Pisterzi Candell v. Shiftgig Bullpen Temp. Emp. Agcy et al

Filing 69

MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 1/14/2019. Mailed notice. (dm, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAULINE P. PISTERZI
CANDELL,
Plaintiff,
v.

No. 17 C 3620
Magistrate Judge Mary M. Rowland

SHIFTGIG BULLPEN TEMP.
EMP. AGENCY and ACKLAND
FINANCIAL GROUP,
Defendants.
MEMORANDUM OPINION AND ORDER
This is an action brought under the Age Discrimination in Employment Act of
1967 (ADEA) by Plaintiff Pauline P. Pisterzi Candell (“Candell”) against Defendant
Ackland Financial Group (“AFG”). 1 Candell alleges that she was employed by AFG
from August through December 2016, selling life insurance policies, and AFG discriminated against her because of her age. (Dkt. 48, Am. Compl.). The parties consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28
U.S.C. § 636(c). On December 11, 2018, AFG filed a motion for summary judgment.
(Dkt. 58). On December 25, 2018, Candell filed a motion to withdraw requests to admit and for extension of time to respond to AFG’s motion for summary judgment.

Candell and Defendant Shiftgig Bullpen have resolved their dispute. On November 30,
2018, Shiftgig was dismissed from the case with prejudice. (Dkt. 57).
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(Dkt. 62). For the reasons set forth below, Candell’s motion to withdraw requests to
admit [62] is GRANTED.
I. BACKGROUND
Candell is represented by counsel, but proceeded pro se in this case from the filing
of her original complaint in May 2017 until February 2018. (Dkts. 1, 42). On January
9, 2018, when Candell was still pro se, the Court held a hearing on Defendant Shiftgig’s, AFG’s co-defendant, motion to compel her to answer discovery. (Dkt. 31). The
Court granted the motion and ordered Candell to answer both Defendants’ discovery
requests by January 12, 2018. (Id.). On January 12, 2018, Candell answered AFG’s
First Requests to Admit. (Dkt. 35). 2 On April 13, 2018, Candell, represented by counsel and with leave of court, filed an amended complaint. AFG then served its Second
Requests to Admit and Candell answered those requests on June 26, 2018. (Dkt. 602). In July 2018, the Court stayed discovery pending the outcome of a settlement conference. (Dkt. 53). The Court then lifted the stay and later extended fact discovery
deadline to December 14, 2018. (Dkts. 54, 57).
AFG moved for summary judgment relying on (1) AFG’s First Requests to Admit
deeming them all admitted since Candell had not responded to them within the 30
days allotted in Fed. R. Civ. P. 36; (2) Candell’s answers to AFG’s First Requests to
Admit; and (3) Candell’s answers to AFG’s Second Requests to Admit. (Dkt. 59, Dkt.

Although AFG did not label them as such, for ease of reference, AFG’s first Requests to
Admit to Candell will be referred to herein as “AFG’s First Requests to Admit” or “First
RTAs” and its second Requests to Admit will be referred to as “AFG’s Second Requests to
Admit” or “Second RTAs.”

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60 at 1, n.1). After AFG filed for summary judgment, Candell moved to withdraw her
requests to admit and to extend time to respond to AFG’s motion, arguing that she
was pro se when the First Requests to Admit were served, she timely answered AFG’s
Second Requests to Admit, and granting her motion would promote the presentation
of the merits of the case. (Dkt. 62). AFG filed a response brief to Candell’s motion on
January 7, 2019, contending that Candell failed to show that withdrawing her responses would serve the merits of the case and AFG would be unfairly prejudiced
because it had already filed a summary judgment motion in reliance on the admissions. (Dkt. 66).
II. DISCUSSION
A. Standard
Federal Rule of Civil Procedure 36 governs requests for admission and states that
“[a] matter admitted under this rule is conclusively established unless the court, on
motion, permits the admission to be withdrawn or amended.” Fed. R. Civ. P. 36(b).
Withdrawal or amendment is “appropriate if it ‘would promote the presentation of
the merits of the action’ and if the party who obtained the admission will not be prejudiced by a withdrawal or amendment.” Blow v. Bijora, Inc., 855 F.3d 793, 799 (7th
Cir. 2017) (quoting Fed. R. Civ. P. 36(b)). Part (b) of Rule 36 “emphasizes the importance of having the action resolved on the merits, while at the same time assuring
each party that justified reliance on an admission in preparation for trial will not
operate to his prejudice.” Fed. R. Civ. P. 36(b), Advisory Committee Notes (1970). The

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decision about whether to allow withdrawal or amendment is a discretionary one. See
Simstad v. Scheub, 816 F.3d 893, 899 (7th Cir. 2016).
B. Analysis
1. Granting Candell’s motion promotes the presentation of the merits
Candell asserts that the merits of this case would be served by permitting her to
withdraw her admissions to AFG’s First Requests to Admit because they were made
when she was pro se. She also argues, and AFG does not contest, that her answers to
the Second Requests to Admit were timely served and consistent with both her
amended complaint and the affidavit of Mr. Andre Rodriguez (who also worked at
AFG in 2016), which she previously provided to AFG in her response to requests for
document production. AFG responds that allowing Candell to withdraw her admissions because they contradict her amended complaint would be contrary to the spirit
of Rule 36. AFG further argues that “[p]ro se litigants are held to the same standard
as those represented by counsel.” (Dkt. 66 at 3).
The parties dispute the import of Candell’s previous pro se status. The Seventh
Circuit has explained, “[t]hat courts are required to give liberal construction to pro se
pleadings is well established…However, it is also well established that pro se litigants are not excused from compliance with procedural rules.” Pearle Vision, Inc. v.
Romm, 541 F.3d 751, 758 (7th Cir. 2008) (internal citation omitted). With regard to
Rule 36 requests to admit, courts have “afford[ed] pro se litigants in particular the
opportunity to avoid the consequences of failing to respond to Rule 36(a) requests to
admit.” White v. Tanula, 2018 U.S. Dist. LEXIS 70997, at *5 (W.D. Wis. Apr. 27, 2018)
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(declining to deem matters admitted against pro se plaintiff and allowing plaintiff to
respond anew to requests to admit); see also Paymaster Corp. v. Cal. Checkwriter Co.,
1996 U.S. Dist. LEXIS 13943 at *6 (N.D. Ill. Sep. 20, 1996) (allowing pro se defendant
to withdraw default admissions and amend responses in response to plaintiff’s motion
for summary judgment).
The Court believes the circumstances of this case warrant taking Candell’s pro se
status into account in deciding this motion. This Court’s January 9, 2018 order directed Candell to respond to Defendants’ (plural) discovery requests by January 12,
2018. (Dkt. 31). She reasonably interpreted this order to apply to her answers to
AFG’s First Requests to Admit, and met this deadline. So the Court does not deem
the First Requests to Admit to be default admissions because of timeliness. Even so,
the Court would permit Candell to withdraw her responses whether the matters were
“admitted” by default or taken as substantive responses (and AFG attempts to rely
on them for both purposes in its summary judgment). Indeed, approximately four
months after receiving answers to AFG’s First Requests to Admit, AFG chose to serve
its Second Requests to Admit on Candell. The Second Requests contain 23 requests,
covering some of the same matters from AFG’s first requests. 3 Candell, represented
by counsel, timely responded to AFG’s Second Requests to Admit; some of those responses contradict matters in the First Requests to Admit. 4

Compare e.g., “AFG does not have 15 employees.” (First RTAs, ¶ 8) to “AFG did not have
20 employees at the time the Plaintiff commenced this action.” (Second RTAs, ¶ 2).
4 Compare e.g., First RTA ¶ 4, “Plaintiff was never an employee of Ackland Financial
Group”, which if deemed admitted would contradict Candell’s response denying that “Plaintiff was never an ‘employee’ of AFG within the meaning of Title VII.” (Second RTAs, ¶ 8).
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Although the Court agrees with AFG that Candell’s counsel should have filed a
motion earlier in the case to withdraw or amend the First Requests to Admit, the
harsh result requested by AFG is not justified. 5 AFG does not point to any evidence
of intentionality or bad faith by Candell or her counsel to unreasonably avoid deadlines or delay the proceedings, and the Court has not observed any. Therefore, the
merits are served by allowing Candell to withdraw the First Requests to Admit and
ordering the Second Requests to Admit to be the operative requests to admit in this
case. This result is especially warranted where, as explained below, AFG has failed
to demonstrate prejudice.
2. AFG has failed to demonstrate prejudice
The Court begins with AFG’s contention that Candell must demonstrate that AFG
would not be prejudiced by Candell withdrawing her admissions. (Dkt. 66 at 1). This
is incorrect. The law puts this burden on AFG, not Candell: “A court may permit
withdrawal of an admission if the party opposing withdrawal fails to show prejudice.”
Johnson v. Target Corp., 487 F. App'x 298, 300 (7th Cir. 2012); Cf. Banos v. City of
Chi., 398 F.3d 889, 893 (7th Cir. 2005) (party opposing withdrawal of admissions met
burden to establish prejudice.).
AFG argues that it relied on Candell’s admissions in its motion for summary judgment. (Dkt. 66). This “prejudice” is not enough under Rule 36 and the case law. Rule
36(b) “assur[es] each party that justified reliance on an admission…will not operate

On the other hand, AFG never requested that the Court deem the First RTAs admitted
during the discovery period despite Candell’s allegedly late responses.

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to his prejudice.” Fed. R. Civ. P. 36(b), Advisory Committee Notes (emphasis added).
See Blow, 855 F.3d at 800 (“[prejudice] is not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth. Rather, it
relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of a sudden need to obtain evidence with respect
to the questions previously answered by the admission.”) (internal citation and quotations omitted); Paymaster Corp., 1996 U.S. Dist. LEXIS 13943, at *5 (“prejudice
must be based on the party’s detrimental reliance on such admissions.”).
Furthermore, that AFG served and received responses to its Second Requests to
Admit, which covered some of the same topics as in the First Requests to Admit, mitigates any claimed prejudiced. Notably, AFG does not argue that exchanges during
discovery supported its reliance on Candell’s alleged admissions. See Blow, 855 F.3d
at 800 (affirming finding of no prejudice where “none of the parties’ exchanges during
discovery would have supported such a reliance [on the alleged admission]”). To the
contrary, Candell argues, and AFG does not contest, that her amended complaint and
the affidavit submitted in her discovery responses were consistent with her responses
to the Second Requests to Admit. Moreover, AFG had the opportunity to depose Candell to clear up any confusion with regard to any of the requests to admit.
Nevertheless, AFG relies on several district court cases for the proposition that
“withdrawal of admissions after a motion for summary judgment is filed is prejudice.”
(Dkt 66 at 3–4). None of these cases stand for such a general proposition. In Tidwell
v. Daley, 2001 U.S. Dist. LEXIS 18491 (N.D. Ill. Nov. 8, 2001), for example, the

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district judge denied plaintiff’s motion to withdraw or amend default admissions, explaining: “This case has been fraught with delays and missed deadlines almost from
its inception…Defendants relied on months of inaction by Tidwell and two rulings by
this court that the matters in the requests were conclusively admitted. Defendants
conducted their discovery according to that reliance, and the instant motion was not
actively pursued until the time for discovery had expired.” Id. Unlike in Tidwell, this
Court has not previously ruled that Candell has conclusively admitted any matters,
AFG does not argue that it conducted discovery in reliance on Candell’s alleged admissions, and this is not a case “fraught with delays and missed deadlines.”
Thus the Court finds that granting Candell’s present motion serves the merits of
this action and that AFG failed to demonstrate prejudice. See Simstad, 816 F.3d at
899 (“The inability to rely on default admissions and the obligation to litigate a case
on the merits” were not prejudicial and did not reflect an abuse of discretion.).
III. CONCLUSION
For the reasons stated above, Plaintiff Pauline Candell’s Motion to Withdraw Requests to Admit [62] is GRANTED. In light of this ruling, Plaintiff’s answers to the
First Requests to Admit (Dkt. 35) are withdrawn. The previously-set summary judgment briefing schedule (Dkt. 61) is stricken. Defendant AFG may submit a revised

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statement of uncontested facts and summary judgment briefing by 1/28/19; Candell’s
response is due 2/18/19; AFG’s reply, if any, is due 3/4/19.

E N T E R:
Dated: January 14, 2019
MARY M. ROWLAND
United States Magistrate Judge

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