Scott v. City and County of Denver, The

Filing 93

MINUTE ORDER granting 91 Plaintiff's Unopposed Motion for Leave to File Reply Brief in Support of Motion to Deem Requests for Admission Admitted or, in the Alternative, to Compel Responses Motion for Leave. By Magistrate Judge Boyd N. Boland on 1/9/12. (Attachments: # 1 Reply Brief)(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00053-MSK-BNB
MAJOR JON MICHAEL SCOTT;
Plaintiff,
v.
CITY & COUNTY OF DENVER,
Defendant.

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DEEM REQUESTS FOR
ADMISSION ADMITTED OR, IN THE ALTERNATIVE, TO COMPEL RESPONSES

Plaintiff, by and through his undersigned counsel, hereby respectfully submits his Reply
Brief in Support of Motion to Deem Requests for Admission Admitted Or, In the Alternative, to
Compel Responses.
Any Objections Not Raised in Defendant’s Original Responses are Waived
1.

Plaintiff propounded his First Requests for Admission to Defendant on November

2, 2012. Defendant responded on December 3, 2012. Robertson Decl. (Doc. 60-1), Ex. 1.
2.

On December 7, 2012, Plaintiff moved pursuant to Fed. R. Civ. P. 36(a)(6) to

deem the first 19 requests for admission (“RFAs”) admitted or to compel responses. Doc. 60.
3.

On January 7, 2013, Defendant filed its response to this motion, Doc. 87, as well

as amended responses to Plaintiff’s first 19 RFAs. Defendant’s amended responses contained
defenses that were not raised in Defendant’s original responses to RFAs. Compare Robertson
Decl. (Doc. 60-1), Ex. 1 with Doc. 87-2. Most notably, Defendant now objects -- for the first

time -- that RFAs 1 through 18 call for legal conclusions; Defendant’s original responses
contained no such objections.
4.

Rule 36(a)(3) provides that responses or objections to RFAs must be filed within

30 days. Although Rule 36 -- unlike Rule 33 governing interrogatories -- does not contain a
provision expressly waiving objections not raised within 30 days, many courts have held that it is
appropriate to recognize such a waiver. See, e.g., Apple, Inc. v. Samsung Elecs. Co., Ltd., 2012
WL 952254, at *2 (N.D. Cal. Mar. 20, 2012) (holding that objections to RFAs not raised in a
timely response were waived); Wagner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 423
(N.D. W.Va. 2006) (holding that “arguments against a request for admission not first raised in a
timely objection are waived, unless the objecting party can show good cause for the failure.”);
Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 1992 WL 394425, at *4 (E.D. Pa. Dec. 28,
1992) (holding that objections to RFAs not raised in original response were waived).
5.

Similarly, this court has held that it is appropriate to read such a waiver into Rule

34, which -- like Rule 36 at issue here -- does not contain an express waiver provision. Pham v.
Hartford Fire Ins. Co., 193 F.R.D. 659, 661-62 (D. Colo. 2000) (citing Deal v. Lutheran Hosps.
& Homes,127 F.R.D. 166, 168 (D. Alaska 1989) for the proposition that “procedures respecting
failures to assert timely objections should be similar under Fed. R. Civ. P. 33 (interrogatories), 34
(production requests), 36 (admission requests), and 45(d)(1) (subpoenas to produce documents)).
6.

Any objections not raised by Defendant in its original December 2, 2012

responses to RFAs -- specifically, the new objections that certain RFAs call for legal conclusions
-- were waived and should not be considered by the Court in evaluating Defendant’s response to
Plaintiff’s motion.
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Defendant’s “Legal Conclusion” Objection Is Meritless
7.

Should this Court hold that Defendant has not waived objections raised for the

first time in its amended responses, Plaintiff respectfully submits that the new “legal conclusion”
objection in RFA No. 1 should be overruled.1
8.

The Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”)

both define “disability” as a “physical or mental impairment that substantially limits one or more
major life activities.” 42 U.S.C. § 12102(1)(A) (ADA); 29 U.S.C. § 705(9)(B) (RA;
incorporating by reference § 12102).
9.

Plaintiff’s RFA No. 1 asks Defendant to admit that “Major Jon Michael Scott is

substantially limited in the major life activity of hearing.” Doc. 87-2 at 1.
10.

Rule 36 permits a party to serve requests to admit “facts, the application of law to

fact, or opinions about either.” Fed. R. Civ. P. 36(a)(1)(A). The rule was amended in 1970
specifically to eliminate a prior restriction to questions of fact. Advisory Committee Notes, 1970
Amendment. “An admission of a matter involving the application of law to fact may, in a given
case, even more clearly narrow the issues. For example, an admission that an employee acted in
the scope of his employment may remove a major issue from the trial.” Id.
11.

Defendant objects that RFA No. 1 “improperly seeks the truth of a legal

conclusion.” Doc. 87-2 at 1; see also Doc. 87 at 5-6. To the contrary, the Tenth Circuit has held
that, “whether [an] impairment substantially limits a major life activity is ordinarily a question of
fact for the jury.” Sanchez v. Vilsack, 695 F.3d 1174, 1178 (10th Cir. 2012). “Hearing” is

1

Defendant raises “legal conclusion” objections to RFA Nos. 2 through 18, but
does not rely on them in its response brief. See Doc. 87 at 6-8.
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defined in the statute as a “major life activity.” 42 U.S.C. § 12102(2)(A). Requesting Defendant
to admit that Mr. Scott is substantially impaired in the major life activity of hearing is a purely
factual question or at most an application of law (section 12102) to fact (Mr. Scott’s hearing
loss).
12.

“As a general rule, ‘[r]equests for admission . . . are not objectionable even if they

require opinions or conclusions of law, as long as the legal conclusions relate to the facts of the
case.’” Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 3171768, at *5
(D. Kan. Oct. 29, 2007) (internal citations omitted). Reichenbach v. City of Columbus, 2006 WL
143552 (S.D. Ohio Jan. 19, 2006), provides an instructive contrast. The plaintiffs in that case
had asked the defendants to admit that it was not in compliance with 28 C.F.R. § 35.150(d), the
ADA regulation requiring development of a transition plan. Id. at *2. The court held that this
required a legal conclusion, but that it would not have called for an improper legal conclusion to
ask the defendants to admit that they “adopted a transition plan within six months of January 26,
1992, as required by 28 C.F.R. 35.150(d)(1).” Id., at *2 n.3.
13.

RFA No. 1 in the present case resembles the approved language in Reichenbach:

it requests a factual admission, using language drawn from the statute.
14.

The cases on which Defendant relies address RFAs that are purely legal; they are

thus inapposite. In Disability Rights Council of Greater Washington v. Washington Metropolitan
Area Transit Authority, 234 F.R.D. 1 (D.D.C. 2006), for example, the requests in question asked
the plaintiff to admit that there was no provision of the ADA or related statutes that applied to its
claims and that these statutes did not require certain measures. Id. at 2-3. These were raw legal
conclusions, with no reference to the facts in the case. Similarly, in Cunningham v. Standard

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Insurance Co., 2008 WL 2247860 (D. Colo. May 29, 2008), the plaintiff asked the defendant
insurance company to admit to its “legal obligations and duties relating to reasonable standards”
for certain generic measures in the insurance business. Id. at *3. The court concluded that
“[a]lthough Rule 36 allows a request for admission regarding the application of law to fact, it
does not permit requests for admissions related to legal conclusions that are not applied to any
particular facts of a case.” Id.; see also id. at *4 (rejecting other RFAs on the grounds that “the
questions [were] not contextualized by the particular facts of this action.”).
15.

In contrast, again, RFA No. 1 asks a highly factually contextualized question

about Mr. Scott’s hearing loss. It is thus appropriate under Rule 36(a)(1)(A), and Defendant’s
legal conclusion objection should be overruled.
CONCLUSION
For the reasons set forth above and in Plaintiff’s motion, Doc. 60, Plaintiff respectfully
requests that his RFAs 1 through 19 be deemed admitted or, in the alternative, that Defendant be
required to admit or deny them.

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Respectfully submitted,

/s/ Amy F. Robertson
Amy F. Robertson
Fox & Robertson, P.C.
104 Broadway, Suite 400
Denver, CO 80203
303.595.9700 (voice)
303.595.9705 (fax)
[e-mail]

Carrie Ann Lucas
The Center for Rights of Parents with
Disabilities
P.O. Box 756
Windsor, CO 80550
720.363.1131 (voice)
970.818.9295 (fax)
[e-mail]

Attorneys for Plaintiff
Dated: January 9, 2013

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