Westfield Group v. Kentucky Utilities Co. et al
Filing
35
MEMORANDUM OPINION AND ORDER: 1) 20 Motion for Summary Judgment is DENIED WITHOUT PREJUDICE. 2) 24 Motion for Leave to Withdraw and Amend Responses to KU's Request for Admissions is GRANTED. 3) Pla's 26 Motion for Continuance to Complete Additional Discovery is DENIED AS MOOT. 4) 25 Motion to File an Amended Complaint is GRANTED. Signed by Judge Joseph M. Hood on 6/28/2013. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
WESTFIELD GROUP A/S/O
KENTUCKY EAGLE, INC.,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
KENTUCKY UTILITIES CO., et.
al.,
Defendants.
Civil Case No.
5:12-cv-241-JMH
MEMORANDUM OPINION & ORDER
***
This matter is before the Court on Defendant Kentucky
Utilities
summary
Company’s
judgment
(“Kentucky
[D.E.
20],
Utilities”)
Plaintiff
motion
Westfield
for
Group’s
(“Westfield”) motion under Federal Rule of Civil Procedure
56(d) to continue discovery [D.E. 26], Westfield’s motion
for
leave
Utilities
to
withdraw
request
for
or
amend
admissions
responses
under
to
Federal
Kentucky
Rule
of
Civil Procedure 36(b) [D.E. 24], and Westfield’s motion to
file an amended complaint [D.E. 25].
For all of the above-
listed motions, either the time has expired for a response,
or the appropriate responses [D.E. 26, D.E. 32] and replies
[D.E. 30, D.E. 34] have been filed.
are now ripe for review.
Court
will
deny
Thus, these motions
For the reasons which follow, the
Kentucky
Utilities’
motion
for
summary
judgment [D.E. 20], grant Westfield’s motion for leave to
withdraw
request
or
for
amend
the
Westfield’s
denied as moot.
discovery
and
Utilities’
motion to file an amended complaint [D.E. 25].
continue
24],
Kentucky
Westfield’s
to
[D.E.
to
grant
motion
admissions
responses
under
Rule
56(d)
will
case
arises
be
[D.E. 26].
I. FACTUAL AND PROCEDURAL BACKGROUND
The
traffic
underlying
accident
dispute
that
took
in
this
place
on
July
Southland Drive in Lexington, Kentucky.
that
evening,
(“Kentucky
one
Eagle”)
of
Plaintiff
employees
was
a
2010,
on
[D.E. 1 at 3].
On
Kentucky
27,
from
Eagle,
lawfully
Inc.’s
operating
a
tractor-trailer owned by Kentucky Eagle when he collided
with overhead electric and/or telephone lines.
3].
[D.E. 1 at
The electric and telephone lines were attached to a
mast, which, as a result of the collision, fell over and
caused an electrical fire to break out at Hunan Restaurant.
[D.E. 1 at 3].
Ohio Casualty Company was the insurer for the owner
and tenant of Hunan Restaurant.
[D.E. 26-3 at 2].
As the
liability insurer for Kentucky Eagle, Westfield paid claims
on its behalf to Ohio Casualty Company.
3].
filed
[D.E. 26-3 at 2—
Afterwards, Westfield, as subrogee of Kentucky Eagle,
a
complaint
in
this
action
seeking
relief
from
Kentucky Utilities and Windstream Kentucky East, LLC, the
2
respective owners of the electrical and phone lines that
allegedly,
according
to
Westfield,
caused
the
accident.
[D.E. 1 at 2—3].
The
present
admissions
January
served
28,
2013.
dispute
on
arises
Westfield
Westfield
over
by
a
Kentucky
failed
to
request
for
Utilities
respond
to
on
the
request for admissions within the time allotted by Federal
Rule of Civil Procedure 36(b) due to a filing error.1
The
request
for
admissions
served
upon
Westfield
essentially asked it to admit their entire legal case.
example,
by
not
responding
to
the
request,
For
Westfield
admitted that “Kentucky Eagle, Inc. and/or John Porter is
at fault for causing the subject fire” and that it has “no
evidence
to
Eagle
truck
struck an electrical line and not a telephone line.”
[D.E.
20-3 at 1].
establish
th61at
the
Kentucky
Therefore, because Westfield never answered
the request, Kentucky Utilities, without first contacting
Westfield about their failure to respond, filed a summary
judgment motion on May 2, 2013.
followed
with
a
motion
to
[D.E. 20].
continue
1
Kentucky
Westfield
Utilities’
It is a sad day when counsel chooses to play “gotcha” with
opposing counsel.
A simple telephone call or email would
have allowed counsel to determine whether opposing counsel
intended not to respond to the requests for admission,
thereby saving the Court and the parties much time, money,
and effort, since the parties could have then worked out a
resolution without troubling the Court.
3
motion under Rule 56(d) until the end of the discovery
period set by this Court’s scheduling order [D.E. 26], a
motion for leave to withdraw or amend its response to the
request for admissions under Rule 36(b) [D.E. 24], and a
motion to file an amended complaint [D.E. 25].
II. ANALYSIS
“A
district
court
has
considerable
discretion
over
whether to permit withdrawal or amendment of admissions.”
Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147,
154 (6th Cir. 1997) (internal citation and quotation marks
omitted).
However,
“[t]he
court's
discretion
must
be
exercised in light of Rule 36(b), which permits withdrawal
(1) ‘when the presentation of the merits of the action will
be subserved thereby,’ and (2) ‘when the party who obtained
the admission fails to satisfy the court that withdrawal or
amendment
will
prejudice
that
party
action or defense on the merits.’”
in
maintaining
the
Id. (quoting Fed. R.
Civ. P. 36(b)).
“The first prong of the test articulated in Rule 36(b)
is satisfied when upholding the admission would practically
eliminate
any
presentation
on
the
merits
of
the
case.”
Riley v. Kurtz, No. 98-1077, 194 F.3d 1313, *2 (6th Cir.
Sept.
28,
citation
1999)
and
(unpublished
quotation
marks
4
table
opinion)
omitted).
(internal
Further,
the
prejudice contemplated by the second prong of Rule 36(b)
“is not simply that the party who initially obtained the
admission will now have to convince the fact finder of its
truth.”
Kerry Steel, 106 F.3d at 154.
“Instead, prejudice
under Rule 36(b) ‘relates to special difficulties a party
may face caused by a sudden need to obtain evidence upon
withdrawal or amendment of an admission.’” Riley, 194 F.3d
at *2 (quoting Kerry Steel, 106 F.3d at 154).
There
is
no
doubt
that
upholding
Westfield’s
admissions in this case would eliminate any resolution of
this issue on the merits.
The request asked Westfield to
admit point blank that it had no evidence to establish that
the Kentucky Eagle truck struck an electrical line, and
that Kentucky Eagle was at fault for causing the fire at
issue.
amend
[D.E. 20-3 at 1].
the
36(b),
admissions
since
Thus, permitting Westfield to
satisfies
allowing
the
the
first
amendment
prong
would
of
Rule
certainly
“promote the presentation of the merits of the action.”
Fed. R. Civ. P. 36(b).
The Sixth Circuit’s decision in Riley supports this
conclusion.
Riley,
194
F.3d
at
1313.
In
Riley,
the
Defendant overlooked the word “falsely” in the request for
admissions served upon him.
inadvertently
admitted
to
Id. at *2.
“falsely”
5
As a result, he
making
accusations
against the Plaintiff, which was a core issue in the case.
Id.
to
The Sixth Circuit noted that permitting the Defendant
withdraw
prong
amend
the
Rule
of
or
36(b)
because
undeniably
allowed
adjudicated.”
the
Id.
omission
an
“satisfied
merits
of
the
first
would
amendment
the
have
case
to
be
An identical conclusion is appropriate
here.
Further, Kentucky Utilities will not be prejudiced in
maintaining and defending the action on the merits, as it
will not be confronted with any “special difficulties” from
a “sudden need to obtain evidence upon . . . amendment.”
Kerry Steel, 106 F.3d at 154 (internal citation omitted).
This
is
particularly
the
case
because
the
parties’
discovery period, as set forth in this Court’s December 14,
2012 scheduling order [D.E. 15], sets the deadlines for
completion
expert
of
discovery
parties
have
significant
Kentucky
granted
fact
yet
on
that
on
December
to
take
discovery.
Utilities
is
discovery
will
30,
suffer
the
if
9,
2013.
depositions
Thus,
Kentucky
September
Further,
or
only
will
and
both
conduct
prejudice
Westfield’s
Utilities
2013,
any
that
motion
is
have
to
now
convince the fact finder of the truth of the unanswered
request
for
admissions,
an
6
undertaking
which
is
not
considered prejudice under Rule 36(b).
Kerry Steel, 106
F.3d at 154.
This
conclusion
precedent.
is
supported
by
Sixth
Circuit
For example, in Clark v. Johnston, 413 F. App’x
804 (6th Cir. 2011) (unpublished), a panel determined that
a
plaintiff
was
not
prejudiced
by
the
district
court’s
grant of leave to the defendant to withdraw responses to
admissions because the plaintiff still “had plenty of time
during the discovery process to introduce other evidence”
that the court could have considered in deciding a summary
judgment
motion.
Similarly
in
this
case,
Kentucky
Utilities has plenty of time to conduct discovery and file
a summary judgment motion on the merits of the action.
Cf.
Riley, 194 F.3d at *2 (holding that the defendant would be
prejudiced if the plaintiff were granted leave to amend his
responses because the plaintiff did not move to amend until
the third day of trial after the close of his case).
Accordingly,
“[b]ecause
the
risk
of
prejudice
to
[Kentucky Utilities] is low and the request at issue goes
to
the
heart
of
the
dispute,”
the
Court
will
use
its
“considerable discretion” to grant Westfield’s motion for
leave to amend or withdraw the responses to request for
admissions.
Scott v. Garrard Cnty. Fiscal Court, No. 5:08-
cv-273-JMH, 2012 WL 619230, at *2 (E.D. Ky. Feb. 24, 2012);
7
Kerry
Steel,
106
F.3d
at
154;
[D.E.
24].
Because
Westfield’s failure to respond to the request is the only
basis
upon
which
Kentucky
Utilities
moved
for
summary
judgment, the summary judgment motion is, therefore, denied
without prejudice.
pursuant
to
scheduling
the
Discovery shall continue in this case
deadlines
order.
[D.E.
set
forth
15].
in
this
Therefore,
Court’s
Westfield’s
motion for a continuation to complete additional discovery
is denied as moot.
Westfield also filed a motion seeking permission to
file an amended complaint in this action.
[D.E. 25].
This
motion is unopposed, as the time has expired for a response
to be filed.
The only amendments suggested in the proposed
amended complaint are to change the address of Defendant
Windstream
Kentucky
East,
LLC,
so
that
the
address
is
correctly reflected in the record, and the correction of a
typographical
motion
was
error
filed
in
in
a
paragraph
timely
11.
fashion
[D.E.
on
May
25].
The
22,
2013,
pursuant to the Court’s scheduling order, which required
amended
pleadings
to
be
filed
by
June
6,
2013.
Plaintiff’s motion is granted.
III. CONCLUSION
For the reasons stated above, IT IS ORDERED:
8
Thus,
1) that Defendant’s Motion for Summary Judgment [D.E.
20] is DENIED WITHOUT PREJUDICE;
2) that Plaintiff’s Motion for Leave to Withdraw and
Amend Responses to KU’s Request for Admissions [D.E. 24] is
GRANTED;
Plaintiff
has
ten
(10)
days
to
serve
complete
responses to Kentucky Utilities’ Request for Admissions on
Defendant;
3)
that
Plaintiff’s
Motion
for
a
Continuance
to
Complete Additional Discovery [D.E. 26] is DENIED AS MOOT.
Discovery
shall
run
until
the
specified
times
in
this
Court’s scheduling order [D.E. 15];
4)
that
Plaintiff’s
Motion
Complaint [D.E. 25] is GRANTED.
This the 28th day of June, 2013.
9
to
File
an
Amended
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