Opinion
Civil Action No. 05-cv-01655-REB-KLM.
December 3, 2007
ORDER
This matter is before the Court pursuant to Defendants' Motion for Medical Examination of Plaintiff Pursuant to F.R.C.P. 35 [Docket No. 62, Filed September 9, 2007] (the "motion"). Plaintiffs filed a response on September 25, 2007 [Docket No. 63], and Defendant filed a reply on October 10, 2007 [Docket No. 64]. The motion was referred to the Magistrate Judge on November 28, 2007.
IT IS HEREBY ORDERED that the motion is DENIED without prejudice. Pursuant to Fed.R.Civ.P. 35(a)(2)(B) (amended effective December 1, 2007), an order requiring a party to undergo a physical or mental examination by a suitably licensed or certified examiner "must specify the time, place, manner,conditions, and scope of the examination, as well as the person or persons who shall perform it" (emphasis added). Defendant's pleadings and notice fail to provide information regarding the conditions and scope of the proposed examination of Plaintiff Cecelia Morgan by Dr. Roth. As a result, the Court is not adequately informed of the conditions and scope of the examination sought, and must decline to enter an order specifying them. "Rule 35 requires the court to specify in its order the scope and conditions of the examination, and in this way the court may pass on the diagnostic procedures to be used." 8A Charles Alan Wright et al., Federal Practice and Procedure § 2235, at 495-96 (2d ed. 1994); see Schlagenhauf v. Holder, 379 U.S. 104, 121 n. 16 (1964) (holding that court's order requiring physical examination was deficient in that it failed to specify the types and scope of testing to be utilized and merely ordered examinations "in very broad, general areas.")
IT IS FURTHER ORDERED that Defendant's request for the costs and reasonable attorney fees associated with the filing of the motion are DENIED.