Riley v. JP Morgan Chase Bank N.A.
ORDER by Magistrate Judge Boyd N. Boland on 3/4/14. Plaintiff's Motion and Memorandum of Law in Support of Motion for Withdrawal of Admissions 54 is DENIED. (Simmons, B.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 12-cv-00821-RM-BNB
JPMORGAN CHASE BANK, N.A.,
This matter arises on Plaintiff’s Motion and Memorandum of Law in Support of
Motion for Withdrawal of Admissions [Doc. #54, filed 11/13/2013] (the “Motion”). The
Motion is DENIED.
On June 20, 2013, the defendant served its First Set of Written Discovery Requests,
including requests for admission. The plaintiff’s responses were originally due on or before July
20, 2013. Prior to that deadline, the plaintiff contacted defendant’s counsel by phone and
requested an extension of time until July 26, 2013, to serve her responses. Defendant’s counsel
agreed to the extension. However, the plaintiff did not serve her responses. On August 21,
2013, the plaintiff filed “Plaintiff’s Emergency Request for Continuance and Stay on All
Discovery, or in the Alternative, Motion for Extension of at Least Five Days to Respond to
Defendant’s Discovery Requests Due to Family Health Related Emergency” [Doc. #45]. On
August 26, 2013, I granted the plaintiff an additional five days to respond to the defendant’s
discovery requests [Doc. #47]. The plaintiff again failed to serve responses to the defendant’s
discovery requests. Instead, she filed the instant Motion--two and a half months after the
extended deadline--seeking to “withdraw” the deemed admissions.
The plaintiff is proceeding pro se, and I must liberally construe her pleadings. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). Pro se litigants must comply with the fundamental
requirements of the Federal Rules of Civil Procedure, however. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
Rule 36, Fed. R. Civ. P., provides that “[a] party may serve on any other party a written
request to admit, for purposes of the pending action only, the truth of any matters within the
scope of Rule 26(b)(1) relating to (A) facts, the application of law to fact, or opinions about
either; or (B) the genuineness of any described documents.” Fed. R. Civ. P. 36(a)(1). “A matter
is admitted unless, within 30 days after being served, the party to whom the request is directed
serves on the requesting party a written answer or objection addressed to the matter and signed
by the party or its attorney.” Id. at 36(a)(3). Because the plaintiff failed to respond to the
defendant’s Requests for Admissions within 30 days, they are deemed admitted.
Once a matter is admitted, it “is conclusively established unless the court on motion
permits withdrawal or amendment of the admission.” Fed. R. Civ. P. 36(b). “The court may
permit 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.
Here, the defendant has filed a motion for summary judgment relying on the plaintiff’s
admissions. In her opposition brief, the plaintiff does not provide any evidence to support her
claims.1 The plaintiff has made no showing that withdrawing her admissions would advance the
presentation of merits of her case. In addition, after the plaintiff’s repeated failure to respond to
its discovery requests, the defendant made a decision to forego further discovery attempts, rely
on the admissions, and file a motion for summary judgment. Because the defendant’s litigation
strategy was based on the belief that certain matters were established conclusively, withdrawal of
the admissions at this stage of the litigation would severely prejudice the defendant. Allsopp v.
Aklyama, Inc., Civil Action No. 09-cv-00063-WYD-KMT, 2010 WL 1258006 at *2 (D.Colo.
March 26, 2010) (rejecting defendant’s attempt to withdraw its admissions where defendant was
unrepresented at the time it failed to respond to the requests for admissions; discovery was
closed; plaintiff’s summary judgment motion was pending; and plaintiff relied on the admissions
in making decisions about the scope and necessity of discovery).
IT IS ORDERED that Plaintiff’s Motion and Memorandum of Law in Support of Motion
for Withdrawal of Admissions [Doc. #54] is DENIED.
Dated March 4, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
Moreover, the allegations of the Complaint are not evidence because, although the
Complaint is titled “Verified Complaint,” its allegations are unsworn and are not subscribed by
the plaintiff as true under penalty of perjury pursuant to 28 U.S.C. § 1746.
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