Smith v. Cafe Asia

Opinion

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 -2-

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.) -3-

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 -4-

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 -5-

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