during examination by defendant's vocational rehabilitation expert); Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 624 (D. Kan. 1999) (finding that the examinee must establish good cause within the meaning of F.R.C.P. 26(c) for each condition sought to be placed on a Rule 35 examination); Galieti v. State Farm Mut. Auto. Ins. Co., 154 F.R.D. 262, 265 (D. Colo. 1994) (holding that the party seeking a third party or recording device at a Rule 35 examination has the burden of convincing the court of the need for such conditions). 6. Defendant's expert is available to conduct the vocational examination on the

following dates at the following times: September 20, 2005 at 1:00 p.m., September 21, 2005 at 9:00 a.m., and September 22, 2005 at 1:00 p.m. The parties also can agree to another date and time that is mutually acceptable if the listed dates and times will not work. 7. In accordance with D.C.COLO.LCivR 7.1A, counsel for Defendant corresponded

with Plaintiff's counsel in an attempt to resolve this issue, but Plaintiff's counsel has failed to respond to the undersigned counsel's correspondence. WHEREFORE, Defendant respectfully requests that this Court order Plaintiff to appear for the examination outlined above with no conditions placed on the examination.

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Respectfully submitted this 1st day of September, 2005. SHERMAN & HOWARD L.L.C.

/s/ Edward J. Butler Raymond M. Deeny Edward J. Butler 90 South Cascade Avenue, Suite 1500 Colorado Springs, Colorado 80903 (719) 475-2440 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on September 1, 2005, I electronically filed the foregoing DEFENDANT'S MOTION TO COMPEL RULE 35 EXAMINATION with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Cecilia Serna, Esq. Law Offices of Cecilia M. Serna, Esq. 600 17th Street, Suite 2800 South Denver, CO 80202-5428 /s/ Peggy J. Barber, Secretary to Edward J. Butler

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