PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

No. 10-2328

_____________

 

GLORIA WASHINGTON,

Appellant

v.

HOVENSA LLC;

TRIANGLE CONSTRUCTION 

AND MAINTENANCE, INC. 

_____________

Appeal from the District Court

of the Virgin Islands

(D.C. Civil No. 1-06-cv-00097)

District Judge: Honorable Harvey Bartle, III

_____________ 

Argued April 12, 2011

Before: SCIRICA, RENDELL and AMBRO, Circuit Judges

(Filed: July 21, 2011)

_____________
2

K. Glenda Cameron, Esq.

Law Offices of K.G. Cameron

2006 Eastern Suburb, Suite 101

Christiansted, St Croix

USVI 00820

 

Lee J. Rohn, Esq. [Argued]

Law Offices of Rhon & Carpenter

1101 King Street

Christiansted, VI 00820

 Counsel for Appellant

Sunshine S. Benoit, Esq.

Bryant, Barnes, Beckstedt & Blair

1134 King Street, 2nd Floor

P.O. Box 224589

Christiansted, St. Croix, VI 00820

 Counsel for Appellant Hovensa LLC

David J. Cattie, Esq. [Argued]

Charles E. Engeman, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart

1336 Beltjen Road, Suite 201

St. Thomas, VI 00802

 Counsel for Appellee Triangel

 Construction and Maintenance, Inc.

_____________

OPINION OF THE COURT 

_____________
3

RENDELL, Circuit Judge.

In this appeal, we review the District Court‟s grant of 

defendants‟ motion to dismiss for lack of subject-matter 

jurisdiction based on its determination that plaintiff Gloria 

Washington was domiciled in the Virgin Islands at the time 

she filed her complaint against defendants Hovensa, LLC

(“Hovensa”) and Triangle Construction and Maintenance, 

Inc. (“Triangle”), notwithstanding her insistence that she was 

domiciled in Texas. In reviewing a district court‟s conclusion

regarding where a party is domiciled, our review is for clear

error as to the court‟s factual determination but de novo as to 

the applicable legal principles and the court‟s conclusions of 

law. See McCann v. Newman Irrevocable Trust, 458 F.3d 

281, 286 (3d Cir. 2006) (“A district court‟s determination 

regarding domicile or citizenship is a mixed question of fact 

and law . . . .”); Krasnov v. Dinan, 465 F.2d 1298, 1299-1300 

(3d Cir. 1972) (“Historical or chronological data which 

underline a court‟s determination of diversity jurisdiction are 

factual in nature.”) (internal citations omitted). 

Although a court‟s inquiry into where a party is 

domiciled involves a predominantly factual determination, 

see McCann, 458 F.3d at 286; Krasnov, 465 F.2d at 1300, 

certain well-defined legal precepts can, and in this case, do, 

govern that determination. Here, we take issue primarily with 

the District Court‟s application of those legal principles to 

reach the conclusion that Washington was domiciled in the 

Virgin Islands. We also find that the District Court erred in 

concluding that Washington‟s business, domestic and social 

life was centered in St. Croix. We will accordingly remand 

this case. 
4

I.

On April 5, 2006, Gloria Washington was injured 

while driving a rental car on Hovensa‟s property in the Virgin 

Islands. She alleged in her complaint that, at the time she was 

driving, improperly trained Triangle employees were 

conducting sandblasts without proper supervision or 

barricades and using faulty sandblasting equipment. A

sandblast that hit Washington‟s vehicle shattered the driver‟s 

side window, resulting in physical injuries to Washington and 

damage to her rental car. On July 24, 2006, she filed a 

complaint in the District Court of the Virgin Islands against

Hovensa and Triangle, citizens of the Virgin Islands, based on 

diversity of citizenship, claiming that they were responsible 

for her physical injuries and the damage to the vehicle. 

At the time Washington filed this complaint, she had 

ties to both the Virgin Islands and Texas. She owned a home 

in Baytown, Texas, but also had an apartment in St. Croix, 

where she had been living and working for seven months.

She had been employed in Baytown, Texas by Sabine Storage 

Operations, a Texas corporation, but went to the V.I. in 

December 2005 to work as a pipe inspector for Sabine; there, 

she was assigned to work at the Hovensa refinery in St. Croix. 

When asked by opposing counsel at her deposition whether 

she knew, in December 2005, “how long the assignment [at 

the Hovensa refinery] was going to be, or was it indefinite,” 

she replied: “I didn‟t know. It was indefinite.” In 

summarizing her testimony on this point, the District Court 

stated that her “work assignment at the Hovensa refinery was 

for an indefinite period of time,” a fact the Court considered 

“significant.”
5

Washington was born in St. Croix, and several of her 

family members, including her mother, sister, and brothers, 

resided there in July 2006. Upon returning to the Virgin 

Islands in December 2005, Washington rented and furnished 

an apartment that she was living in at the time of the accident. 

The District Court found that her apartment “was in close 

proximity” to her “mother, sisters, brothers, nieces and 

nephews” and that “she socialized with them on a regular 

basis.” The record clearly establishes only that she lived in 

the same area as her sister and that, at the time of her 

deposition, she went swimming every couple of weeks with 

her family. In addition, Washington began a romantic 

relationship with a V.I. resident after arriving in St. Croix but 

before filing her complaint. Between her arrival in St. Croix 

and the time of the accident, Washington had not returned to 

Texas.

At the time she filed her complaint, Washington also 

had several links to Texas: she owned the home in Baytown, 

Texas, which she was maintaining at the time of the suit and

in which her daughter now lives; she received mail at her 

Baytown address; her primary care doctor, whom she saw at 

least yearly, was located in Texas; she maintained her Texas 

driver‟s license and owned a car in Texas; she paid taxes in 

Texas; she continued to have a bank account in Texas; she 

maintained a cell phone with a Texas company; and she

visited Texas about three to five times a year. Conversely, in 

the V.I., she did not have a primary care physician, a driver‟s 

license, or a bank account, and she had never purchased a 

home or joined any organizations there. In July 2006, she 

was receiving a $100 per diem from her employer to cover 

her rent and other living expenses during her time in St. 

Croix. In an affidavit submitted after defendants filed their 
6

motion to dismiss, Washington stated that, when she traveled 

to St. Croix, she intended to return to Texas when her project 

was complete, and to continue to live in Texas. 

II.

Washington sued Hovensa and Triangle in the District 

Court of the Virgin Islands on July 24, 2006. At the end of 

the discovery period that followed, both parties filed motions, 

the disposition of which Washington challenges on appeal. 

After failing to reach an agreement with defendants‟ counsel 

to extend expert discovery deadlines, Washington filed a 

Motion to Extend the Expert Deadlines on the basis that her 

vocationalist and economist did not yet have access to a 

hearing test that they needed in order to testify. The 

Magistrate Judge denied her motion, which was filed after the 

expiration of the deadline set by the District Court‟s Final 

Scheduling Order, finding that Washington failed to establish 

good cause for modifying the scheduling order under Fed. R. 

Civ. P. Rule 16(b)(4). 

Washington also delayed in getting the Independent 

Medical Examination (“IME”) at Triangle‟s expense that the 

parties agreed she would undergo. She canceled her first 

appointment and refused to have X-rays taken at the second. 

In response, Triangle filed an Emergency Motion for Physical 

Examination of Washington at her expense, which the 

Magistrate Judge granted. Washington then moved for 

reconsideration, which the Magistrate Judge denied. 

After these motions were resolved, defendants filed a 

Motion to Dismiss for Lack of Subject Matter Jurisdiction 

pursuant to Fed. R. Civ. P. Rule 12(h)(3), on the ground that 
7

Washington was domiciled in the V.I. when she filed her 

complaint, not in Texas, and, thus, that the District Court 

lacked jurisdiction over her cause of action. The District 

Court granted defendants‟ motion, finding it significant that 

“the center of [Washington‟s] business, domestic, and social 

life was in St. Croix,” and that she was living and working in 

the V.I. when the complaint was filed. Washington v. 

Hovensa, LLC, 2010 WL 1734775, at *2 (D.V.I. April 28, 

2010). It placed particular emphasis on her expectation that

her job in the V.I. would “continue indefinitely,” relying on 

certain language in Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 

1972). Id. There, despite defendant‟s ties to Connecticut, we 

concluded that he was domiciled in Pennsylvania because he 

was to remain there indefinitely. See Krasnov, 465 F.2d at

1302-03. The District Court believed Washington‟s case to 

be analogous. It acknowledged that Washington owned an 

unoccupied house in Texas and had other ties to that state, but 

ultimately concluded that “her physical presence in the Virgin 

Islands, her intent to work indefinitely in St. Croix, and her 

business and social life there” pointed “decisively” towards 

the Virgin Islands as her domicile. Washington, 2010 WL 

1734775, at *2. 

In determining Washington‟s domicile, the District 

Court determined that her own affidavit statement declaring 

her intention to return to and permanently reside in Texas 

“must be disregarded.” It explained that “„[o]ne‟s testimony 

as to his intention to establish a domicile, while entitled to 

full and fair consideration, is subject to the infirmity of any 

self-serving declaration, and it cannot prevail to establish 

domicile when it is contradicted or negatived by an 

inconsistent course of conduct; otherwise stated, actions 

speak louder than words.‟” Id. (quoting Korn v. Korn, 398 
8

F.2d 689, 691 (3d Cir. 1968)). Instead, the Court chose to 

look only to Washington‟s statements prior to defendants‟ 

motion to dismiss and her actions at the time of the filing of 

the complaint.

On appeal, Washington challenges the District Court‟s 

dismissal for lack of subject matter jurisdiction, arguing that, 

at the time she filed her complaint, she was on temporary 

assignment in the Virgin Islands for her Texas employer but 

that she remained a Texas domiciliary who intended to return 

to, and permanently reside in, Texas. She also challenges the 

Magistrate Judge‟s denial of her Motion to Extend Expert 

Deadlines and grant of Triangle‟s Emergency Motion for 

Physical Examination at Washington‟s expense. 

We have jurisdiction over this appeal under 28 U.S.C. 

§ 1291, as we are reviewing a final order of the district court.

III.

Under § 1332(a)(1), federal district courts have

original jurisdiction over civil actions where the matter in 

controversy exceeds the sum or value of $75,000 and is 

between “citizens of different States.” 28 U.S.C. § 

1332(a)(1). We determine the citizenship of the parties based 

on the relevant facts at the time the complaint was filed. S. 

Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. 

Ltd., 181 F.3d 410, 414 n.2 (3d Cir. 1999) (citing Smith v. 

Sperling, 354 U.S. 91, 93 n.1 (1957)).

A party‟s citizenship is determined by her domicile, 

and “„the domicile of an individual is his true, fixed and 

permanent home and place of habitation. It is the place to 
9

which, whenever he is absent, he has the intention of 

returning.‟” McCann, 458 F.3d at 286 (quoting Vlandis v. 

Kline, 412 U.S. 441, 454 (1973)). Thus, domicile is 

established by an objective physical presence in the state or 

territory coupled with a subjective intention to remain there 

indefinitely. See Frett-Smith v. Vanterpool, 511 F.3d 396, 

400-01 (3d Cir. 2008). When the objective and subjective 

concur, one‟s domicile is immediately established. Krasnov, 

463 F.3d at 1300. 

As we explained in McCann, a court considers several 

factors in determining an individual‟s domicile, including 

“„declarations, exercise of political rights, payment of 

personal taxes, house of residence, and place of business.‟” 

McCann, 458 F.3d at 286 (quoting Krasnov, 465 F.2d at 1301

(internal quotation omitted)). Other factors to be weighed 

may include “location of brokerage and bank accounts, 

location of spouse and family, membership in unions and 

other organizations, and driver‟s license and vehicle 

registration.” Id. (citing 13B Charles Alan Wright, Arthur R. 

Miller & Mary Kay Kane, Federal Practice and Procedure § 

3612 (3d ed. 2005)). More generally, the court must locate 

“the center of one‟s business, domestic, social and civic life.” 

Frett-Smith, 511 F.3d at 401. 

IV.

We begin our review of the District Court‟s domicile 

determination by noting a legal precept that may not have 

been stressed before the District Court but that we 

nonetheless consider important. As we have explained, an

individual‟s domicile changes instantly if he “takes up 

residence at the new domicile” and “intend[s] to remain 
10

there.” Krasnov, 465 F.2d at 1300. But “„[a] domicile once 

acquired is presumed to continue until it is shown to have 

been changed.‟” Korn, 398 F.2d at 691 n.4 (quoting Mitchell 

v. United States, 88 U.S. 350, 353 (1874)). “This principle,” 

we said in McCann, “gives rise to a presumption favoring an 

established domicile over a new one.” McCann, 458 F.3d at 

286-87 (citing Acridge v. Evangelical Lutheran Good 

Samaritan Soc., 334 F.3d 444, 448 (5th Cir. 2003)); see also 

Gutierrez v. Fox, 141 F.3d 425, 427 (2d Cir. 1998); State 

Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d 514, 519 (10th Cir. 

1994); Holmes v. Sopuch, 639 F.2d 431, 434 (8th Cir. 1981); 

Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 

(1st Cir. 1979); Stine v. Moore, 213 F.2d 446, 447 (5th Cir. 

1954); 13B Wright et al., supra, § 3612. 

This presumption does not shift the burden of proof to 

establish diversity of citizenship away from the proponent of 

federal jurisdiction; the party asserting diversity jurisdiction –

here, Washington – retains the burden of proving that 

diversity of citizenship exists by a preponderance of the 

evidence. See Krasnov, 465 F.2d at 1301. Nevertheless, the 

presumption does demand more from the party seeking to 

establish a new domicile – here, Hovensa and Triangle – than

if that party were seeking to establish a continuing domicile. 

See 13B Wright et al., supra, § 3612 (“The effect of this 

presumption is to put a heavier burden on a party who is 

trying to show a change of domicile than is placed on one 

who is trying to show the retention of an existing or former 

one.”).1 This “heavier burden” involves “shifting to . . . [the] 

 

1

See also Fed. R. Evid. Rule 301 (“In all civil actions and 

proceedings not otherwise provided for by Act of Congress or 

by these rules, a presumption imposes on the party against 
11

party [that bears it] the burden of production regarding the 

change of domicile, not raising the standard of proof.” 

McCann, 458 F.2d 281 at 287 n.3.2 When the party “claiming 

a new domicile is the opponent of federal jurisdiction,” as 

here, it “bears the initial burden of producing sufficient 

evidence to rebut the presumption in favor of the established 

domicile.” Id. at 288. If the opposing party – in this case, 

Washington – is successful, the presumption is defeated, the 

case proceeds, and “the party asserting jurisdiction bears the 

burden of proving diversity of citizenship.” Id.

Here, while it is conceivable that defendants presented 

enough evidence to meet their burden of production, it is not 

clear from the District Court‟s opinion that it even considered 

 

whom it is directed the burden of going forward with 

evidence to rebut or meet the presumption, but does not shift 

to such party the burden of proof in the sense of the risk of 

nonpersuasion, which remains throughout the trial upon the 

party on whom it was originally cast.”). 

2

The burden of proof in a civil case has two distinct 

components – the burden of going forward with proof, which 

is referred to as the “burden of production,” and the burden of 

persuading the trier of fact, known as the “burden of 

persuasion.” McCann, 458 F.3d at 287. “The party bearing 

the burden of persuasion must lose if the evidence is evenly 

balanced. The burden of production, in contrast, does not 

concern the quantum of proof required for a party to 

ultimately prevail, but instead determines which party must 

first present evidence sufficient to raise a given issue as 

pertinent.” United States v. Harstock, 347 F.3d 1, 7 (1st Cir. 

2003). 
12

the presumption as it weighed the evidence. Where so many 

facts that our caselaw regards as important bolster the

baseline presumption that Washington retained her 

established residence in Texas – from Washington‟s home 

ownership, driver‟s license, vehicle registration, bank 

account, cell phone, and primary care doctor in Texas to her 

employer‟s per diem payments while she was in the V.I. –

defendants have a substantial initial hurdle to overcome in 

introducing evidence that Washington was domiciled in the 

V.I..

3

 We are not convinced that, in light of the presumption 

 

3 Numerous cases focus on these very indicia as being 

important. See, e.g., Frett-Smith, 511 F.3d at 401 (in ruling 

that plaintiff was domiciled in the V.I., emphasizing that she 

filed tax returns in the V.I. and had a U.S.V.I. driver‟s 

license); Muscarello v. Ogle County Bd. of Comm’rs, 610 

F.3d 416, 424 (7th Cir. 2010) (in finding that plaintiff was 

domiciled in Arizona, pointing to her registration to vote in 

Arizona, Arizona driver‟s license, and listing of her Arizona 

address with Medicare and Social Security and on various 

property tax bills); Garcia Perez v. Santaella, 364 F.3d 348, 

352-53 (1st Cir. 2004) (finding that plaintiffs were domiciled 

in Florida, which became their “personal and financial base,” 

where they acquired Florida drivers‟ licenses, registered to 

vote there, and opened a Miami bank account that they used 

as their primary account); Schiavone v. Donovan, 2009 WL 

2957315, at *3 (D.N.J. Sept. 15, 2009) (finding that the 

preponderance of evidence supports a Florida domicile 

where, among other facts pointing toward Florida, defendant 

was registered to vote in Florida, had a Florida driver‟s 

license, owned property there, had a bank account and safety 

deposit box there, received a tax exemption there, and 

registered a vehicle and maintained auto insurance there); 
13

of continued domicile, the District Court gave the facts 

supporting the presumption of Washington‟s established 

domicile in Texas all the weight they deserved. While the 

District Court included these facts in its factual recitation, 

they do not appear to have been given any weight in its 

analysis. 

The second legal principle we wish to stress relates to 

the consideration to be given to an admittedly self-serving 

affidavit. Washington submitted an affidavit after defendants 

filed their motion to dismiss, stating that, at the time she filed 

her complaint, she intended to return to Texas and to continue 

to live in Texas once her project in the V.I. was completed. 

Citing Korn, the District Court determined that the affidavit 

“must be disregarded.” Washington, 2010 WL 1734775, at 

*2. It provided no further explanation beyond this citation as 

 

Doe v. Schwerzler, 2008 WL 1781986, at *3 (D.N.J. Apr. 17, 

2008) (finding that plaintiff was domiciled in Kentucky based 

on “proof . . . dispositive on the issue of her citizenship”: that 

she had registered to vote in Kentucky, had a Kentucky 

driver‟s license, leased property in Kentucky, and paid 

utilities and income taxes there); Murphy v. Miller, 2005 WL 

318749, at *1 (E.D. Pa. 2005) (concluding, based on “the 

factors that have been analyzed time and time again in this 

district,” – including defendant‟s opening a bank account in 

California, buying and registering a car there, and applying 

for a California driver‟s license – that he was domiciled in 

California); Messick v. S. Pa. Bus Co., 59 F. Supp. 799 (D.C. 

Pa. 1945) (in finding that plaintiff was domiciled in 

Delaware, attaching significance to his home ownership, bank 

account, and payment of taxes in Delaware). 
14

to why it chose to disregard Washington‟s testimony or how 

the situation in Korn maps onto the facts at issue here. 

In Korn, we stated that “[o]ne's testimony as to his 

intention to establish a domicile, while entitled to full and fair 

consideration, is subject to the infirmity of any self-serving 

declaration, and it cannot prevail to establish domicile when it 

is contradicted or negatived by an inconsistent course of 

conduct.” 398 F.2d at 691 (emphasis added). In Korn, a 

divorce action, the plaintiff sought to establish domicile in St. 

Thomas. He declared in an affidavit that he traveled to St. 

Thomas with the intent to make it his permanent residence 

and domicile. Yet, as we outlined in detail, his “entire course 

of conduct” contradicted his declaration of intent.

4

 We thus

 

4

Plaintiff was a doctor who had practiced osteopathic 

medicine in Philadelphia, Pennsylvania for thirty-one years 

before going to St. Thomas. He had been convicted in 

Philadelphia of performing an illegal abortion and was in the 

midst of divorce proceedings in both Philadelphia and New 

Jersey when he left suddenly for St. Thomas, discontinued the 

pending actions, and commenced a new divorce suit. Despite 

his testimony that he was coming to the V.I. to “make a new 

life” and start a new practice there, he made no attempt to 

ascertain the requirements for medical licensing until five 

months after arriving there. Moreover, at the time he filed the 

divorce action, he had made no attempt to establish a 

permanent home in the V.I., had traveled back and forth to 

the U.S. several times, had checked in and out of several 

hotels in the V.I., continued to list his address on official 

documents as Philadelphia, PA, and continued to maintain his 

health insurance in Philadelphia. Korn, 398 F.3d at 693. 

 
15

discounted his self-serving testimony that he planned to stay 

in the V.I., and drew the “inescapable conclusion” that he was 

forum shopping in his quest for a divorce. Id. at 693. 

However, this is not a case like Korn where “the 

surrounding facts and circumstances clearly indicate” that 

plaintiff‟s testimony is fabricated. 398 F.2d at 691. To the 

contrary, Washington‟s statement that she intended to return 

to and reside in Texas is buttressed, not contradicted, by her 

course of conduct at the time she filed her complaint. 

Accordingly, Korn is not controlling, and Washington‟s 

affidavit should not have been disregarded. 

We think it is important that a court be guided by these 

key legal principles in determining domicile, and we will 

remand for it to do so and render its ruling giving them due 

consideration. 

V.

The District Court also made an error of fact. In its 

brief consideration of the facts pointing toward the V.I., and 

those pointing toward Texas, the District Court twice 

mentioned that Washington‟s business, domestic and social 

life was centered in St. Croix. Yet, little evidence in the 

record supports this conclusion as to Washington‟s life at the 

time she filed the complaint. Washington testified to living in 

the same neighborhood as her sister and to starting a romantic 

relationship with a V.I. resident prior to filing her complaint, 

but the record is otherwise lacking in evidence that she 

socialized often with her family or with other V.I. residents or 

that her “business life” in the V.I. went beyond her temporary 

employment assignment there. 
16

On the other hand, the record does contain indicia that 

her stay in the V.I. was transient and not permanent when she 

filed her complaint. As mentioned above, Washington set up 

none of the trappings of a “true, fixed and permanent home,” 

McCann, 458 F.3d at 286, in the V.I., and her employer was 

paying her a $100 per diem for living expenses at the time she 

filed her complaint. The District Court does not mention 

these facts in analyzing the issue. 

This factual error does not render the District Court‟s 

entire decision clearly erroneous, but it should be corrected 

on remand, as it is not supported by evidence in the record. 

VI.

Relatedly, we note that, while it is generally useful to 

analogize fact patterns of other cases and base rulings on 

outcomes in similar cases, it may not be quite so useful in this 

type of case, where the facts presented can vary so slightly, 

and yet the slightest variation leads to a different result.5 

Here, the District Court concluded that Washington‟s 

statement that the length of her job was “indefinite” when she 

went to the V.I. made her case analogous to the situation in 

Krasnov. In Krasnov, we ruled that defendant, a member of a 

semi-monastic teaching order headquartered in Connecticut 

 

5 Cf. Gallagher v. Philadelphia Transp. Co., 185 F.2d 

543, 546 (3d Cir. 1951) (conceding that “there is a good deal 

of rather ambiguous talk in the cases, some of which might 

arguably be taken to support [the district court‟s] . . . 

position,” but nonetheless reversing the district court‟s 

domicile determination). 
17

who was working in Pennsylvania when he filed his 

complaint, was domiciled in Pennsylvania. Defendant was 

regularly transferred to different locations for teaching 

assignments. He had very few possessions and owned no 

property other than a foot locker which accompanied him to 

Pennsylvania. 465 F.3d at 1301. In determining that he was 

a Pennsylvania domiciliary, we considered these facts as well 

as his testimony that he intended to remain in Pennsylvania as 

long as he was assigned to teach there and that the term of his 

teaching assignment was indefinite. Id. at 1301-02. 

However, there was no discussion in Krasnov of any other, let 

alone established, residence to which the defendant said he 

intended to return. Unlike Washington, he went from 

assignment to assignment in a different location each time. 

This variation in the facts makes a difference; here, we think, 

it is an important one. Washington‟s testimony as to her lack 

of knowledge of the length of her assignment in the V.I. is not 

analogous to the situation in Krasnov. 

Accordingly, we will vacate and remand for further 

proceedings consistent with this opinion. 

VII.

Washington also challenges the Magistrate Judge‟s 

orders denying her motion for extension of expert deadlines 

and granting defendants‟ motion to compel a medical 

examination.6 We find that, because Washington failed to 

 

6 We review a district court‟s discovery order for abuse of 

discretion, and we will not disturb such an order absent a 

showing of actual or substantial prejudice. Anderson v. 

Wachovia Mortg. Corp., 621 F.2d 261, 281 (3d Cir. 2010).
18

follow the proper procedure to object to the Magistrate 

Judge‟s order denying extension of expert deadlines, she has 

waived her right to challenge this order on appeal. See 

United Steelworkers of Am. v. New Jersey Zinc Co., 828 F.2d 

1001, 1006 (3d Cir. 1987). Moreover, even if the issue were 

not waived, we discern no abuse of discretion in the 

Magistrate Judge‟s denial of Washington‟s request based on a 

finding that Washington failed to establish good cause for 

modifying the scheduling order. The Magistrate Judge also 

did not abuse his discretion in granting appellees‟ motion to 

compel a medical examination and in requiring Washington 

to pay the expenses of the examination. Accordingly, we 

affirm the Magistrate Judge‟s rulings on these motions.