Smith v. Cafe Asia ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ANDREI SMITH, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-0621 (RWR/JMF)
)
CAFÉ ASIA, et al., )
)
Defendants. )
______________________________)
MEMORANDUM ORDER
Plaintiff Andrei Smith brings this employment discrimination
and tort action against six individual defendants and his former
employer, Café Asia. On April 16, 2010, the defendants moved
under Rule 35 to compel Smith to submit to an independent medical
examination. The defendants’ motion identified the doctor who
would conduct the examination (Dr. Mark S. Lipian), his medical
specialty (“board certified clinical and forensic psychiatrist”),
a proposed date for the examination (June 15, 2010), the length
of the examination (“a total of eight (8) hours, commencing at
8:00 a.m. and ending at 5:00 p.m., with a one-hour break for
lunch”), and the type of the examination Dr. Lipian would conduct
and the areas about which he would inquire (“a clinical
psychiatric review, including a personal and social history,
educational and work history, medical history, . . . an
evaluation of the events which [Smith] claims were the cause of
his emotional damages in this action . . . [and a] mental status
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examination, which will evaluate [Smith’s] affect, mood, speech,
thought process, memory, sensorium, orientation, and other mental
functions”). (Defs.’ Mot. to Compel at 1-2.) The defendants
submitted with their motion an affidavit by Dr. Lipian that
described nature of the examination and his rationale for each
portion of the examination. (Defs.’ Mot. to Compel, Ex. 1
(“Lipian Aff.”) at ¶¶ 5-17.) The motion agreed to “a neutral
location to be determined by the parties.” (Defs.’ Mot. to
Compel at 1.)
Smith agreed to a Rule 35 psychological examination, but
opposed the defendants’ motion to compel the examination for two
reasons: the delay likely to occur having to await Dr. Lipian
becoming licensed to practice in the District of Columbia, and
the motion’s proposed participation of others in the conduct of
the examination whom the motion did not identify. (Pl.’s Opp’n
to Defs.’ Mot. to Compel, at 1, 4.) Nowhere in Smith’s
opposition did he object to the scope, length, or subject matter
of the defendants’ proposed examination.
By order entered on June 16, 2010, Magistrate Judge Facciola
granted the defendants’ motion to compel after the defendants
represented that Dr. Lipian had become licensed to practice in
the District of Columbia. The order directed that the exam be
completed before August 15, 2010. (Minute Order of June 16,
2010.)
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Although Local Civil Rule 72.2(b) allowed Smith to file
objections to the order, Smith did not do so. However, the
defendants filed a request for clarification of the order, based
on their concern that Smith would not attend the IME because he
“continue[d] to object to an examination of [his] ‘mental,
sexual, social, employment, and medical history[.]’” (Defs.’
Mot. for Clarif’n at 1.) The magistrate judge denied the
defendants’ request for clarification in an order noting that the
scope and length of the examination were never challenged in
response to the motion to compel, and declining to “clarify what
was not unclear in the first place” or “impose restrictions or
conditions on that examination that were not sought when they
should have been.” (Minute Order of July 12, 2010).
The parties now engage in nettlesome quibbling over that
order. Smith has filed objections, arguing that the order erred
by refusing “to consider any parameters” pertaining to the scope
and length of the IME. (Pl.’s Objns. at 1.) The defendants
oppose Smith’s objections and ask for the imposition of $4,290
sanctions against Smith. (Defs.’ Opp’n to Pl’s Objns. at 6, 10-
12.)
First of all, Smith’s quarrel is untimely. Smith responded
to the defendants’ motion for an IME without raising any
objection to any of the aspects of the IME that were spelled out
in detail in the very beginning of the motion. Smith provides
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absolutely no sound justification for his failure to put them at
issue. The time for Smith to object to the proposed aspects of
the IME was then, not now. Smith has waived any challenge on
this issue. See Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d
84, 95 (D.D.C. 2009) (noting that issues that could have been
raised before a magistrate judge but were not are waived).
Further, Smith has produced no authority supporting any
claim that the defendants’ motion for an IME was insufficiently
detailed. Where a defendant’s request for an IME contains the
specifics that the motion here contains, the request is
sufficiently detailed. See Calderon v. Reederei Claus-Peter
Offen, 258 F.R.D. 523, 526 (S.D. Fla. 2009) (finding that the
defendant “provided sufficient details to grant the request for
an IME [covering] all areas that the plaintiff claims to have
injured in the accident alleged in the complaint” where the
defendant’s motion identified the examining physician, identified
his medical specialty, identified the date and time of the
examination, identified the areas into which the physician would
inquire, and noted that the physician would be conducting a
physical examination). The cases Smith cites either support the
sufficiency of defendants’ details, such as Calderon, or are
clearly distinguishable. See Kador v. City of New Roads, No. 07-
682-D-M2, 2010 WL 2133889, at *3-4 (M.D. La. May 27, 2010)
(denying motion for IME where the motion lacked, among other
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things, a certification that the defendants conferred with the
plaintiffs in a good faith effort at resolving the dispute
concerning the IME, details concerning the location of the
examination, any description of the IME’s conditions or scope, or
even information about the length of time the examination would
last). Smith’s objections, then, will be overruled, but needless
quibbling over sanctions will not be entertained. The parties
shall abide fully with the magistrate judge’s order compelling
Smith to submit to the IME described in defendants’ April 16,
2010 motion.
CONCLUSION AND ORDER
Because the plaintiff did not timely object to the
magistrate judge’s order and because the plaintiff’s objections
lack merit, it is hereby
ORDERED that plaintiff’s objections [95] be, and hereby are,
OVERRULED. It is further
ORDERED that the defendants’ request for sanctions [97] be,
and hereby is, DENIED. It is further
ORDERED that plaintiff’s motion [96] to expedite be, and
hereby is, DENIED as moot.
SIGNED this 22nd day of July, 2010.
/s/
RICHARD W. ROBERTS
United States District Judge