Hoy v. Hernandez

1|| JONATHAN D. BLuM, Esa.

Nevada Bar No. 09515 2\| WILEY PETERSEN 1050 Indigo Dr., Suite 200B 3}| Las Vegas, Nevada 89145 Telephone No. (702) 910-3329 4|| Facsimile: (702) 553-3467 [email protected] Attorney for Defendant/Cross-Defendant, 6|| Lisa Brochu FELICIA GALATI, Esq.

8 || Nevada Bar No. 7341 OLSON CANNON GORMLEY & 9|| STOBERSKI 9950 West Cheyenne Avenue 10|| Las Vegas, Nevada 89129 [email protected] 11}; Telephone: 702-384-4012 Facsimile: 702-383-0701 Attorneys for Defendants, 13|| County of Clark, Kim Kallas, Lisa Ruiz-Lee and Paula Hammack 4 UNITED STATES DISTRICT COURT IS DISTRICT OF NEVADA SUSAN HOY, as Guardian Ad Litem for J.M. CASENO.: 2:20-cv-00103-GMN-VCF and IM., minors, 18 Plaintiffs, 19 VS, ORDER GRANTING DEFENDANTS’ MOTION TO COMPEL PLAINTIFF’S 20) ANDREA HERNANDEZ; WALDO FRCP 35 EXAMINATION IN HERNANDEZ; LISA BROCHU; KIM HENDERSON, NEVADA 21], KALLAS; LISA RUIZ-LEE; PAULA HAMMACK; DOE Individuals I-X; ROE 22|| CLARK COUNTY DEPARTMENT OF FAMILY SERVICES EMPLOYEES XI-XX, 23|| individually and in their official capacities; COUNTY OF CLARK, a political subdivision of 24|| the State of Nevada; and ZOE CORPORATIONS XXI-XXX, Defendants, LISA BROCHU, an individual, Cross-Claimant, DMWEST #40117706 v3 1 VS, 2}) ANDREA HERNANDEZ, an individual; WALDO HERNANDEZ, an individual; MOES 3]| 1-10, inclusive; and MOE CORPORATIONS 1- 10, inclusive, 4 Cross-Defendants, 5) ANDREA HERNANDEZ, an individual; WALDO HERNANDEZ, an individual, Cross-Claimants, VS, LISA BROCHU, an individual, Cross-Defendant, Defendant LISA BROCHU (“Brochu”), along with COUNTY OF CLARK, KIM KALLAS, LISA RUIZ-LEE AND PAULA HAMMACK (collectively, “Defendants”) filed their Motion to Compel Plaintiff J.M.’s Physical Examination pursuant to FRCP 35 to be conducted in Henderson, Nevada on January 19, 2021 [ECF No. 47] (“Motion to Compel”). Plaintiffs filed their response to the Motion to Compel on February 2, 2021 [ECF No. 47], and Defendants filed their reply in support on February 9, 2021 [ECF No. 49].

A hearing was held before this Court regarding the Motion to Compel on March 12, 2021 by video conference, with counsel for all parties attending. The Court hereby orders as follows: IT IS HEREBY ORDERED that the Motion to Compel is hereby GRANTED.

The Court finds that an FRCP 35 examination of JM by a medical doctor specializing in plastic surgery is appropriate given JM’s damage claims and the expert report disclosed by □□□□□□□□□□ expert Lloyd Krieger, MD. With regard to the location of the FRCP 35 examination, the Court finds that, while Plaintiffs currently reside in California, the general rule in the District of Nevada is, “that plaintiffs should submit to the examination in the forum in which they chose to bring suit.” Mansel v. Celebrity Coaches of Am., Inc., No. 2:13-cv-01497-JAD-NJK, 2013 U.S. Dist. LEXIS 178805, at *3-9 (D.

Nev. Dec. 20, 2013). While this rule can be overcome, the burden is on the plaintiff to show that he cannot do so. Jd. “A Plaintiff must ‘show that traveling to the examination poses 21} undue burden or hardship.”” Cameron v. Gutierrez, No. 19-841 GJF/KK, 2020 U.S. Dist. LEXIS 3] 162868, at *7-8 (D.N.M. Sep. 4, 2020) (emphasis added). Plaintiff raised issues regarding 4} conflicts with the minor plaintiffs’ parents work, as well as concerns regarding COVID-19.

5|| However, “That burden is not met through general assertions of an inability to travel, but rather 6|| requires specific evidence demonstrating an inability to travel.” Mansel at 3-9.

7 Plaintiff has not met his burden regarding demonstrating undue burden or hardship, and |) therefore the general rule shall be enforced.

9 \\\ 10 \\\ 11 \\\ 12 \\\ 13 \\\ 14 \\\ 15 \\\ 16 \\\ 17 \\\ 18 \\\ 19 \\\ 20 \\\ 21 \\\ 22 \\\ 23{| —\\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 IT IS FURTHER ORDERED that Plaintiff JM shall present for a FRCP 35 examination with 2|| Nittin Engineer, MD at his office in Henderson, Nevada on April 23, 2020 at 3:00 PM.

4 IT IS SO ORDERED: UNITED‘SP% (ES MAGISTRATE JUDGE 7 3-24-2021 9 DATED: 10 Respectfully submitted by: 1] D DATED this day of March, 2021.

14 Ww it EY PETERSED — J@RATHAN D. BLUM, ESQ.

16 i¢vada Bar No. 09515 1050 Indigo Dr., Suite 200B 7 Las Vegas, Nevada 89145 felephone No. (702) 910-3329 [email protected] 19 Attorney for Defendant/Cross-Defendant, 20 Lisa Brochu 1 FELICIA GALATI, Eso.

Nevada Bar No. 7341 OLSON CANNON GORMLEY & STOBERSKI 3 9950 West Cheyenne Avenue Las Vegas, Nevada 89129 24 [email protected] Telephone: 702-384-4012 5 Facsimile: 702-383-0701 6 Attorneys for Defendants, County of Clark, Kim Kallas, 27 Lisa Ruiz-Lee and Paula Hammack 1} Approved as to Form and Content: 2|| DATED this _23 day of March, 2021.

4 /s/ Cara Xidis Cara Xidis, Esq. >| Nevada Bar No. 11743 H&P Law 8950 W. Tropicana Ave, Ste 1 7\| Las Vegas, NV 89147 Attorneys for the Plaintiffs