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allowing mental exam to be recorded because Plaintiff asked for and received permission to record the examination on audiotape
Summary of this case from Russo v. APL Marine Services, Ltd.Opinion
No. CV-F-04-6556 REC SMS.
April 18, 2006
On April 17, 2006, the Court heard Plaintiff's Motion for Reconsideration of the Magistrate Judge's Ruling of January 20, 2006, and Plaintiff's Motion for Abstention Pending Resolution of Parallel State Court Action. Upon due consideration of the written and oral arguments of the parties and the record herein, the Court DENIES the motions, as set forth herein.
I. Background
A. Alleged Conduct
The facts as alleged in the Complaint are as follows. Plaintiff Holly Louen contends that Defendant Brian Twedt, an officer with the Fresno Police Department, has engaged in a series of threatening and intimidating acts against her. At some point prior to the alleged threats and intimidation, Plaintiff lodged an internal affairs complaint against Mr. Twedt.
On March 7, 2004, Mr. Twedt followed Plaintiff's vehicle on his motorcycle, eventually passing her on a section of the road that provided for one lane of traffic in that direction. On March 16, 2004, Mr. Twedt, on his motorcycle, approached Plaintiff and her mother, in front of the mother's home, and shined his headlights at them for several minutes while he revved his engine. During both incidents, Mr. Twedt was wearing his Fresno Police Department uniform and riding his department-issued motorcycle.
Plaintiff also alleges that, while off-duty, Mr. Twedt falsely reported that Plaintiff rear-ended his vehicle, verbally assaulted Plaintiff at the gate of her residential community, deliberately refused to proceed through an intersection on a green light to impede Plaintiff and her husband, cut off Plaintiff at the gate of her property, recklessly accelerated in reverse out of his driveway while Plaintiff was present, and prevented Plaintiff from parking at her son's school. Plaintiff alleges that policy of the City of Fresno (the "City") ratified Mr. Twedt's misconduct.
B. The State Court Action
On May 6, 2004, Plaintiff filed a Petition for Injunction Prohibiting Civil Harassment in Fresno County Superior Court. On June 30, 2004, the court found after a trial that Plaintiff had, by clear and convincing evidence, established the following:
1. On February and March of 2003, Mr. Twedt attempted to annoy Plaintiff by interfering with the movement of her vehicle.
2. On March 7, 2004, Mr. Twedt attempted to harass or annoy Plaintiff by following her and passing her in a one lane area on a police motorcycle.
3. On March 16, 2004, Mr. Twedt tried to annoy Plaintiff by shining his police motorcycle lights in the direction of Plaintiff and her mother for several minutes.
4. On March 26, 2004, Mr. Twedt impeded Mr. Louen, Plaintiff's husband, in a nearby intersection by sitting through an entire green signal, then speeding through the yellow signal, which prevented Mr. Louen from proceeding.
5. On April 27, 2004, Mr. Twedt impeded Plaintiff's entry to her neighborhood.
6. On April 30, 2004, Mr. Twedt impeded Plaintiff at an intersection by sitting through an entire green signal and speeding off through the yellow signal, which prevented Plaintiff from entering the intersection on the green signal. Minutes afterward, Mr. Twedt exited his vehicle and walked "quickly and aggressively" toward Plaintiff's vehicle, which was stopped behind him. He then yelled at Plaintiff, using "foul language."
7. Mr. Twedt's acts comprised a "knowing, willful course of conduct" that annoyed and harassed Plaintiff and served no legitimate purpose.
Mot. for Abstention Ex. C ("Reporter's Transcript" 3:3-5:7).
On January 7, 2005, Mr. Twedt appealed the trial court's decision to the Court of Appeal for the Fifth Appellate District.
C. This Action
On November 15, 2004, Plaintiff filed a complaint for damages and declaratory relief in this Court. The Court referred all appropriate pretrial matters in the case to Magistrate Judge Sandra M. Snyder pursuant to 28 U.S.C. section 636(b) and Local Rules 72-302(c)(1) and 72-303. On November 4, 2005, the Magistrate Judge ordered Plaintiff to undergo a mental examination. This order was memorialized in a written order on December 22, 2005. Pursuant to Plaintiffs' request, the Magistrate Judge permitted the proceedings to be tape recorded. Plaintiff did not ask to have counsel present during the examination.
On December 2, 2005, the date for which the mental examination was scheduled, Plaintiff's counsel arrived with Plaintiff at least fifteen minutes after the agreed-upon starting time. Plaintiff's counsel asked Dr. Harold L. Seymour, who was scheduled to conduct the examination, to attempt to complete it anyway. Dr. Seymour discovered that Plaintiff's counsel intended to be present for the examination. Dr. Seymour refused to proceed with Plaintiff's counsel present because doing so would violate standards and practices of clinical interviewing. Plaintiff's counsel refused to allow Plaintiff to undergo the examination without his presence.
On December 20, 2005, the City filed its Motion for Sanctions for Failure to Comply with Court Order, based on Plaintiff's failure to undergo the examination as ordered. Plaintiff opposed the motion, arguing that neither she nor Plaintiff's counsel had violated any court order. At oral argument on January 20, 2006, the Magistrate Judge imposed sanctions in the amount of $2,500, stayed until the conclusion of this case. The Magistrate Judge memorialized its findings in a written order on February 24, 2006.
On January 28, 2006, Plaintiff filed its Objection to Proposed Sanctions Order and Alternative Application for Reconsideration of January 20, 2006 Ruling. The Magistrate Judge deemed this to be a motion for reconsideration by the district judge of a magistrate judge's ruling pursuant to Rule 72(a) of the Federal Rules of Civil Procedure and Local Rule 72-303(c). The City and Mr. Twedt opposed the Motion for Reconsideration.
On March 14, 2006, Plaintiff filed its Motion for Abstention Pending Resolution of Parallel State Court Action based on the doctrines of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976). Both the City and Mr. Twedt also opposed the Motion for Abstention.
II. Motion for Reconsideration
A. Standard of Review
According to Local Rule 72-303, a district judge upholds a magistrate's ruling on a referred matter unless it is "clearly erroneous or contrary to law." See Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A).
The "clearly erroneous" standard applies to a magistrate judge's findings of fact. Concrete Pipe Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623, 113 S. Ct. 2264, 124 L. Ed. 2d 539 (1993). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. at 622.
The "contrary to law" standard, on the other hand, allows independent, plenary review of purely legal determinations by the magistrate judge. FDIC v. Fidelity Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D. Cal. 2000); Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992).
B. Magistrate Judge's Imposition of Sanctions
Plaintiff argues that the Magistrate Judge's decision to impose sanctions was contrary to law because the Magistrate Judge had never issued an order prohibiting Plaintiff's counsel to attend the examination. Plaintiff contends that the Magistrate Judge issued sanctions because Plaintiff's counsel attended the examination, but that no order of the Court or procedural law prohibits his attendance. Defendants contend that Plaintiff was sanctioned for failing to undergo the examination, not simply because counsel attempted to attend. The Court agrees with Defendants.
Rule 37 of the Federal Rules of Civil Procedure authorizes a court to sanction a party who "fails to obey an order to provide or permit discovery, including an order made under . . . Rule 35,. . . ." In her order of December 22, 2005, the Magistrate Judge ordered that Plaintiff submit to the examination on December 2, 2005.
The ordered examination did not take place as scheduled. The reason the examination did not occur is that Plaintiff's counsel insisted on being present during the examination. It appears that the first time Plaintiff's counsel made known to anyone that he intended to attend was when he and his client arrived at the examination location, which was at least fifteen minutes after the scheduled start time. Regardless of the merits of Plaintiff's contention that counsel did not violate an order by showing up at the examination, it cannot be disputed that Plaintiff failed to comply with the Magistrate Judge's order that the Plaintiff undergo the examination that day.
The more apt question appears to be whether Plaintiff was justified in failing to complete the examination according to the Magistrate Judge's order, given her counsel's insistence that he attend. The Magistrate Judge held that Plaintiff's counsel had the "responsibility to inform the Court that you intended to go or to ask if you could go. . . ." Transcript of Oral Argument at 17:3-4, 43:10-17 ("[I]t was your obligation to bring it up."). The Magistrate Judge also took into account that Plaintiff and Plaintiff's counsel arrived at least fifteen minutes late. Transcript of Oral Argument at 17:8-13. The Magistrate Judge based her conclusion on Plaintiff's counsel's extensive experience attending examinations (Transcript of Oral Argument at 43:18-20) and the weight of federal authority against the practice (Transcript of Oral Argument at 14:3-7, 43:11-16). She concluded that counsel should have known that leave of the court was required.
Rule 35 is silent as to who may attend a mental examination.Tirado v. Erosa, 158 F.R.D. 294, 295 (S.D.N.Y. 1994). Though district courts have granted requests that counsel attend examinations, no court has held that a party has an absolute right to have an attorney present. Id.; see Zabkowicz v. W. Bend Co., 585 F. Supp. 635, 636 (E.D. Wis. 1984) (permitting attorney to attend to ameliorate the risk that an "unsupervised examination could easily be transformed into a de facto deposition"). Plaintiff does not cite, nor is the Court aware of, any authority permitting an attorney to attend an examination in the absence of an affirmative court order to that effect.Holland v. United States, 182 F.R.D. 493, 495 (D.S.C. 1998) ("The weight of federal authority, however, favors the exclusion of the plaintiff's attorney from a Rule 35 examination absent a compelling reason."). Plaintiff asked for and received permission to record the examination on audiotape. Plaintiff never requested permission for counsel to attend and the Magistrate Judge did not allow for his attendance.
The Court finds that the Magistrate Judge correctly interpreted the federal law requirement that an attorney who wishes to attend a Rule 35 examination may do so only on the basis of a court's order. Here, the Magistrate Judge ordered that Plaintiff attend an examination and allowed only that the examination be tape recorded.
Given the Magistrate Judge's correct interpretation of the law, her finding that Plaintiff violated this order by failing to attend the examination at the prescribed date and time was not clearly erroneous. The Magistrate Judge found, based on Plaintiff's counsel's experience with this type of cases, that he had a responsibility to inform the Court of his intent to attend. Plaintiff's counsel's eleventh-hour request to attend, followed by his refusal to allow the examination to proceed, violated the Magistrate Judge's order that Plaintiff submit to the examination. Accordingly, sanctions under Rule 37 are appropriate.
C. Scope of Examination
Plaintiff takes issue with the Magistrate Judge's order that Plaintiff appear for an Independent Mental Examination ("IME"). Plaintiff objects on the ground that the original order of December 22, 2005, called only for a "question and answer session," not a full-day examination. Order re: Independent Medical Examination 2:15-16. Plaintiff argues that the scope of the examination was not "before the Court" on January 20, 2006, when the Magistrate Judge ordered the more-thorough IME. The Magistrate Judge, Plaintiff argues, in ordering the IME, levied a discovery sanction that exceeded her powers under Rule 37 and violated Plaintiff's due process rights.
Under Rule 35, a court may order a person to undergo a mental examination when a mental condition is "in controversy" but "only on motion for good cause shown." Fed.R.Civ.P. 35(a). These predicates
are not met by mere conclusory 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.Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964)).
In its motion for sanctions, Plaintiff requested that the Magistrate Judge order Plaintiff to submit to a full-day IME, including a "diagnostic interview with psychosocial history, a [Personality Assessment Inventory] and a memory performance test." Mot. for Sanctions 6:12-14. In its opposition to the motion, Plaintiff argued against the expanded battery of tests. Opp'n to Mot. for Sanctions 6:4-22.
At oral argument on the motion for sanctions, the Magistrate Judge explained her reasons for ordering the expanded IME. The Magistrate Judge reviewed Plaintiff's deposition testimony, finding that Plaintiff's accounts of her level of mental distress varied from answer to answer. Transcript of Oral Argument at 36:8-37:18. The Magistrate Judge noted that at one point in her deposition Plaintiff said the level of stress that she feels today is "heightened" compared to how she felt in 2000. Transcript of Oral Argument at 37:2-7. The Magistrate Judge pointed out that in response to another question, Plaintiff stated that the stress has now lessened. Transcript of Oral Argument at 37:10-13.
The Magistrate Judge also stated that she accepts Dr. Seymour's opinion in his letter of December 5, 2005, regarding the best manner in which to proceed with a future mental examination. Transcript of Oral Argument at 38:21-25; see Weakley Decl. in Supp. of Mot. for Sanctions Ex. E. This letter was not before the Magistrate Judge when she initially ordered the examination. The Magistrate Judge also found that the stress that Plaintiff might face in undergoing the IME would not be excessive. Transcript of Oral Argument at 39:6-10.
At no point during oral argument or in the subsequent written order did the Magistrate Judge indicate that she ordered the IME as a discovery sanction or otherwise to punish Plaintiff. Rather, the Magistrate Judge reviewed intervening circumstances and evidence that had come to light since she ordered the initial examination. The Magistrate Judge properly decided "on motion for good cause shown" that a full-day IME was proper under Rule 35 of the Federal Rules of Civil Procedure. The Court finds that in ordering the IME the Magistrate Judge has not acted in a manner contrary to law and has not made findings that are clearly erroneous. III. Plaintiff's Motion for Abstention/Colorado River Stay
"`The Colorado River doctrine is not technically an abstention doctrine,' Holder v. Holder, 305 F.3d 854, 867 n. 4 (9th Cir. 2002); therefore, a district court's decision declining to exercise federal jurisdiction pursuant to Colorado River is more properly referred to as a stay or dismissal, as the case may be." Smith v. Cent. Ariz. Water Conservation Dist., 418 F.3d 1028, 1032 (9th Cir. 2005).
Plaintiff asks the Court to stay its proceedings pending a resolution of the pending state court appeal. In Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), the Supreme Court enunciated a theory by which federal courts could refuse to exercise their jurisdiction based on "considerations of `wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'"Id. at 817. Federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them." Id. Because of this obligation, a federal court may decline to hear cases under its jurisdiction "`only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.'" Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 14, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (quotingColorado River, 424 U.S. at 813).
A stay under Colorado River is only appropriate where a parallel state proceeding exists that is "substantially similar" to the federal action. Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989). A district court abuses its discretion if it grants a stay under Colorado River and " there is any substantial doubt" as to whether "the parallel state proceeding will end the litigation." Intel Corp. v. Advanced Micro Devices, 12 F.3d 908, 913 (9th Cir. 1993) (quoting Moses H. Cone, 460 U.S. at 428) (Ninth Circuit's emphasis). This rule stems from the Supreme Court's "concern for the prompt and final resolution of all disputed issues." Id. (citing Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 277, 108 S. Ct. 1133, 99 L. Ed. 2d 296 (1988)). In Intel, the Ninth Circuit held that the district court abused its discretion by staying the federal action because the state action would only resolve all of the issues in the federal action if certain contingencies materialized. Id. If, for instance, the state court in that case were to overturn an arbitration award at issue, then the case would necessarily return to federal court. Id.
Here, the state case is substantially different from this case. It is true that central facts are similar: both cases involve Mr. Twedt's alleged harassment of Plaintiff. The parties and the claims in the two cases, however, are different. In the state court action, Plaintiff sought only injunctive relief under California's civil harassment statute, Civil Procedure Code section 527.6. Mot. for Abstention Ex. B at 1. The only Defendant in that action is Mr. Twedt. Id. On the other hand, this case is a federal civil rights action, combined with state-law tort claims, in which Plaintiff requests damages and declaratory relief. Furthermore, Plaintiff is now suing the City, which was not involved in the state action, along with Mr. Twedt. Plaintiff does not contend that the state case will necessarily resolve all of the claims in this case. Rather, she concedes that the federal civil rights claims in this case, as well as the presence of another Defendant, will create a host of unique issues. Plaintiff admits that, if the state court verdict is affirmed, this Court will only have to determine "issues of color of law, municipal liability, and damages" resulting in a trial that "could easily be only a third as lengthy as presently estimated." Mot. for Abstention 5:16-19. Because the state trial court has already decided in Plaintiff's favor, there is a substantial possibility that Plaintiff will prevail, necessitating further proceedings in this Court. Plaintiff has not addressed whether a state court finding in Mr. Twedt's favor would terminate this litigation. In any event, because substantial doubt exists as to whether resolution of the state court suit will resolve all of the issues of the federal suit, stay under Colorado River is inappropriate.
IV. Stay of Declaratory Relief Claims under Brillhart
Plaintiff argues that, because this case contains claims for declaratory relief, a stay is proper under the principle enunciated in Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S. Ct. 1173, 86 L. Ed. 1620 (1942). "[W]hen a party requests declaratory relief in federal court and a suit is pending in state court presenting the same state law issues, there exists a presumption that the entire suit should be heard in state court."Chamberlain v. Allstate Ins. Co., 931 F.2d 1361, 1366-67 (9th Cir. 1991) (citing Brillhart, 316 U.S. at 495). The Ninth Circuit has interpreted the Supreme Court's holding as follows:
The pendency of a state court action, however, does not of itself require a district court to refuse declaratory relief in federal court. In deciding whether to grant such relief in a particular case, the Supreme Court has counseled district courts to ascertain whether the questions in controversy between the parties to the federal suit, and which are not foreclosed under the applicable substantive law, can better be settled in the proceeding pending in the state court. This may entail inquiry into the scope of the pending state court proceeding and the nature of defenses open there. The federal court may have to consider whether the claims of all parties in interest can satisfactorily be adjudicated in that proceeding, whether necessary parties have been joined, whether such parties are amenable to process in that proceeding, etc.Chamberlain v. Allstate Ins. Co., 931 F.2d 1361, 1367 (9th Cir. 1991) (quoting Brillhart, 316 U.S. at 495).
It is readily apparent to the Court that this case is as poor a candidate for a stay under Brillhart as it is for a Colorado River stay. This is so because the parties and substantive law at issue in the state and federal cases are different, and at best, the state case can only partially resolve the claims in the federal case.
In any event, the Brillhart rationale would only support a stay of the declaratory relief claims, not the claims for money damages. Chamberlain, 931 F.2d at 1367. A district court does not abuse its discretion when it retains a declaratory relief cause of action, along with claims for money damages, to avoid piecemeal litigation. Id. at 1367-68. Regardless of whether the Court were to stay on this ground, a large portion of the case — the claims for damages — would remain in federal court. Thus, avoidance of piecemeal litigation counsels against staying the claims for declaratory relief pending the resolution of the state case. The Court declines to stay this case under Brillhart.
ACCORDINGLY:
1. Plaintiff is sanctioned $2,500.00 for failure to comply with a court order.
2. The sanctions are stayed until the conclusion of this case.
3. As soon as is practicable, Plaintiff shall appear for an Independent Mental Examination with Dr. Harold L. Seymour.
4. The parties shall either stipulate to a date and time for the examination or arrange a scheduling conference with Magistrate Judge Snyder to do so.
5. The examination will be audio-recorded.
6. No third party, including counsel, may attend the examination.
7. Plaintiff's Motion for Abstention Pending Resolution of Parallel State Court Action is DENIED.
IT IS SO ORDERED.