Newmark Realty Capital, Inc. v. BGC Partners, Inc. et al

Filing 324

ORDER ON 313 JOINT STATEMENT REGARDING DEFENDANTS' FURTHER MOTION TO COMPEL RESPONSES TO DEFENDANTS' FIRST SET OF REQUESTS FOR ADMISSIONS. Signed by Magistrate Judge Susan van Keulen on 5/1/2018. (ofr, COURT STAFF) (Filed on 5/1/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NEWMARK REALTY CAPITAL, INC.,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-01702-BLF (SVK)

v.
BGC PARTNERS, INC., et al.,
Defendants.

ORDER ON JOINT STATEMENT
REGARDING DEFENDANTS'
FURTHER MOTION TO COMPEL
RESPONSES TO DEFENDANTS' FIRST
SET OF REQUESTS FOR ADMISSIONS
Re: Dkt. No. 313

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Before the Court is the parties’ Joint Statement Regarding Defendants’ Further Motion to
Compel Responses to Defendants’ First Set of Requests for Admission (“Motion”). ECF 313. The

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Motion follows an earlier dispute regarding Plaintiff’s RFA responses, on which the Court issued an

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order on April 19, 2018. ECF 292. In the Motion, Defendants identify three areas where disputes

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remain regarding Plaintiff’s responses to Requests for Admissions (“RFAs”): (1) “Disputed RFAs,”

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which are RFA responses Plaintiff has refused to supplement; (2) “RFAs for which Plaintiff says it

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will provide a ‘qualified admission’”; and (3) “RFAs for which Plaintiff says it will provide denials

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but has not yet supplemented its responses.” For category (1), the Court’s ruling is set forth below.

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For categories (2) and (3), the Court ordered Plaintiff to provide its supplemental responses by 9:00

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a.m. on May 2, 2018 (ECF 316) and, if the parties are unable to comply with the Court’s instructions

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in the closing paragraph of this order, will hold a telephonic hearing on the remaining disputes later
that day. The Court ORDERS as follows:
Legal Standards
A party may serve RFAs relating to facts, the application of law to fact, or opinions about
either, as well as the genuineness of any described documents. Fed. R. Civ. P. 36(a)(1). “The purpose

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of Rule 36(a) is to expedite trial by establishing certain material facts as true and thus narrowing the

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range of issues for trial.” Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir.

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1981).
In responding to RFAs, “[i]f a matter is not admitted, the answer must specifically deny it or
state in detail why the answering party cannot truthfully admit or deny it.” Fed. R. Civ. P. 36(a)(4).

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“A denial must fairly respond to the substance of the matter; and when good faith requires that a party
qualify an answer or deny only a part of a matter, the answer must specify the part admitted and
qualify or deny the rest.” Id. “The answering party may assert lack of knowledge or information as a

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reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that

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United States District Court
Northern District of California

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the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Id.

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A matter may be deemed admitted if the answer does not comply with the requirements of
Rule 36, such as where the responding party fails to answer or object to a proper RFA or offers an
evasive denial. Asea, 669 F.2d at 1245. Even where a response contains the statement required by
Rule 36(a) concerning the party’s inability to admit or deny after a reasonable inquiry, that response

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“does not comply with the requirements of Rule 36(a) if the answering party has not, in fact, made
‘reasonable inquiry,’ or if information ‘readily obtainable’ is sufficient to enable him to admit or deny
the matter.” Id. at 1247. Although a district court may in its discretion deem such RFAs admitted,

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“the district court should ordinarily first order an amended answer, and deem the matter admitted only

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if a sufficient answer is not timely filed.” Id.; see also Rodriguez v. Barrita, Inc., No. 09-04057 RS-

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PSG, 2011 WL 4021410, at *5 (N.D. Sept. 9, 2011) (holding that deeming RFAs admitted is a “severe

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sanction” not ordinarily granted).

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Even if the Court does not deem an RFA admitted, the propounding party may have other
remedies available. For example, “[i]f a party fails to admit what is requested under Rule 36 and if the

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requesting party later proves a document to be genuine or the matter true, the requesting party may

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move that the party who failed to admit pay the reasonable expenses, including attorney's fees,

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incurred in making that proof.” Fed. R. Civ. P. 37(c)(2).

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Disputed RFAs
Plaintiff responded to each of the “Disputed RFAs” listed in Section I of the chart in the
Motion by stating that it “has conducted a reasonable and diligent investigation and the information it

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knows or can readily obtain is insufficient to enable it to admit or deny this request.” Defendants
request that the Court deem these RFAs admitted because, according to Defendants, “[i]f Plaintiff had
conducted a reasonable search, including inquiring of the people most likely to have relevant
information (i.e., Plaintiff’s principals), it would be able to admit or deny this RFA.” Motion at 3.

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United States District Court
Northern District of California

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Plaintiff asserts that it “has conducted a thorough and diligent investigation, including interviewing ten

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of Plaintiff’s principals, to determine whether they recall these numerous unspecified events over long

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periods of time.” Id. at 15.

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The Court holds that Plaintiff’s responses comply with Rule 36(a), and in this case and in light

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of the subject matter of the specific RFAs at issue, the Court will not exercise its discretion to compel

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further responses or deem these matters admitted. Simply because Defendants believe Plaintiff “would
be able to admit or deny” does not provide grounds for compelling Plaintiff to do so. For example,

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where RFAs are directed to whether specific words were spoken or written by certain persons several

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years ago (RFA No. 43), Plaintiff’s response that after a reasonable investigation it can neither admit

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nor deny is credible. Other RFAs are similarly structured and include a reference to the state of mind

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of third parties (RFA Nos. 101-103); again a statement that information reasonably available to

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Plaintiff is insufficient to enable Plaintiff to admit or deny such inquiries is credible. The Court notes

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that Plaintiff’s responses to RFA Nos. 119, 120, 131, while credible for the reasons stated above, may

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provide grounds for an objection by Defendant should Plaintiff offer any such documents at trial.

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RFA No.

Order

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Admit that at least one of
NRC's principals referred to
N&CO. as "Newmark"
before 2009.

Defendants’ motion to compel/deem admitted denied.

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Admit that third parties
contacted NRC before
2012 under the mistaken
belief that it was affiliated
with DEFENDANTS.

Defendants’ motion to compel/deem admitted denied.

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United States District Court
Northern District of California

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102
Admit that third parties
contacted NRC before
2010 under the mistaken
belief that it was affiliated
with DEFENDANTS.

Defendants’ motion to compel/deem admitted denied.

103
Admit that third parties
contacted NRC before
2008 under the
mistaken belief that it
was
affiliated with
DEFENDANTS.

Defendants’ motion to compel/deem admitted denied.

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Admit that YOU were
aware, before 2002, that
DEFENDANTS had
physical locations
(i.e. offices) in
California
operating
under a
name that
included
"Newmark."
119
Admit that NRC received
emails intended for one of
the DEFENDANTS
before April 4, 2016.

Defendants’ motion to compel/deem admitted denied.

Defendants’ motion to compel/deem admitted denied.

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United States District Court
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120
Admit that NRC received
emails intended for one
of the DEFENDANTS
before January 1, 2012.
131
Admit that, before 2012,
NRC received
communications intended
for another entity (i.e. not
NRC or
N&CO.) named
Newmark.

Defendants’ motion to compel/deem admitted denied.

154
Admit that NRC has
published more press
releases in the last three
years (in total) than in
the previous 15 years
combined.

Defendants’ motion to compel/deem admitted denied.

Defendants’ motion to compel/deem admitted denied.

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The Court restates its previous admonitions, despite their apparent lack of effectiveness, that
the parties give concerted consideration to the Court’s rulings on the RFAs to date, engage in good

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faith meet and confer efforts at the highest levels, and resolve any remaining disputes as to RFA

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responses without further Court intervention. If and only if those efforts are unsuccessful will the

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Court hold the telephonic hearing on May 2 as referenced in ECF 316.

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SO ORDERED.

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Dated: May 1, 2018

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SUSAN VAN KEULEN
United States Magistrate Judge

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