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Lureen v. Doctor's Associates, Inc.

United States District Court, D. South Dakota, Southern Division

October 10, 2017

KERRI LUREEN, as Guardian Ad Litem of S.L., a Minor, Plaintiff,
v.
DOCTOR'S ASSOCIATES, INC.; SUBWAY IP, INC.; FRANCHISE WORLD HEADQUARTERS, LLC.; METRO INITIATIVES, LLC, all d/b/a “Subway;” CHRISTOPHER JOHN HOLL, in his personal capacity and as owner; and JOHN CLARK, in his personal capacity and as owner; Defendants and Third-Party Plaintiffs,
v.
KILEY RAMSTORF, Third-Party Defendant.

          ORDER GRANTING DEFENDANTS' MOTION TO COMPEL IME AND RECOMMENDING GRANTING OF AN EXTENSION OF THE SCHEDULING ORDER DOCKET NO. 81

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         This matter is before the court on the amended complaint of plaintiff Kerri Lureen, guardian ad litem of the minor S.L., alleging sex discrimination, hostile work environment, constructive discharge, negligence, and assault and battery as regards S.L. See Docket No. 56. Jurisdiction is founded on the presence of a federal question, diversity of citizenship of the parties, and the court's supplemental jurisdiction. See 28 U.S.C. §§ 1331, 1332, and 1367. Defendants have filed a motion to compel S.L. to undergo an independent medical examination (IME). See Docket No. 81. Plaintiff agrees that S.L. will submit to the IME, but seeks to have a third party present with S.L. during the IME. See Docket No. 100. Plaintiff also seeks to require defendants to pay S.L. for her travel expenses and lost wages. Id. The Honorable Lawrence L. Piersol, United States District Court Judge, referred plaintiff's motion to this magistrate judge for decision pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 88.

         FACTS

         A. Background and Parties

         Plaintiff is the mother and guardian of S.L., a minor who is currently 17 ½ years old. S.L. worked for a Subway restaurant on East Arrow Avenue NE in Watertown, South Dakota, for approximately 9 months, from August, 2015, to March 16, 2016. S.L. was 15 years old at the time she went to work for Subway. S.L.'s claims center around sexual contact perpetrated by her direct manager at Subway, Kiley Ramstorf, a man 14 years older than she. The Watertown Subway was owned at the time by Metro Initiatives, LLC ("Metro"), a business entity owned by defendants Christopher John Holl and John Clark, together with Ramstorf.

         Plaintiff alleges that defendants Doctor's Associates, Inc. ("DIA"); Franchise World Headquarters, LLC ("FWH"); and Subway IP (plaintiff collectively characterizes these parties as "Subway"), had substantial control over day-to-day activities of its franchisees, specifically, Metro. Plaintiff asserts that the Subway defendants and Metro should be considered a single employer, joint employers, or as principal and agent.

         B. The Facts Pertaining to the IME

         Plaintiff has placed S.L.'s mental condition at issue, asserting damages for mental and emotional distress. Plaintiff has had S.L. examined by her own mental health expert, Dr. Sarah Flynn, who has produced a report.

         Defendants seek to have S.L. undergo an IME with an expert of their own choosing, Dr. Avram Mack. The location of the IME will be in Sioux Falls, South Dakota. Defendants propose the exam will take approximately five hours, from 9:00 a.m. to 3:00 p.m., with regular breaks and a break for lunch. No standardized testing will be administered during the IME. Furthermore, defendants have agreed to video and audio record the IME.

         Plaintiff seeks to have her expert, Dr. Flynn, present during the IME or, in the alternative, her lawyer. Additionally, plaintiff seeks to have defendants pay for her travel from her home in Watertown, South Dakota, to the site of the IME in Sioux Falls.

         DISCUSSION

         A. Provisions of Rule 35

         Rule 35 of the Federal Rules of Civil Procedure allows the court to order a party whose physical or mental condition is in controversy to submit to a mental examination by a licensed or certified examiner. See Fed.R.Civ.P. 35(a). There must be good cause for the order, notice to the person to be examined must be given, and the court must "specify the time, place, manner, conditions, and scope of the examination as well as the person . . . who will perform it." ...


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