Six v. City of Seattle

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 SAMANTHA L. SIX, CASE NO. 2:21-cv-00658-RSL-JRC 11 Plaintiff, ORDER GRANTING MOTION TO 12 v. COMPEL AND EXTEND PRETRIAL SCHEDULE 13 CITY OF SEATTLE, et al., 14 Defendants.

16 This matter is before the Court on referral from the district court and on defendants’ motion to compel and extend the pretrial schedule. See Dkts. 52, 55.

18 Plaintiff initiated this action alleging that defendants violated several federal and state constitutional rights that, among other things, harmed her mental health. In support of those allegations, plaintiff disclosed an expert report by a neuropsychologist, who examined plaintiff in March 2022 and opined that plaintiff suffered significant psychological and emotional injuries.

22 Defendants sought to take plaintiff’s deposition and have their own expert conduct an independent mental examination (IME) on plaintiff. However, after several attempts to schedule the IME and deposition with plaintiff’s former counsel, and after attempting to confer with plaintiff directly after her counsel withdrew, defendants have been unable to conduct an IME or depose plaintiff. Thus, defendants move the Court for an order compelling plaintiff to attend an in-person IME and deposition.

5 After reviewing the motion and relevant record, and given plaintiff’s lack of response, the Court grants defendants’ motion. Plaintiff has placed her mental condition in controversy and good cause exists to allow defendants to have their expert examine plaintiff. Further, given plaintiff’s refusal to cooperate with written discovery and the various allegations of constitutional violations in her amended complaint, the Court finds that a deposition is appropriate and orders plaintiff to attend an in-person deposition.

11 BACKGROUND 12 In May 2021, plaintiff initiated this action against the City of Seattle, King County, and police officers Scott Luckie and Michael Eastman, alleging that they violated her federal and state constitutional rights when the police officers arrested her during a protest in 2020. See generally Dkt. 3. Plaintiff alleges nine causes of action that include several 42 U.S.C. § 1982 claims, violations of the Washington Constitution, and negligence. See id. at 13–25. Plaintiff alleges that she “suffered and will continue to suffer pain and suffering, mental anguish, emotional distress, loss of quality of life, loss of enjoyment of life, temporary and/or partial impairment and/or disability, emotional disfigurement and/or scarring, loss of income, economic loss, medical expenses, and other expenses.” Id. Plaintiff seeks monetary damages. See id. at 26.

21 The parties have exchanged their initial and expert disclosures. See Dkt. 53 at 1. On April 4, 2022, plaintiff produced expert report from a neuropsychologist. See id. at 2. The parties were in the process of resolving certain discovery issues when, on July 21, 2022, plaintiff’s attorney moved to withdraw as plaintiff’s attorney because of a breakdown in communication with plaintiff that “ma[de] representation impossible.” Dkt. 44 at 2. The Court granted the withdrawal and informed plaintiff that she shall proceed pro se unless she procures new counsel. See Dkt. 50 at 2.

5 On August 18, 2022, defendants’ counsel, Ms. Widen, emailed plaintiff to schedule a deposition and IME. See Dkt. 53-3 at 2. Ms. Widen offered to work with plaintiff in scheduling the deposition and IME to avoid having plaintiff make multiple trips. See id. Plaintiff responded by stating that she cannot travel due to health concerns and an abusive ex-husband who lives in Seattle. See Dkt. 53-4 at 3. Plaintiff also indicated that defendants had all the information they needed. See id. The next day, defendant King County’s counsel emailed plaintiff regarding outstanding written discovery responses. See Dkt. 53-5 at 2. Plaintiff responded that she had given her response to providing further information on this case to Ms. Widen and directed King County’s counsel to speak with Ms. Widen. See id. 14 On September 1, 2022, defendants City of Seattle, Michael Eastman, and Scott Luckie, filed the instant motion to compel. See Dkt. 52. Defendant King County joined the motion the next day. See Dkt. 55. Defendants move the Court to compel plaintiff to submit to a deposition and to an IME. See Dkt. 52 at 5. Defendants also move the Court to extend certain pretrial deadlines. See id. at 9. Plaintiff did not file a response to the motion.

19 DISCUSSION 20 I. Motions to Compel 21 A. Meet and Confer Requirement 22 Pursuant to Local Civil Rule 37(a)(1), motions to compel discovery “must include a certification, in the motion or in a declaration or affidavit, that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to resolve the dispute without court action.”

3 Here, defendants include a “certification of meet and confer efforts” in their motion. Dkt.

4 52 at 2–4. Defendants state that they made “several attempts to schedule [p]laintiff’s deposition and IME, including by letter, emails, and phone conferences with [plaintiff’s former] counsel” that were ultimately unsuccessful. Id. at 3. After plaintiff’s counsel withdrew from representation, defendants attempted to confer with plaintiff directly via email and offered to work with her to schedule her deposition and IME. See Dkt. 53-3 at 2. However, plaintiff indicated that defendants had all the information they needed and that she would not cooperate.

10 See id.; see also Dkt. 53-5 at 2 (plaintiff informed defendant King County that she had given her response to providing further information on this case to Ms. Widen and directed King County’s counsel to speak with Ms. Widen).

13 The Court concludes that defendants attempted to resolve the dispute without the Court’s intervention and satisfied the meet and confer requirements.

15 B. Independent Mental Examination 16 Defendants first move the Court to compel plaintiff to submit to an in-person IME with Dr. Jennifer Piel, M.D., J.D. See Dkt. 52. The Court “may order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitable licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). The Court’s order “may be made only on motion for good cause and on notice to all parties and the person to be examined.” Fed. R. Civ. P. 35(a)(2)(A). Further, 22 courts will order plaintiffs to undergo mental examinations where the cases involve, in addition to a claim of emotional distress, one or more of the following: 23 1) a cause of action for intentional or negligent infliction of emotional distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of 1 unusually severe emotional distress; 4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or 5) plaintiff’s concession that his or 2 her mental condition is “in controversy” within the meaning of Rule 35(a).

3 Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995).

4 Here, plaintiff alleges in all nine causes of action that she “suffered and will continue to suffer pain and suffering, mental anguish, emotional distress, loss of quality of life, loss of enjoyment of life, temporary and/or partial impairment and/or disability, emotional disfigurement and/or scarring, loss of income, economic loss, medical expenses, and other expenses.” Dkt. 3 at 13–26. Plaintiff has also disclosed an expert report by a neuropsychologist, who examined plaintiff in March 2022 and opined that she suffered significant psychological and emotional injuries. See Dkts. 52 at 5, 53 at 1–2. Based on these factors, the Court finds that plaintiff’s mental condition is in controversy and allowing a Rule 35 exam would level the playing field in this matter. See Tang v. City of Seattle, No. C19-2055-RSL, 2020 WL 7714410, at *2 (W.D. Wash. Dec. 29, 2020); Perona v. Time Warner Cable Inc., No. ED CV 14-2501- MWF (SPx), 2016 WL 9051867, at *5 (C.D. Cal. May 5, 2016). Accordingly, defendants’ motion to compel an IME is granted.

16 C. Deposition 17 Defendants also move the Court for an order compelling plaintiff’s deposition. See Dkt.

18 52 at 8. Federal Rule of Civil Procedure 30 permits the deposition of a party. Fed. R. Civ. P. 30(a)(1). When evaluating a motion to compel a deposition, courts weigh the importance of the issues at stake in the action, the parties’ relative access to relevant information, the parties’ resources, the importance of the deposition testimony in resolving the issues, and whether the discovery sought from the deposition is relevant and proportional to the needs of the case. See McVeigh v. Climate Changers Inc., Case No. C16-5174-RJB, 2017 WL 615428, at *4 (W.D.

1 Wash. Feb. 15, 2017). Courts also consider whether the benefit of compelling participation in a deposition outweighs the burden and expense. Id. Even though she is proceeding pro se, plaintiff is still required to comply with the Federal Rules of Civil Procedure. See Ghazalia v. Moran, 46 4 F.3d 52, 54 (9th Cir. 1995).

5 Here, although discovery is ongoing and plaintiff has not been deposed in this matter, she has indicated that she will not be providing additional information in this case and has chosen not to cooperate with defendants’ efforts to take her deposition. See Dkt. 52 at 8. In emails to defendants’ counsel, plaintiff states that she has provided enough information to defendants and declined to cooperate with scheduling an IME and deposition, or provide answers to written discovery requests. See Dkt. 53-4 at 3, 53-5 at 2.

11 Given plaintiff’s refusal to cooperate with written discovery and the various allegations of constitutional violations in her amended complaint, the Court finds that a deposition is appropriate. Plaintiff brought this lawsuit and by doing so, she has put her claims at issue. The people and entities she sued should be able to discover the facts behind her claims so that they may properly mount a defense. Plaintiff cannot simply refuse to cooperate during the discovery process once she feels like defendants have enough information. Accordingly, defendants’ motion to compel plaintiff’s deposition is granted.

18 D. Location of Deposition and Mental Examination 19 Defendants ask the Court to compel plaintiff to submit to an in-person IME and deposition in Washington. See Dkt. 52 at 5–9.

21 “[C]ourts have developed a ‘general rule’ that plaintiffs should submit to [a medical] examination in the forum in which they chose to bring suit.” Mansel v. Celebrity Coaches of America, Inc., No. 2:13-CV-01497-JAD, 2013, WL 6844720, at *1 (D. Nev. Dec. 20, 2013); see also Hernandez v. 57 Degrees N., LLC, No. C06-1098L, 2007 WL 1866891, at *1 (W.D. Wash. June 27, 2007) (stating that “an IME usually should be conducted in the forum plaintiff has selected for litigation”). One of the reasons for the rule is to make a medical expert’s appearance at trial more likely. See Mansel, 2013, WL 6844720, at *1. However, there is an exception to the general rule if a plaintiff shows that she cannot travel due to a medical condition. See Prado v. County of Siskiyou, 2009 WL 1657537, *2 (E.D. Cal. June 12, 2009). A plaintiff cannot rely on general claims of inability to travel and carries the burden to provide specific evidence to support her claims. See Mansel, 2013, WL 6844720, at *2.

9 Here, defendants’ expert, Dr. Jennifer Piel, M.D., J.D., is licensed in Washington and her license requires that her patients be physically present in Washington—even if the examination is conducted over video-based technology. See Dkts. 52 at 7, 54 at 2. Plaintiff currently resides in Colorado and, in an email to defendants’ counsel, stated that COVID-19, Monkeypox, and Polio make traveling potentially deadly for her because of her autoimmune disorder. See Dkt. 53-4 at 3. She also stated that returning to Washington is too dangerous because her abusive ex-husband lives in Seattle. See id. However, because plaintiff did not respond to defendants’ motion, she has not provided the specific evidence that is required to meet her burden. See Mansel, 2013, WL 6844720, at *2. Notably, plaintiff has not provided a declaration to establish the veracity of those statements and the Court cannot rely on claims of inability to travel made in email correspondence. Further, defendants have offered to accommodate plaintiff’s concerns by having the examination conducted near the airport or outside Seattle city limits and to maintain the date and time of the examination confidential. See Dkt. 52 at 7.

22 Accordingly, the Court orders that plaintiff’s mental examination be conducted in person in Washington state at a time and place to be selected by defendants. Plaintiff is free to seek a protective order if she can provide evidence of her inability to travel. Regarding the deposition, since plaintiff will be required to travel to Washington to attend her mental examination, it makes sense to have plaintiff appear in person for her deposition at the same time. However, here too, plaintiff may move to have the deposition be taken by remote means pursuant to Fed. R. Civ. P. 30(b)(4) if she can make the proper showing.

6 II. Motion to Extend Pretrial Deadlines 7 Due to plaintiff’s lack of cooperation, defendants ask the Court to extend certain discovery deadlines. See DKt. 52 at 9. The Court finds good cause and grants the request. The scheduling order in this matter is amended as follows: Event Prior Deadline Amended Deadline Defendants’ expert disclosures under Fed. R. September 23, 2022 November 18, 2022 Civ. P. 26(a)(2) Rebuttal expert disclosures October 5, 2022 December 7, 2022 Discovery completed by January 3, 2023 January 31, 2023 Dispositive motions filed by January 30, 2023 February 28, 2023 The parties shall comply with the Court’s pretrial scheduling order except as amended herein. The Court recognizes that defendants requested these dates in September, and they may require further extension depending on when the IME and deposition are scheduled.

III. Other Issues Defendant King County filed a declaration from its counsel, Ann Summers, informing the Court that Ms. Summers received a package in the mail, postmarked from Denver, Colorado, that contained a copy of her previous declaration, and what appears to be owl pellets. See Dkt. 58.

Defendant concludes that plaintiff sent the package. See Dkt. 57 at 2. However, defendant does not move for sanctions and only asks the Court to consider plaintiff’s conduct in deciding the motions to compel. See id. 3 Federal courts have an inherent authority to sanction litigants for misconduct. See Chambers v. NASCO, Inc., 501 U.S. 32, 43–46 (1991); see also Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1035 (9th Cir. 2012). This Court may choose any appropriate sanction “that will punish the past misconduct and prevent future misconduct.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1065 n.8 (9th Cir. 2007). That includes the power to dismiss an action “when a party has . . . engaged in conduct utterly inconsistent with the orderly administration of justice.” Anheuser–Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1991). Since plaintiff has not responded to the allegations and defendant has not requested sanctions at this time, the Court will take no further action, except to say that the alleged conduct, if proven, would be grounds for sanctions.

13 CONCLUSION 14 Defendants’ motion to compel an IME and deposition (Dkt. 52) is granted. Plaintiff shall submit to a mental examination to be conducted by Dr. Jennifer Piel, M.D., J.D., in Washington and on a date mutually agreed upon by Dr. Piel and all parties.1 The examination may include an in-person interview lasting no more than 4 hours, wherein both Dr. Piel and plaintiff would be required to wear masks and follow standard COVID protocol, as well as the completion of some brief screening tools that plaintiff can do in advance of the interview or at the beginning of the interview, if needed, and the completion of some psychological testing, which Dr. Piel will 23 1 Fed. R. Civ. P. 35(a)(2)(B) states that the Court’s order must specify the time and place of the examination. However, given potential safety concerns that may be present in this matter, the Court declines to include them in its order.

1 arrange to be sent to plaintiff directly from the test administrator, and she is to complete online via secure link in a timely manner.

3 Plaintiff shall also appear for an in-person videotaped deposition in Washington, on a date mutually agreed upon by all parties. The Court directs the Clerk to send a copy of this order to plaintiff.

6 Dated this 19th day of October, 2022.

A J. Richard Creatura Chief United States Magistrate Judge