The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION TO COMPEL PLAINTIFF JAMIA SANDERS TO SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION
Before the Court is Defendants' motion to compel Plaintiff Jamia Sanders to submit to an independent mental examination pursuant to Fed.R.Civ.P. 35. (Doc. No. 34). The motion was filed on May 31, 2012. Plaintiff responded in opposition on June 1, 2012. (Doc. No. 36). At the outset, Plaintiff asserts that Defendants filed their motion in violation of this Court's chambers rules regarding discovery disputes. (Id. at 2-3). Specifically, Plaintiff claims that the motion was filed without the required meet and confer session and that Plaintiff was given an insufficient period of time to participate in this Court's required joint motion for determination of discovery disputes. See Local Rule 26.1 and Chambers Rules of Magistrate Judge Dembin, Section V(a) and (c).
Under normal circumstances, the Court would deny the motion without prejudice and require counsel to meet and confer. But, with the discovery cut-off date of June 27 looming in this case, the Court will proceed to the merits. Counsel are warned, however, that the sort of gamesmanship lurking behind this motion will not be tolerated further.
Plaintiffs in this case consist of James and Jamia Sanders, their daughter, Stephanie Sanders, three minor children of Stephanie Sanders, and Jordan Williams, the father of the three minor children. (Doc. No. 1). James and Jamia Sanders reside in an apartment complex owned and managed by Defendants. The causes of action asserted allege violations of federal and state fair housing laws, state civil rights laws, negligence and unfair business practices. (Id.) In summary, Defendants are alleged to have actively discouraged the minor grandchildren of James and Jamia Sanders from visiting them in violation of law. Plaintiffs seek injunctive relief and compensatory and punitive damages. For purposes of this motion, one allegation in the Complaint deserves special note. Plaintiffs allege:
By reason of defendants' unlawful acts and practices, plaintiffs have suffered . . . severe emotional distress and physical injury, humiliation and mental anguish, fear, stress, including bodily injury such as stomach aches, headaches, sleep loss, feelings of depression, discouragement, anger, and nervousness; and reliving the experience; . . . . (Id. at ¶26)
Defendants seek to compel Plaintiff Jamia Sanders to submit to an independent mental examination asserting that she has put her mental condition in controversy. In support, Defendants refer to §26 of the Complaint, excerpted above, and rely on certain answers to Interrogatories wherein Plaintiff Jamia Sanders claims to have sought medical treatment for sleeplessness, nightmares, anxiety, panic attacks, hyper-vigilance, depression, anger, paranoia and discomfort being outside of her home based upon the incidents forming the basis of the Complaint. She also stated that she has been placed back on certain medications that she had not had to take in years. (See Doc. No. 34-2, Exh. C).
In response, Plaintiff asserts that she has not brought a cause of action for intentional infliction of emotional distress. Plaintiff concedes, however, that her current mental health is "in issue" but challenges the scope of the requested examination. (Doc. No. 36 at 6). Plaintiff having conceded that her mental condition is in controversy, the Court will only consider whether good cause has been shown for the scope of the examination requested by Defendants.
Rule 35(a) provides, in relevant part: When the mental or physical condition .of a party. is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner .. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
Under FRCP 35, a party is entitled to conduct a mental examination of another party if the movant demonstrates that: (1) the plaintiff has placed her mental condition in controversy; and (2) good cause exists for the examination. See, e.g., Schlagenhauf v. Holder, 279 U.S. 104, 116-117 (1964); Tan v. City and County of San Francisco, et al., 2009 U.S. Dist. LEXIS 21639 at *2-*3 (N.D.Cal. 2009); Turner v. Imperial Stores, et al., 161 F.R.D. 89, 92 (S.D.Cal. 1995). Although there is a constitutional right to privacy, that right is "conditional rather than absolute" and "is waived when a plaintiff raised before the court issues concerning her mental and emotional condition and seeks damages for mental and emotional injuries." Enwere v. Terman Assoc., LP, et al., 2008 U.S. Dist. LEXIS 101901 at*5 (N.D.Cal. 2008)(citing Caesar v. Mountanos, 542 F.2d 1064, 1066-70 (9th Cir. 1976). Rule 35 is to be "construed liberally to allow the examination." Tan, 2009 U.S. Dist. LEXIS 21639 at *5.
The initial inquiry typically is whether Plaintiff has placed her mental condition sufficiently in controversy. A plaintiff puts her mental state in controversy if one or more of the following aggravating factors are present: (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 unusually severe emotional distress; or (5) plaintiff concedes that her mental condition is "in controversy" within the meaning of Rule 35(a). See, e.g., Tan, 2009 U.S.Dist.LEXIS at *4; Turner, 161 F.R.D. at 98. Although mental state may not be "in controversy" where only "garden variety" emotional distress damages are claimed, presence of one of these factors is sufficient to place mental state in controversy. See Ayat v. Societe Air France, et al., 2007 U.S.Dist.LEXIS 31285 (N.D.Cal 2007). As Plaintiff has conceded that her mental condition is in controversy, the initial inquiry is satisfied.
The second and final inquiry is whether there is good cause to order the examination. A factor used by the courts to assess "good cause" in this context is whether a party has alleged some type of ongoing mental injury. See, e.g., Enwere, 2008 U.S. Dist. LEXIS 101901 at *8 (citing Bridges v. Eastman Kodak Co., 850 F.Supp. 216, 221-22 (S.D.N.Y. 1994); Duncan v. Upjohn, 155 F.R.D. 23, 25 (D.Conn. 1994); (Hodges v. Keane, 145 F.R.D. 332, 334 (S.D.N.Y. 1993)(ordering mental examination where Plaintiff demonstrated ongoing mental injury by alleging that her mental health injuries require "continuing medical treatment"); Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D.Cal. 1995). If a Plaintiff alleges ongoing mental injury or the likelihood of future mental distress, there is ...