USA v. Pearson

Filing 16

REPORT AND RECOMMENDATIONS re 13 MOTION for Summary Judgment filed by USA. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 4/5/2012. Signed by Judge Mary Pat Thynge on 3/19/2012. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA,
Plaintiff,
v.
JEFFRY S. PEARSON,
Defendant.

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C. A. No.: 10-442-LPS/MPT

REPORT AND RECOMMENDATION
I. Introduction
Plaintiff United States (“Government”) initiated this action seeking judgment
against pro se defendant Jeffry Pearson (“Pearson”), in the amount of $93,444.28 for
student loans and interest payments on which Pearson allegedly defaulted.1
Pearson answered denying all allegations by the Government, and asserted
affirmative defenses.2 The Government moved for summary judgment in its favor.3
Pearson filed an objection to the Government’s motion, requesting the court deny the
motion as being filed in violation of the scheduling order.4 He further requests, in the
alternative, additional time to respond to the motion on the merits.5
II. Background

1

D.I. 1.
D.I. 5. Pearson asserted the following affirmative defenses: 1. Claims are barred in whole or in
part by the defense of payment; 2. Claims are barred in whole or in part by the provisions of any
promissory notes allegedly signed by defendant; 3. Claims for interest and/or collection fees are barred or
limited by statute; and 4. Claims are barred in whole or in part by the provisions of a forbearance believed
to have been granted to defendant.
3
D.I. 13.
4
D.I. 14.
5
D.I. 14.
2

A. Procedural History
On May 27, 2010, the Government filed a complaint seeking judgment against
Pearson for student loans and interest payments totaling $ 93,444.28, as well as
prejudgment interest accruing from April 10, 2010 until the loans are paid in full, plus
post judgment interest, costs and other proper relief. On August 18, 2010, Pearson
denied all allegations, and raised the affirmative defenses previously noted herein.
On September 27, 2010, the Government served its disclosures under to FED. R.
CIV. P. 26. Pearson failed to provide his disclosures. Thereafter, the Government
served requests for admission, interrogatories, and requests for production of
documents on December 10, 2010.6
By the expiration of the thirty day time period to respond to written discovery,
Pearson had failed to answer any of the Government’s propounded discovery. On
January 28, 2011, the Government notified Pearson, that his failure to respond to its
requests for admission meant all matters asserted therein were admitted, and also
asked him to stipulate to entry of judgment in its favor. Again, Pearson never
responded.
The Government moved for summary judgment on September 7, 2011. Pearson
objected to the Government’s motion asserting the motion violated paragraph 7 of the
Scheduling Order which provides for case dispositive motions to be filed by April 15,
2011, a date from which the Government did not seek an extension. Pearson asks the
court to disallow the Government’s motion, or alternatively, requests additional time to

6

D.I. 12 at 1.

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respond on the merits.
B. Factual History
Pearson, an attorney representing himself, executed a promissory note on
August 5, 1982 to secure a $600 loan at 5% interest per annum under the federally
funded National Defense/Direct Student Loan program.7 After demanding payment of
the loan pursuant to terms of the note, the Institution declared the loan in default on or
about November 11, 1987. According to a certification from the federal Department of
Education (“Department”), the total debt due on this loan was $656.60 as of April 12,
2010.
On May 15, 2000, Pearson executed a second promissory note to secure a
Direct Consolidated Loan from the Department. The Department distributed two
payments of $34,043.63 and $23,843.18, on June 5, 2000 at an 8% annual interest
rate. The Department subsequently demanded payment, and on November 10, 2008,
declared the obligation in default. A certification from the Department confirms the
amount due on this loan was $92,787.58 as of April 12, 2010.
Accordingly, Pearson owes a combined total amount of $93,444.28 for defaulting
on both loans.8
III. Analysis
A. Legal Standard
Motion for Summary Judgment

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This program is authorized under Title IV-E of the Higher Education Act of 1965, as amended.
Virginia Polytechnic Institute and State University (the “Institute”) administered the loan.
8
D.I. 1, Ex. A and B.

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Summary Judgment is appropriate if the “pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and the movant is entitled to a judgment as a matter of law.”9 Once there
has been adequate time for discovery, Rule 56(c) mandates judgment against the party
who “fails to make a sufficient showing to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial.”10 When a party fails to make such a showing, “there can be no ‘genuine issue as
to any material fact’ since a complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts immaterial.”11 The
moving party is therefore entitled to judgment as a matter of law because “the
nonmoving party has failed to make a sufficient showing on an essential element of [his]
case with respect to which [he] has the burden of proof.”12 A dispute of material fact
exists where “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.”13
The moving party bears the initial burden of identifying portions of the record
which demonstrate the absence of a genuine issue of material fact.14 However, a party
may move for summary judgment with or without supporting affidavits.15 Therefore, “the
burden on the moving party may be discharged by ‘showing’ – that is, pointing out to the
district court – that there is an absence of evidence supporting the nonmoving party’s

9

FED. R. CIV. P. 56(c)(2).
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
11
Id. at 323.
12
Id.
13
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
14
Celotex, 477 U.S. at 323.
15
Id.
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case.”16
If the moving party has demonstrated an absence of material fact, the nonmoving
party must then “come forward with specific facts showing that there is a genuine issue
for trial.”17 If the nonmoving party bears the burden of proof at trial, he “must go beyond
the pleadings in order to survive a motion for summary judgment.”18 That party “may
not rest upon the mere allegations or denials of his pleadings, but must set forth specific
facts showing that there is a genuine issue for trial.”19 At the summary judgment stage,
the court is not to “weigh the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue for trial.”20 Further, “there is no issue for
trial unless there is sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party.”21 The threshold inquiry, therefore, is “determining whether there
is a need for trial – whether, in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.”22
B. Position of the Parties.
Pearson’s answer denies all allegations asserted by the Government, raised a
number of affirmative defenses, and requests the court dismiss the complaint. In
response to the Government’s motion for summary judgment, Pearson avers the motion
is untimely under the Scheduling Order because the Government filed its motion almost

16

Id. at 325.
FED. R. CIV. P. 56(c).
18
Yeager’s Fuel v. Pennsylvania Power & Light Co., 22 F.3d 1260, 1273 (3d Cir. 1994).
19
Anderson, 477 U.S. at 248.
20
Id. at 249.
21
Id.
22
Id. at 250.
17

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five months after the deadline and never requested an extension. According to
Pearson, the Government provided no explanation for its noncompliance. As a result,
he requests the motion be disallowed, or alternatively, additional time to respond to the
motion on the merits.
The Government contends by failing to respond to its requests for admission,
Pearson has admitted he defaulted on loans, and summary judgment should be granted
because there are no disputed material facts on the record.
C. Effect of Failure to Respond to Requests for Admission.
Pursuant to Rule 36, a party may serve a written request upon another party for
admission of the truth of any matters relating to facts, the application of law to fact, or
opinions about either.23 Moreover, Rule 36(a)(3) states “[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.” Regardless of the potential harshness of the result for
failing to respond to Rule 36 discovery, the conclusive effect of requests for admission
applies equally to those admissions made affirmatively and those established by default
as a result of a party’s neglect to respond.24 The Third Circuit has held such admissions
under Rule 36 are sufficient to support entry of summary judgment.25 Since Rule 36 is
self-executing, the party relying on an admission by default need do nothing to establish

23

FED. R. CIV. P. 36(a)(1)(A).
Am. Auto. Ass’n, Inc., v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1120 (5th
Cir. 1991).
25
Anchorage Associates v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 178 (3d Cir. 1990);
See also Lucas v. Higher Education Assistance Found.,124 B.R. 57, 58 (Bankr. N.D. Oh. 1991) (failure to
respond to request for admission allows entry of summary judgment if facts deemed admitted are
dispositive).
24

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the admission.26
The Government served requests for admission on Pearson on December 10,
2010. Pearson failed to respond to the requests. Subsequently, on January 28, 2011,
the Government informed Pearson by letter, that by failing to respond he had admitted
all matters asserted in the requests. Pearson never commented, objected, disagreed or
responded to the Government’s position.
Pearson’s repeated failure to respond to any discovery propounded by the
Government, in particular, its requests for admission, conclusively establishes the
Government’s claim. Specifically, by not responding to the requests for admission, he
has admitted to defaulting on the loans in the manner and amount alleged in the
complaint.
D. Applicability of Rule 36 (b)
Under Rule 36(b), any matter admitted is conclusively established unless the
court, on motion, permits the admission to be withdraw or amended.27 Rule 36(b) sets
forth a party’s process for relief from an admission.28 Because the language of the rule
is permissive, the court is not required, but rather has discretion, to provide relief from
the effects of Rule 36(a)(3).29 The court may grant relief in cases of default if the
requests are manifestly improper,30 or are intentionally used to gain an unfair

26

Drennen v. Sentinel Real Estate Corp., CV-04-0802-PHX-DGC, 2005 WL 3369466, *1 (D. Ariz.
Dec. 9 2005)
27
FED. R. CIV. P. 36(b).
28
Drennen, 2005 WL 3369466 at *1; see also United States v. Kasuboski, 834 F. 2d 1345, 1350
(7th Cir. 1987) (the proper procedural vehicle to attempt to withdraw admission is through a motion under
rule 36(b)).
29
Lucas, 124 B.R. at 58.
30
Williams v. Krieger, 61 F.R.D. 142, 144 (S.D. N.Y. 1973).

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advantage, and thereby cause a party to admit essential elements of a claim or
defense.31 A request for admission is improper if it requests admissions of law.32
Pearson could have sought relief by filing a Rule 36(b) motion to amend or
withdraw his admissions. No such motion was filed, nor has he requested leave to file
such a motion. The only leave requested by him is additional time to file a brief. That
request suggests he intends to ignore his admissions and dispute the Government’s
facts established by his failure to respond to its discovery–in other words, circumvent
his obligations to appropriately respond to the Government’s outstanding discovery.
In determining whether relief from Rule 36(a) is appropriate, a court considers
whether the party seeking relief has a reasonable excuse and must assess prejudice to
the opposing party,33 and whether the presentation of the merits will be aided.34 Even
considering those factors, no relief from the effect of Rule 36 is warranted. Pearson has
provided no excuse for failing to respond to any discovery propounded by the
Government, nor has he ever requested relief from the court in that regard. His
solution, filing a brief on the merits, prejudices the Government by denying it the
information sought in its outstanding discovery as well as any additional discovery, such
as depositions, that could reasonably flow from his original responses.35 Further
briefing is unnecessary since the relevant facts have been admitted.
Moreover, the Government’s requests for admissions were not manifestly

31

Perez v. Miami-Dade Country, 297 F.3d 1255, 1268 (11th Cir. 2002).
Williams, 61 F.R.D. at 144.
33
Brust v. Industrial Bank of Commerce, 18 F.R.D. 90, 91 (S.D. N.Y. 1955); Melody Tours, Inc. v.
Granville Market Letter, Inc., 413 So.2d 450, 451 (Fla. Dist. Ct. App. 5th Dist. 1982); Coolik v. Hawk, 212
S.E.2d 7, 8 (1974).
34
In re S.W. Bach & Co., 09-01278(MG), 2010 WL 681000, *2 (Bankr. S.D.N.Y Feb. 24, 2010).
35
See D.I. 6. Under the Scheduling Order, all discovery was to be completed by March 31, 2011.
32

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improper. As evidenced by exhibit 1 to the Government’s opening brief,36 the requests
were for admissions of facts, addressed matters separately stated, and did not request
admissions of law. In separate requests, Pearson was asked to admit or deny that he
executed a promissary note in August 1982 to secure loans from the Institute totaling
$600 at 5% per annum; the Institution made the loans to the him; those loans were
made under the federally-funded National Defense/Direct Student loan program; his
payment obligation for the Institute’s loans was declared in default as a result of his
failure to pay consistent with the terms of the note; he later executed another
promissory note around May 15, 2000 securing a loan from the Department; this loan
was disbursed two amounts, $34,043.63 and $23,843.18 at 8% per annum; and he
defaulted on his payment obligation on the subsequent loan on or about November 10,
2008. Such requests are consistent with Rule 36(a)(1).
Within the thirty day period following the service of those requests, Pearson was
required to admit or deny or state in detail why he could not truthfully admit or deny
each request, with any denial required to “fairly respond to the substance of the
matter.”37 Further Pearson was also obligated in good faith to admit in part and deny in
part in when his response was qualified.
The two-fold purpose of Rule 36, designed to reduce trial time, is facilitating proof
regarding those issues that cannot be eliminated and narrowing issues that can be
eliminated.38 Pearson’s conduct and proposed approach contravenes those objectives.

36

D.I. 12.
FED. R. CIV. P. 36(a)(4).
38
Rule 36, ADVISORY NOTES.
37

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Pearson failed to timely respond to the requests for admission or seek relief
pursuant to the Federal Rules of Civil Procedure to excuse his delinquency. Therefore,
the requests are admitted.39 Since Pearson admitted the relevant facts proving the
Government’s case, no genuine issue of material fact exists. Thus, no factual issue
remains for trial, and judgment is warranted against him for his default on the loans
along with the accumulated and accruing interest until full payment is made.
E. Pearson’s Status as a Pro Se Litigant.
Historically, courts have noted that “[a] pro se complainant . . . must be held to
less stringent standards than formal pleadings drafted by lawyers.”40 However, a pro se
litigant, who is also an attorney, is not afforded the latitude ordinarily accorded to the
typical pro se claimant.41 “If clients may be held liable for their attorney’s failure to meet
deadlines and comport procedurally, then an attorney representing [himself] should
similarly be held accountable for missing deadlines.”42 Proceeding as a pro se litigant
does not give a party the right to “flagrantly disregard the Federal Rules of Civil
Procedure in an effort to manipulate rulings in his favor.”43
Although Pearson is proceeding pro se, he is not entitled to the same leniency
afforded non-lawyer pro se litigants. As an attorney, he is subject to a higher standard,
and has provided no basis for his failures to abide by the court’s scheduling order, the

39

See Lewis v. Williams, C.A. No. 05-013-GMS, 2010 WL 2640188, *3 (D.Del. June 30, 2010).
Ning Ye v. Holder, 644 F. Supp. 2d 112, 116 (D. D.C. 2009) (quoting Erickson v. Pardus, 551
U.S. 89, 94 (2007).
41
Ning Ye, 644 F. Supp. 2d at 116.
42
In re Morgan, No. 09-16188, 2010 WL 2594823, *3 (Bankr. S.D.Fla. June 17, 2010).
43
Lewis, 2010 WL 2640188 at *3.
40

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Federal Rules of Civil Procedure or this court’s local rules before the threat of possible
dismissal through the Government’s motion. His past behavior demonstrates a choice
to essentially ignore this matter, absent filing an answer and purported response to the
Government’s motion for summary judgment; thus, his eleventh hour argument is
disingenuous, particularly in light of his own dilatory conduct.
IV. Order and Recommended Disposition
For the reasons stated herein, this court recommends that:
(1) Pearson’s request (D.I. 14) to dismiss the Government’s motion for summary
judgment or for additional time to respond to that motion be denied.
(2) The Government’s motion for summary judgment (D.I.13) be granted,
including entry of judgment against Pearson in the amount of $93,444.28 for principal
and interest on the defaulted loans, plus additional prejudgment interest accruing from
April 12, 2010 until judgment is paid, plus post judgment interest at the legal rate and
costs.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B),
FED. R. CIV. P. 72(b)(1), and D. DEL. LR 72.1. The parties may serve and file specific
written objections within fourteen (14) days after being served with a copy of this Report
and Recommendation.44 The objections and responses to the objections are limited to
ten (10) pages each.
The parties are directed to the Court’s standing Order in Pro Se matters for
Objections filed under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is

44

FED. R. CIV. P. 72(b).

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available on the Court’s website, www.ded.uscourts.gov.

Date: March 19, 2012

/s/ Mary Pat Thynge
United States Magistrate Judge

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