United States District Court, D. Colorado
JAMI BORGMANN, individually and on behalf of minor children, S.B. and E.B., JUSTIN BORGMANN, individually and on behalf of minor children, S.B. and E.B., TONY AUYANG, MARY RITZ, JAMES RITZ, ROBBY ORBANOSKY, JUDITH ORBANOSKY, HANNAH ORBANOSKY, PHILIP WINTERLAND, JOSLYN WINTERLAND, STEVAN ADJEMIAN, ASHLEY ADJEMIAN, KELSY HERRICK, individually and on behalf of minor children, D.H. and M.H. and JEFFREY HERRICK, individually and on behalf of minor children, D.H. and M.H., Plaintiffs,
WEYERHAUSER COMPANY, and WEYERHAUSER NR COMPANY, Defendants.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiffs' Motion to Withdraw Deemed
Admissions and for Leave to Serve Responses [filed
January 11, 2019; ECF No. 124]. The Court heard this
matter in part on August 28, 2018. ECF No. 89. At that time,
Plaintiffs' counsel essentially conceded that Plaintiffs
submitted untimely responses to Defendant's requests for
admissions (“RFAs”) served on Plaintiffs Jami
Borgmann and “M.H.” Tr. 5: 17-25; 16: 12-16, ECF
No. 98. The Court concluded that, since the parties had
insufficient time to confer on the responses submitted, it
was premature to rule on whether the challenged requests
could be deemed admitted. Id. 16: 3-7, 21-24. The
Court set the matter for a further conference on September
10, 2018; however, the parties alerted the Court that
“they ha[d] made progress in resolving their discovery
dispute” and requested that the conference be vacated.
ECF No. 91. The present motion followed four months later.
contend that while they “failed to timely respond to
the RFAs” within the deadline set forth in Fed.R.Civ.P.
36(a), the rule also permits withdrawal of deemed admissions
if no prejudice inures to the producing party. ECF No. 124 at
2-3. Plaintiffs assert that, since the deemed admissions
would have a “catastrophic” effect on the
Plaintiffs' claims and would cause no prejudice to
Defendant here, where discovery has not closed and no trial
date has been set, the Court should grant their request to
withdraw the deemed admissions. Id.
counters that it would, in fact, suffer prejudice by
withdrawal of the admissions in that Plaintiffs have provided
contradictory and “confusing” discovery
responses, but deeming the requests concerning
Plaintiffs' damages admitted would alleviate any
confusion and permit Defendant to prepare its expert reports
within the current deadline. ECF No. 131 at 2. In addition,
Defendant asserts that Plaintiffs overstate the effect of
deeming the requests admitted, since the admissions simply
“narrow the scope of damages” to which Jami
Borgmann and M.H. are purportedly entitled rather than
destroy their claims altogether. Id.
reply that they had submitted supplemental responses on
February 1 and 7, 2019, which should alleviate any concerns
raised by Defendant. ECF No. 136. They also contend that
deeming admitted all requests served on Borgmann would
“foreclose” “well over 75% of her claims
and damages” and one of the requests served on M.H.
would not “permit her to maintain her claims for
emotional injuries.” Id. at 2-3.
provides that “[a] party may serve upon any other party
a written request to admit” the truth of certain
matters. Fed.R.Civ.P. 36(a)(1). If the receiving party fails
to respond to the request within 30 days, or within such
other time as the court may allow, the matter is deemed
admitted. Fed.R.Civ.P. 36(a)(3).
matter is admitted, it “is conclusively established
unless the court, on motion, permits the admission to be
withdrawn or amended.” Fed.R.Civ.P. 36(b). The court
may permit such withdrawal or amendment “if it would
promote the presentation of the merits of the action and if
the court is not persuaded that it would prejudice the
requesting party in maintaining or defending the action on
the merits.” Id.; see also Raiser v. Utah
Cnty., 409 F.3d 1243, 1246 (10th Cir. 2005). The first
part of the test “emphasizes the importance of having
the action resolved on the merits and is satisfied when
upholding the admissions would practically eliminate any
presentation of the merits of the case.”
Raiser, 409 F.3d at 1246 (quoting Perez v.
Miami-Daid Cnty., 297 F.3d 1255, 1266 (11th Cir.2002)).
Regarding the second part of the test, “[m]ere
inconvenience does not constitute prejudice.”
Id. Rather, the prejudice “relates to the
difficulty a party may face in proving its case, e.g., caused
by the unavailability of key witnesses, because of the sudden
need to obtain evidence with respect to the questions
previously deemed admitted.” Id. (quoting
Hadley v. United States, 45 F.3d 1345, 1348 (9th
both parties allege delay and other discovery
“obstacles” against each other, the Court finds,
in the end, that justice requires presentation of the merits
of the claims in this case. With that said, the Court
expresses its bewilderment that Plaintiffs failed to heed its
admonition at the August 28, 2018 conference regarding the
necessity to respond immediately to notice of a missed
deadline, particularly in seeking leave to extend such
deadline or, in this case, to seek withdrawal of deemed
admissions. ECF No. 98, 6: 19-25, 7: 1-6; 9: 4-20. As stated
above, the present motion was filed four months after the
parties notified the Court they had essentially resolved the
dispute and, although Defendant raised the timing of this
motion in its response brief, Plaintiffs still failed to
explain their inaction.
and in accordance with Fed.R.Civ.P. 36(b), the Court finds no
prejudice will inure to Defendant by withdrawing deemed
admissions 1-6 served on Borgmann and deemed admission 3
served on M.H. First, Defendant has had the opportunity to
depose the Plaintiffs. Second, Defendant has neither rebutted
the fact that Plaintiffs served supplemental responses in
early February nor challenged such responses as insufficient.
And, third, the March 18, 2019 expert witness deadline has
come and gone with no word from Defendant as to whether it
was unable to effectively disclose its expert witness(es).
The discovery deadline is still almost two months away and,
thus, sufficient time remains for any discovery into the
requests for admission, if necessary. See Raiser,
409 F.3d at 1246 (prejudice results from the difficulty a
party may face in proving its case). The Court presumes,
based on Defendant's silence since its February 1, 2019
response, that it will require no additional time for
discovery, but the Court would entertain any well-supported
the Court finds that withdrawal of deemed admissions 1-6
served on Borgmann and deemed admission 3 served on M.H. will
promote the presentation of the merits of Plaintiffs'
claims in this case. Accordingly, Plaintiffs' Motion to
Withdraw Deemed Admissions and for Leave to Serve Responses
[filed January 11, 2019; ECF No. 124] is
granted as set forth herein.
At all relevant times, including the
briefing of this matter, Weyerhauser Company was the only