United States District Court, D. South Dakota, Southern Division
KERRI LUREEN, as Guardian Ad Litem of S.L., a Minor, Plaintiff,
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,
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
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.
Background and Parties
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.
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.
The Facts Pertaining to the IME
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.
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.
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
Provisions of 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."