DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
5
DAVANELLE FREEMAN,
5
5
Plaintiff,
5
2005-CV-0074
v.
5
5
KMART CORPORATION,
5
5
Defendant.
5
__________________________________________5
TO:
Lee J. Rohn, Esq.
Wilfredo A. Wilfredo, Esq.
ORDER DENYING DEFENDANT’S MOTION TO COMPEL
THIS MATTER came before the Court upon Defendant’s Motion to Compel (Docket
No. 90).  Plaintiff filed an opposition to said motion, and Defendant filed a reply thereto.
Defendant seeks to compel Plaintiff to make herself available for an independent
medical examination (IME).  Defendant contends that it has attempted to schedule the
examination since July 2008 but that Plaintiff has been uncooperative.
While the Court does have authority, pursuant to Fed. R. Civ. P. 35 to order a
physical examination of a party, such an examination is part of discovery and must be
considered within that framework.
Case: 1:05-cv-00074-LDD   Document #: 107   Filed: 04/14/09   Page 1 of 4
Freeman v. Kmart Corp.
2005-CV-0074
Order Denying Defendant’s Motion to Compel
Page 2
A review of the history of this case reveals that fact discovery closed on July 30,
2008.  Fifth and Final Scheduling Order (Docket No. 55), entered April 9, 2008.  A status
1
conference was held on July 7, 2008, following which, the Court entered a Final Scheduling
Order (Docket No. 61), setting the expert deadlines, with Defendant’s expert reports due
by August 29, 2009.  On August 15, 2008, Defendant filed a motion (Docket No. 68) seeking
additional time to submit its experts’ reports, including the report of Dr. Orlando
Fernandez, the doctor that Defendant had retained to examine Plaintiff.  The Court granted
Defendant’s request and extended the time for filing the experts’ reports to October 17,
2008.  Order Granting Defendant’s Motion For Extension of Time (Docket No. 74), entered
October 9, 2008.  Thereafter, the parties submitted a stipulation to extend discovery
deadlines (Docket No. 78), that the Court granted and, pursuant to which, entered a Final
Scheduling Order (Docket No. 80), entered December 31, 2008.  However, the only deadline
pertaining to discovery that was extended by that order was the deadline for expert
depositions.
According to Rule 16(b) of the Federal Rules of Civil Procedure, scheduling orders
may be modified “only for good cause and with the judge’s consent.”  Fed. R. Civ. P.
1.  By Order Regarding Defendant’s Motion Requesting Extension of Time (Docket No. 70), entered August
18, 2008, the Court allowed a brief extension, but such extension was extremely limited in scope and time.
Case: 1:05-cv-00074-LDD   Document #: 107   Filed: 04/14/09   Page 2 of 4
Freeman v. Kmart Corp.
2005-CV-0074
Order Denying Defendant’s Motion to Compel
Page 3
16(b)(4).  The Court has declared that “[t]o establish ‘good cause’” under Rule 16(b)(4), ‘the
moving party must demonstrate that a more diligent pursuit of discovery was impossible.
In addition, courts consider whether granting the extension would prejudice the
non-moving party.’” Unlimited Holdings, Inc. v. Bertram Yacht, Inc., Civil 2005-46, 2008 WL
4642191 at *6 (D.V.I. October 15, 2008) (quoting Crossley v. Elliot, 2008 WL 2944667 at *1
(D.V.I.2008) (internal quotation omitted)).
In the matter at bar, Defendant never made the Court aware that it had been unable
to conduct the voluntary IME of Plaintiff between Defendant’s Motion For Extension of
Time to File Report (Docket No. 68), filed August 15, 2008, and its current Motion to
Compel (Docket No. 90), filed March 30, 2009 (over a month after the expert deposition
deadline had expired).  Defendant had numerous opportunities to raise this issue before
the Court, including, but not limited to, prior to the expiration of the extended October 17,
2008, expert report deadline or when the parties entered their Stipulation to Extend
Discovery Deadlines in late December 2008 or even prior to the expiration of the extended
February 27, 2009, expert deposition deadline, not to mention the almost four (4) years this
matter has been pending.  The Court finds that Defendant has had ample time to conduct
the examination and has not shown that more diligent pursuit of Plaintiff’s IME was
impossible.
Case: 1:05-cv-00074-LDD   Document #: 107   Filed: 04/14/09   Page 3 of 4
Freeman v. Kmart Corp.
2005-CV-0074
Order Denying Defendant’s Motion to Compel
Page 4
In addition, the Court finds that reopening discovery at this juncture would
prejudice Plaintiff.  This matter has been pending since May 2005.  Discovery has been
closed and the expert deadlines all have passed.  The dispositive motion deadline already
has expired and the deadlines for filing the proposed joint final pretrial order, trial exhibit
lists, and expert witness lists are fast approaching.  Trial was scheduled to commence June
8, 2009, but has been continued to August 31, 2009, pursuant to Defendant’s motion to
continue.  Plaintiff is entitled to advance this case to trial without further delay. 
Consequently, the Court finds Defendant’s motion untimely.
Accordingly, it is now hereby ORDERED that Defendant’s Motion to Compel
(Docket No. 90) is DENIED.
ENTER:
Dated: April 14, 2009
/s/ George W. Cannon, Jr.                           
GEORGE W. CANNON, JR.                       
U.S. MAGISTRATE JUDGE
Case: 1:05-cv-00074-LDD   Document #: 107   Filed: 04/14/09   Page 4 of 4