Turner v. Imperial Stores

161 F.R.D. 89, 32 Fed. R. Serv. 3d 1292, 1995 U.S. Dist. LEXIS 4818, 1995 WL 217528
District Court, S.D. California·Decided April 7, 1995·No. Civ. No. 94-0750-E(CGA)·Published·Cited by 87 cases

Opinion

OPINION AND ORDER

AARON, United States Magistrate Judge.

I.

INTRODUCTION

This is a wrongful termination action arising out of the discharge of plaintiff Robin Turner from her position as a cashier and sales clerk at defendant Imperial Stores. In her complaint, Turner alleges a number of causes of action against defendants Imperial Stores and Christopher B. Wardrup, and requests damages on various grounds, including compensatory damages for losses resulting from “humiliation, mental anguish, and emotional distress.”

Defendants requested that Turner submit to a mental examination. Turner objected to this request. Defendants then filed a “Memorandum of Points and Authorities in Support of Petition to Obtain Court Order for Mental Examination of Plaintiff Pursuant to F.R.C.P. 35.” Plaintiff has filed an opposition to defendants’ petition. The court conducted a hearing regarding defendants’ request, after which the parties filed supplemental briefs in support of them positions.

The issue to be decided is whether Turner, by claiming damages for “emotional distress,” has placed her mental condition “in controversy” within the meaning of Rule 35(a) of the Federal Rules of Civil Procedure, thereby entitling defendants to request an independent mental examination of her. Because the court finds that Turner has not put her mental condition “in controversy” within the meaning of the Rule, defendants’ request for a court order authorizing the mental examination of Turner is denied.

II.

STATEMENT OF FACTS

On September 24,1991, Robin Turner submitted an application for employment to Imperial Stores. After interviewing with defendant Wardrup, a supervisor at Imperial Stores’ El Centro location, Turner was hired as a cashier. Turner was employed by Imperial Stores from October of 1991 until February 23, 1993. According to defendants, Turner was fired for taking an unauthorized one hour and ten minute break on February 22, 1993. At the time of her termination, Turner was the only African-American female employee of Imperial Stores. Turner alleges that she was both discriminated against and wrongfully terminated by defendants based upon her race and gender.

On April 8, 1994, Turner filed a complaint against defendants Imperial Stores and Wardrup in the Imperial County Superior Court, alleging a violation of Title VII of the Civil Rights Act of 1964, breach of contract, breach of the covenant of good faith and fair dealing, sex discrimination, fraud and deceit, defamation, violation of Labor Code section 1050, and violation of public policy. On May 12, 1994, defendants removed this action to the United States District Court for the Southern District of California.

Turner seeks to recover damages for breach of contract, and for losses incurred while seeking substitute employment, loss of earnings, deferred compensation and other employment benefits. In addition, Turner requests compensatory damages for “humiliation, mental anguish, and emotional distress in an amount exceeding one million dollars.” Turner also seeks to recover punitive damages.

During the course of discovery in this case, Imperial Stores and Wardrup requested that Turner attend a mental examination to be performed by an expert hired by defendants. Turner objected to the proposed examination. The attorneys for each side met and conferred, pursuant to Local Rule 26.1(a), but were unable to resolve their differences. They then contacted the court and were asked to submit points and authorities supporting their positions.

[91]*91Imperial Stores and Wardrup filed a “Memorandum of Points and Authorities in Support of Petition to Obtain Court Order for Mental Examination of Plaintiff Pursuant to F.R.C.P. 35.” In them memorandum, Imperial Stores and Wardrup argue that Turner has placed her mental condition “in controversy” within the meaning of Rule 35 since she is “seeking compensation for the emotional distress resulting from the facts and circumstances surrounding her termination at Imperial Stores.” Defendants maintain that an independent medical examination is necessary because without it, defendants will have no way of evaluating Turner’s claim of emotional distress. Turner has filed an “Opposition to Petition to Obtain a Court Order for Mental Examination of Plaintiff,” in which she maintains that a court order for an independent mental examination is unwarranted because she has not received professional psychological care in relation to this action, because the requested examination would violate her right to privacy, and because expert testimony regarding her emotional distress claim would invade the province of the jury.

On March 3, 1995, this court held a hearing at which counsel argued their respective positions. At the hearing, the court granted defendants’ request to file supplemental motion papers. Both parties filed supplemental briefs.

III.

DISCUSSION

A. THE “IN CONTROVERSY” REQUIREMENT OF RULE 35(a)

Rule 35(a) of the Federal Rules of Civil Procedure provides in pertinent part:

Physical and Mental Examinations of
Persons
(a) Order for Examination. When the mental or physical condition ... of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner.... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

In Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), the Supreme Court noted that, unlike the rules pertaining to the permissible scope of other forms of discovery such as interrogatories and production of documents—which require only that the information sought be “relevant to the subject matter involved in the pending action,” and that discovery devices not be used in bad faith so as to cause undue “annoyance, embarrassment, or oppression,”— Rule 35 contains a “restriction” that the matter be “in controversy,” and also requires that the movant affirmatively demonstrate “good cause.” Id. at 117, 85 S.Ct. at 242, citing F.R.C.P. 26(b) and 30(b). The Court went on to state that the “in controversy” and “good. cause” requirements of Rule 35,

... are not met by mere conelusory allegations of the pleadings—nor by mere relevance to the case—but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.

Id. at 118, 85 S.Ct. at 242-43.

The

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Turner v. Imperial Stores, 161 F.R.D. 89, 32 Fed. R. Serv. 3d 1292, 1995 U.S. Dist. LEXIS 4818, 1995 WL 217528 (S.D. Cal. 1995).

161 F.R.D. 89 (Turner v. Imperial Stores) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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