Opinion
ORDER DENYING MOTION FOR PHYSICAL EXAMINATION WITHOUT PREJUDICE ECF No. 35
On December 30, 2014, Defendants County of Fresno and Tracy Sink (“Defendants”) filed a motion for a physical examination pursuant to Federal Rule of Civil Procedure 35. (ECF No. 35.) The hearing on the motion was set of January 28, 2015.
Local Rule 251 governs discovery motions filed pursuant to Federal Rules of Civil Procedure 26 through 37 and 45. See Local Rule 251(a). Accordingly, Local Rule 251’s requirements apply to the motion filed by Defendants under Rule 35. Local Rule 251(b) states that discovery motions “shall not be heard unless (1) the parties have conferred and attempted to resolve their differences, and (2) the parties have set forth their differences and the bases therefor in a Joint Statement re Discovery Disagreement.” Local Rule 251(a) states that the Joint Statement re Discovery Disagreement must be filed at least seven (7) days before the scheduled hearing date and the Court may drop the hearing from calendar without prejudice if it is not timely filed. To date, no Joint Statement re Discovery Disagreement has been filed by the parties.
Defendants’ motion makes no mention of any efforts to confer with Plaintiff and attempt to resolve any differences regarding a physical examination pursuant to Federal Rule of Civil Procedure 35. Accordingly, it is unclear what issues, if any, are in dispute between the parties regarding such an examination. In the absence of the required joint statement, the time, place, manner, conditions, and scope of the examination strikes the Court as issues that can be easily resolved informally by the parties without Court intervention.
The Court is cognizant of the fact that Rule 35, unlike the other discovery mechanisms, requires the party seeking such discovery to first obtain the Court’s permission. Local Rule 251’s requirements inform the Court as to whether there are disputed issues regarding Defendants’ Rule 35 request. In this case, it is unclear. Plaintiff has not filed an opposition to Defendants’ motion, but that could be because he does not oppose the motion or it could be because, under Local Rule 251, no opposition is required and the onus is on the movant to meet and confer beforehand and for the parties to jointly prepare a Joint Statement re Discovery Disagreement.
Accordingly, it is HEREBY ORDERED that Defendants’ motion for a physical examination is DENIED without prejudice. The hearing set for January 28, 2015 is taken off calendar and the parties shall not appear at that time.
IT IS SO ORDERED.