How to Withdraw Responses to Requests for Admission

Withdrawing responses to requests for admission occasionally becomes necessary. I discussed this once in theory, but Fid. Nat’l Title Ins. Co. v. Tahoe Reg’l Planning Agency, 2014 U.S. Dist. LEXIS 38384 (D. Nev. Mar. 21, 2014) applied it in reality.

Fidelity sent RFAs to Merkelbach, who did not timely respond. When this occurs in state courts, I routinely see parties file motions to asking the court to deem unanswered requests for admission admitted. This is unnecessary at best, counterproductive at worst.

Recognizing the unavailability of a motion to compel answers to the requests for admissions, the Plaintiff seeks an order from the Court confirming that the matters in the requests for admission are deemed admitted. Rule 36 does not require a motion for the Court’s imprimatur on the unanswered requests for admission. The rule is self-executing. Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial ¶ 11:812 (The Rutter Group 1997). A motion to establish or affirm the admissions upon a party’s failure to admit or object is unnecessary under Rule 36(a). The resources of the parties and the Court should be devoted to other pursuits in the case.

Id. (quoting American Technology Corp. v. Mah, 174 F.R.D. 687, 690 (D. Nev. 1997)).

Applied to Merkelbach, she “did not obtain a stipulation to extend the deadline to respond to the requests; nor did she seek a court order extending the time.” Consequently the RFAs were automatically admitted when she did not timely respond.

Merkelbach then sought to invoke Rule 36(b) and withdraw or amend her “responses” to the RFAs. The rule permits “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…” The court then established the standard governing this motion.

A motion to withdraw an admission is discretionary with the court. Conlon v. U.S., 474 F.3d 616, 621 (9th Cir. 2007). It is permissive, and not mandatory. Id. (citing Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1248 (9th Cir. 1981)). Still, the two factors in Rule 36(b) are central to the court’s analysis. Conlon, 474 F.3d at 625. The court may consider other factors, such as whether the moving party can show good cause for the delay. Id. That said, “‘a court should not go beyond the necessities of the situation to foreclose the  [9] merits of controversies as punishment.'” Hadley v. U.S., 45 F.3d 1345, 1350 (9th Cir. 1995) (citation omitted).

“The first prong [of Rule 36(b)’s test for withdrawal of an admission], which essentially asks if allowing the withdrawal will aid in the resolution of the case, favors allowing defendants to withdraw the admissions.” Gallegos v. City of Los Angeles, 308 F.3d 987, 993 (9th Cir. 2002). This first prong “is satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case.” Conlon, 474 F.3d at 622 (internal quotation marks omitted).

The first prong was satisfied because Fidelity’s RFAs went to the heart of its case against Merkelbach. “[W]ithdrawal of the admissions would aid in the resolution of the case on its merits, while upholding the admissions would likely eliminate the presentation of the merits of the case as far as Merkelbach is concerned.”

But could Fidelity establish prejudice to defeat the second prong?

Under the second prong, the propounding party must establish it will suffer prejudice if the admissions are allowed to be withdrawn. “‘The prejudice contemplated by Rule 36(b)…relates to the difficulty a party may face in proving its case,’ including problems ’caused by the unavailability of key witnesses,’ or ‘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 Cir. 1995)); see also Conlon, 474 F.3d at 622. Inconvenience does not amount to prejudice. See Conlon, 474 F.3d at 622-23.

“When undertaking a prejudice inquiry under Rule 36(b), district courts should focus on the prejudice that the nonmoving party would suffer at trial.” Id. at 623 (citing Sonoda v. Cabrera, 255 F.3d 1035, 1039-40 (9th Cir. 2001)). Conlon pointed to Sonoda, where the court granted the motion to withdraw the admissions because it was made before trial and the propounding party would not have been hindered in presenting its evidence, and Hadley, which focused on the unavailability of key witnesses and sudden need to present evidence. The Ninth Circuit has held that “reliance on a deemed admission in preparing a summary judgment motion does not constitute prejudice.” Conlon, 474 F.3d at 623. The Ninth Circuit likewise concluded that when deemed admissions resulted in another party choosing not to engage in other discovery, it did not amount to prejudice. Id. It specifically noted that under those circumstances, the district court has the option of re-opening discovery, and reiterated that the prejudice must relate to the hardship the party will suffer in proving its case at trial. Id.

Considering this standard, the court concluded Fidelity could not demonstrate prejudice.

The court has just recently issued an order in this case vacating the pretrial conference and trial dates. A new party has recently been added, and while it has not currently extended or stayed discovery, the court advised the parties it would set a discovery status conference to discuss whether certain discovery deadlines need to be extended. Moreover, Fidelity did not assert a single argument in its responsive brief that it would be prejudiced as a result of a withdrawal of the admissions. It did not argue it would face any difficulty in proving its case as a result of a withdrawal of the admissions. Nor did it cite any problems such as the unavailability of key witnesses or the sudden need to obtain evidence if the admissions are withdrawn.

So Merkelbach was permitted to withdraw the “responses” she never served and ordered to answer within 30 days. But wait, were Merkelbach’s objections to the RFAs also waived? Yes.

While Rule 36 does not contain a provision that untimely objections result in a waiver as does Rule 33, courts have interpreted Rule 36 as impliedly containing such a provision. See, e.g., Apple, Inc. v. Samsung Electronics Co., Ltd., No. C 11-cv-1846 LHK (PSG), 2012 U.S. Dist. LEXIS 38508, 2012 WL 952254 at * 2 (N.D. Cal. Mar. 20, 2012) (finding that failure to timely assert objection to request for admission resulted in waiver of objection); Osborn v. Bartos, No. CV-08-2193-PHX-ROS (JRI), 2010 U.S. Dist. LEXIS 114119, 2010 WL 3809847 at * 6 (D. Ariz. Sept. 20, 2010) (finding that because responses to requests for admission were untimely requests were deemed admitted and objections asserted in belatedly served responses were waived). … Any objections she may have otherwise asserted in a timely response to the requests have been waived.

One item this case did not address that I might have raised is whether the RFAs were actually RFAs. Just because the opposing party labels something an RFA does not mean it actually is.

As a side note, the court also separately ruled that untimely objections to requests for production are also waived.

Rule 34 does not include a corollary to Rule 33(b)(4)’s provision concerning waiver when objections are not timely asserted. Nevertheless, courts have interpreted Rule 34 as impliedly containing a waiver provision consistent with that of Rule 33.