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McFadden v. Meeker Housing Authority

United States District Court, D. Colorado

April 2, 2018

MEGAN MCFADDEN, LONNIE WHITE, and ANTONIO “A.J.” WHITE, Plaintiffs,
v.
MEEKER HOUSING AUTHORITY, a Property Management Company, MELINDA PARKER, MICHELLE BUCKLER, EDY GEORGE, and, STACIE KINCHER, Defendants.

          ORDER OVERRULING OBJECTION TO MAGISTRATE JUDGE'S NONDISPOSITIVE ORDER

          William J. Martinez United States District Judge.

         Before the Court is Plaintiffs' “Objections to Magistrate Judge's Orders Granting MHA Defendants' Motion to Compel Fed.R.Civ.P. 35 Psychiatric Examinations and MHA Defendants' Motion for Extension of Time to Serve IME Reports” (“Objection”). (ECF No. 240.) The Objection refers to two of United States Magistrate Judge Gordon P. Gallagher's orders filed on August 8, 2017. (See ECF Nos. 234 & 235.) Defendants filed no response. For the reasons set forth below the Court overrules the Objection.

         I. LEGAL STANDARD

         “Discovery is a nondispositive matter . . . .” Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997). When reviewing an objection to a magistrate judge's non-dispositive ruling, the Court must affirm the ruling unless it finds that the ruling is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); Ariza v. U.S. West Commc'ns, Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). The clearly erroneous standard “requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (internal quotation marks omitted). The “contrary to law” standard permits “plenary review as to matters of law, ” see 12 Charles Alan Wright et al., Federal Practice & Procedure § 3069 (2d ed., Apr. 2016 update), but the Court will set aside a magistrate judge's order only if it applied the wrong legal standard or applied the appropriate legal standard incorrectly, see Wyoming v. U.S. Dep't of Agric., 239 F.Supp.2d 1219, 1236 (D. Wyo. 2002). In short, “[b]ecause a magistrate judge is afforded broad discretion in the resolution of non-dispositive . . . disputes, the court will overrule the magistrate judge's determination only if his discretion is abused.” Ariza, 167 F.R.D. at 133.

         II. BACKGROUND

         The Scheduling Order, entered on January 5, 2017, set a May 5, 2017 deadline for all parties to “designate all experts and provide opposing counsel with all information specified in Fed.R.Civ.P. 26(a)(2).” (ECF No. 94 at 17.) On that deadline, Defendants filed a Rule 26(a)(2) disclosure, disclosing (among others) Dr. Richard F. Spiegle, Psy.D., who “is expected to testify consistent with his independent psychological examinations of Megan McFadden and A.J. White, to be scheduled, consistent with Fed.R.Civ.P. 26(a)(2)(B) [governing retained experts' reports]. Dr. Spiegle is expected to serve his reports after the forthcoming examinations.” (ECF No. 241-1 at 2.)

         Eleven days later (May 16), Defendants filed a “Motion to Compel Fed.R.Civ.P. Rule 35 Psychiatric Examination” (“Rule 35 Motion”). (ECF No. 152.) Defendants sought the Court's approval to have Dr. Spiegle conduct an independent medical examination (“IME”) of Plaintiff A.J. White, and to have a till-then-undisclosed psychiatrist, Dr. Richard Kleinman, M.D., conduct an IME of Plaintiff McFadden. (Id. at

         9-10.)[1]

         Plaintiffs responded with a number of counterarguments. As relevant here, Plaintiffs asserted that the Rule 35 Motion should be denied because:

• under the circumstances, an IME could only be used to generate an expert report, but the deadline for expert disclosures had already passed and Defendants had made no “excusable neglect” argument under Federal Rule of Civil Procedure 6(b)(1)(B) (permitting courts to extend deadlines “after the time has expired if the party failed to act because of excusable neglect”); and
• Defendants had not demonstrated good cause to conduct IMEs of A.J. White and McFadden.

(ECF No. 184 at 3-14.)

         As to Plaintiffs' procedural arguments, Defendants stated in reply that the Scheduling Order and Rule 35 “do not set a time period for requesting a Rule 35 examination.” (ECF No. 215 at 8.) Defendants further argued that they “should not be prevented from developing relevant evidence under Rule 35 due to the uncertainty in Rule 35 or the Scheduling Order. Justice requires [that] Defendants be provided the opportunity to develop evidence to respond to Plaintiffs' designated experts [regarding Plaintiffs' psychological conditions].” (Id. at 9.)

         The Court referred the Rule 35 Motion to Judge Gallagher. (ECF No. 154.) Three days after Plaintiffs filed their response to the Rule 35 Motion, Defendants filed a “Motion for Extension of Time to Serve Idependant [sic] Medical Examination Reports” (“Motion for Extension”). (ECF No. 195.) Defendants argued that “[t]he Court will not rule on Defendants' [Rule 35] Motion before the deadline to serve expert reports has passed.” (Id. ΒΆ 3.) This, of course, was disingenuous: the relevant deadline had already ...


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