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Jane Doe v. Blackburn College

March 28, 2011

JANE DOE, PLAINTIFF,
v.
BLACKBURN COLLEGE, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

3:06-cv-03205-MPM -BGC # 100 Page 1 of 8

Monday, 28 March, 2011 10:57:50 AM

Clerk, U.S. District Court, ILCD

OPINION

This matter comes before the Court on Defendant Blackburn College's Motion to Compel Rule 35 Examination. See d/e 82 (the "Motion"). For the reasons set forth below, the Motion is ALLOWED.

BACKGROUND

Plaintiff has filed a Complaint (d/e 1) which, among other things, alleges a claim under Title IX of the Education Act of 1972, 20 U.S.C. § 168(a), et seq. ("Title IX"). Because she seeks damages for mental harm, Plaintiff's mental condition is in controversy and she is subject to examination pursuant to Federal Rule of Civil Procedure 35(a).

During a January 6, 2011, status conference, Chief U.S. District Judge Michael P. McCuskey specifically told Plaintiff to appear for a mental examination and cooperate fully. See Minute Entry dated January 6, 2011. Judge McCuskey warned Plaintiff that her case would be dismissed if she did not comply.

Following the status conference, the parties agreed to complete the Rule 35(a) examination by March 1, 2011. See Proposed Stipulated Third Amended Case Management Order (d/e 73) at 2. The parties subsequently agreed that the Rule 35 examination would take place on February 3 and 4, 2011. See Defendant's Motion to Compel at Exhibit F (discussing dates).

The parties set the examination for a limited duration (1 hour and 30 minutes per day). The examination was to be conducted by psychologist Ann Duncan-Hively, Ph.D. and was to occur at her office. Other than these things, there were no restrictions on the Rule 35 examination.

Defense counsel provided an address for Dr. Duncan-Hively's office. Plaintiff arrived at that address on February 3, 2011, the first day of the Rule 35 examination. Upon doing so, Plaintiff found that Dr. Duncan-Hively had moved to a new office. Plaintiff then drove 5 miles to the office and the Rule 35 examination began.

One and a half hours after the February 3rd testing began, Dr. Duncan-Hively asked Plaintiff to complete a Minnesota Multiphasic Personality Inventory ("MMPI") and a Symptom Checklist. Since the allotted hour and half testing period had expired, Plaintiff left Dr. Duncan-Hively's office without completing the MMPI or the Symptom Checklist. Plaintiff did this on the advice of her counsel. When Plaintiff left Dr. Duncan-Hively's office, Plaintiff took the MMPI and Symptom Checklist with her.

After Plaintiff left Dr. Duncan-Hively's office, Plaintiff's counsel called defense counsel and refused to have her client submit to any written testing. Faced with this prohibition, defense ...


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