Hicks v. Pezold Management Associates Inc

Filing 11

ORDER finding as moot 2 Motion to Compel; granting 4 Motion to Withdraw Document. If Plaintiff has not already responded to Defendant's first set of requests for admission, she shall do so on or before January 28, 2011. Ordered by Judge Clay D. Land on 12/30/2010. (CGC)

Hicks v. Pezold Management Associates Inc

Doc. 11

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MELODY HICKS, Plaintiff, vs. * * * CASE NO. 4:10-CV-142 (CDL) PEZOLD MANAGEMENT, INC., d/b/a * McDONALD'S RESTAURANT NO. 31925, a/k/a McDONALD'S, * Defendants. *

ORDER Plaintiff Melody Hicks ("Hicks") alleges that she was injured when she slipped and fell at Defendant Pezold Management Associates, Inc.'s ("PMA") McDonald's restaurant. Hicks originally filed this

action in the State Court of Muscogee County, Georgia, and the parties had some discovery disputes while the case was pending in state court. PMA filed a motion to compel Hicks's discovery The state

responses, and Hicks moved to withdraw her admissions. court apparently did not rule on those motions.

While the motions

were pending, PMA received discovery responses from Hicks and removed the action to this Court based on those discovery responses. discovery motions are now pending in this Court. The

For the reasons set

forth below, the Court denies as moot PMA's Motion to Compel (ECF No. 2) and grants Hicks's Motion to Withdraw Admissions (ECF No. 4).

Dockets.Justia.com

FACTUAL BACKGROUND On June 11, 2010, PMA propounded its first set of

interrogatories, first set of requests for production, and first set of requests for admission on Hicks. As of July 21, 2010, Hicks had

not responded to any of PMA's discovery requests, and PMA's attorney, Mr. Jason Baird, sent Hicks's attorney, Mr. Steven Gardner, a letter seeking to obtain the discovery responses. Def.'s Mot. to Compel Ex.

5, Letter from J. Baird to S. Gardner, July 21, 2010, ECF No. 2 at 43. Mr. Baird also notified Mr. Gardner that, under Georgia law, the Id.; see also O.C.G.A.

requests for admission were deemed admitted.

§ 9-11-36(a)(2) (stating that a matter of which an admission is requested "is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney"); accord Fed. R. Civ. P. 36(a)(3) (same). At some point after Hicks's Complaint was filed but before PMA served its discovery requests on Hicks in June 2010, Mr. Gardner began to suffer from a debilitating medical condition called

bilateral tendon dystrophy.

Pl.'s Resp. to Def.'s Mot. to Compel Ex.

1, Gardner Aff. ¶¶ 3-4 , ECF No. 3 at 6-8 [hereinafter Gardner Aff.]; accord Pl.'s Resp. to Def.'s Mot. to Compel Ex. 2 2, Return to

Work/School Form, ECF No. 3 at 9 (stating that Mr. Gardner had been under Dr. Gregory Alvarez's care since "6 2010" and that Mr. Gardner could not return to work as of September 23, 2010). The condition

advanced quickly, and Mr. Gardner, a solo practitioner, became unable to work, concentrate, or walk. Gardner Aff. ¶¶ 4-5. Mr. Gardner

ultimately had surgery on July 22, 2010, followed by a lengthy recuperation period during which he was on medication and could not work. Id. ¶¶ 6-7. Mr. Gardner returned to work on a part-time basis

in early October 2010, and he learned of PMA's discovery requests. Id. ¶ 8. Mr. Gardner claims that, due to the severity of his condition and the lack of support staff, he was unable to file a medical leave of absence. Id. ¶ 7. Mr. Gardner did, however, hire a non-lawyer,

James White, to communicate with Mr. Baird and to provide Mr. Baird with updates on Mr. Gardner's medical condition. Pl.'s Resp. to

Def.'s Mot. to Compel 2, ECF No. 3; accord Def.'s Reply In Supp. of Mot. to Compel Ex. 1, Baird Aff. ¶ 5, ECF No. 7 at 6-7 [hereinafter Baird Aff.]. Mr. White spoke with Mr. Baird on August 16, 2010, and

Mr. Baird agreed to extend the deadline for Hicks's interrogatory responses and document production. Baird Aff. ¶ 5. Mr. White

believes that Mr. Baird agreed to permit Hicks to withdraw the deemed admissions. Pl.'s Resp. to Def.'s Mot. to Compel Ex. 3, White Aff. According to Mr. Baird, however, Mr. Baird 3

¶ 5, ECF No. 3 at 10-11.

told Mr. White that he would not agree to withdraw Hicks's deemed admissions. Id. Mr. Baird understood from Mr. White that Mr. Id. Mr.

Gardner was expected to return to work "within the month."

White contacted Mr. Baird again on September 16, 2010, and Mr. White advised Mr. Baird that Mr. Gardner would be back at work "within two weeks." Id. ¶ 6.

As of October 6, 2010, Hicks had still not responded to any of PMA's discovery requests, and PMA filed its Motion to Compel. generally Def.'s Mot. to Compel, ECF NO. 2. See

PMA reiterated in its

motion that the matters for which PMA requested admissions in its first set of requests for admission were deemed admitted under O.C.G.A. § 9-11-36(a)(2). Id. at 1. On October 20, 2010, Hicks

responded to the Motion to Compel and also filed her Motion to Withdraw Admissions. Pl.'s Resp. to Def.'s Mot. to Compel, ECF No. 3; Pl.'s Mot. to Withdraw Admissions, ECF No. 4. Hicks represented in

her response to PMA's Motion to Compel that her responses to PMA's interrogatories and document requests were attached to the Motion to Compel response. Pl.'s Resp. to Def.'s Mot. to Compel 2, ECF No. 3.

In its reply brief, PMA did not deny that it received responses to its interrogatories and document requests. See generally Def.'s

Reply In Supp. of Mot. to Compel, ECF No. 7 at 1-3.

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DISCUSSION I. PMA's Motion to Compel As discussed above, Hicks represented that she responded to PMA's interrogatories and document requests. And, as discussed

above, PMA does not appear to dispute that Hicks responded to its interrogatories and document requests. centers on Hicks's request to Rather, the parties' dispute the deemed admissions. PMA

withdraw

Accordingly, the Court denies PMA's Motion to Compel as moot.

shall, however, be permitted to renew its Motion to Compel if PMA did not receive adequate responses to its interrogatories and document requests. II. Hicks's Motion to Withdraw Admissions Under O.C.G.A. § 9-11-36(a)(2), a matter of which an admission is requested "is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney." permit withdrawal or amendment [of an The Court "may when the

admission]

presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits." O.C.G.A. § 9-11-36(b); accord Fed. 5

R.

Civ.

P.

36(b).

This

determination

is

within

the

Court's

discretion. 822 (1994).

Rowland v. Tsay, 213 Ga. App. 679, 679, 445 S.E.2d 822,

The Court finds that withdrawal of the admissions will promote the presentation of the case on the merits, seriously claim otherwise. and PMA does not

As discussed in more detail below, the

crux of PMA's opposition to Hicks's Motion to Withdraw focuses on the legitimacy of Mr. Gardner's excuse for failing to respond to the requests for admissions and has little to do with the question whether permitting withdrawal of the admissions will promote the presentation of the merits of the case. Here, the requested

admissions are essentially the opposite of the allegations in Hicks's Complaint and her interrogatory responses. For example, PMA asks

Hicks to admit that she saw the foreign substance on the floor of the McDonald's before she slipped, that the foreign substance was clearly visible and open and obvious, and that her suit is barred by Def.'s Mot. to Compel Ex. Yet, in her

contributory and comparative negligence.

4, Def.'s Reqs. for Admis. ¶¶ 2-9, ECF No. 2 at 37-38.

Complaint, Hicks alleged that she slipped and fell on a "slippery foreign substance," that PMA's employees knew or should have known of the hazardous condition of its floor but failed to put out "wet floor" signs, and that Hicks "conducted herself with all the caution and care required by law." Compl. ¶¶ 5, 7-9; accord Notice of 6

Removal Ex. 3, Pl.'s Resps. to Def.'s 1st Set of Interrogs. ¶¶ 16-19, ECF No. 1-4 at 21. For these reasons, the Court concludes that

withdrawal of the admissions will promote the presentation of the case on the merits. The Court also finds that PMA has not demonstrated that the withdrawal of the deemed admissions will prejudice it in maintaining its defense on the merits. PMA suggests that Mr. Gardner is lying

about his medical condition so that the Court will excuse his delay in responding to the requests for admission. supported this Even if the evidence

suggestion--which it does not--it is difficult to

discern what prejudice PMA will suffer if Hicks is permitted to withdraw the deemed admissions. Nothing in the present record

establishes that PMA relied to its detriment on the deemed admissions in preparing its defense. "Merely being deprived of judgment or

being forced to go to trial is not such prejudice as will prevent withdrawal of admissions." Rowland, 213 Ga. App. at 680, 445 S.E.2d at 823 (internal quotation marks omitted). At most, PMA could be

deprived of a tactical advantage if the Court were to deny Hicks's Motion to Withdraw, but "the purpose of requests for admission is to expedite trial and clarify the issues in a case, not to gain a tactical advantage over opposing counsel." Id. at 679 n.2, 445 S.E.2d 822, 822 n.2.

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Furthermore, the evidence does not establish that Mr. Gardner lied about his medical condition. PMA asserts that Hicks's reason

for failing to provide a timely response to PMA's requests for admission is that "her attorney underwent leg surgery on July 22, 2010." No. 5. Def.'s Resp. to Pl.'s Mot. to Withdraw Admissions 2 ¶ 3, ECF PMA also notes that the July 22, 2010 surgery was performed

"approximately 41 days after PMA served its requests for admissions" on Hicks. Id. Thus, PMA argues, Hicks's "responses to PMA's

requests for admissions were already overdue" when Mr. Gardner underwent the surgery. Id. However, PMA ignores the evidence that

Mr. Gardner began experiencing serious symptoms of bilateral tendon dystrophy and became unable to work before PMA's requests for Based on the

admission were served on Hicks.

Gardner Aff. ¶¶ 3-4.

evidence before the Court, Mr. Gardner had a reasonable excuse for failing to submit timely responses to PMA's requests for admission. Moreover, PMA's attorney knew that Hicks had not responded to PMA's discovery requests, including the requests for admission, because Mr. Gardner was unable to work due to a medical condition. For all of

these reasons, the Court concludes that PMA has not demonstrated that the withdrawal of the deemed admissions will prejudice it in

maintaining its defense on the merits. Hicks's Motion to Withdraw Admissions.

The Court therefore grants

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CONCLUSION As discussed above, the Court denies as moot PMA's Motion to Compel (ECF No. 2) and grants Hicks's Motion to Withdraw Admissions (ECF No. 4). If Hicks has not already responded to PMA's first set

of requests for admission, she shall do so on or before January 28, 2011.

IT IS SO ORDERED, this 30th day of December, 2010.

S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE

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