Aprile Horse Transportation, Inc et al v. Prestige Delivery Systems, Inc. et al

Filing 96

OPINION AND ORDER granting in part and denying in part 92 Motion to Compel; Signed by Magistrate Judge Lanny King on 7/2/15: The Court finds that Prestiges responses to requests 33 and 43b do not comply with Rule 36 and orders that these responses are deemed admitted. The Court finds requests 4, 5, and 8 exceed the scope of allowable Rule 36 requests and sustains Prestige's objections to requests 4, 5, and 8. The Court finds that Prestige's response to request 17 complies with Rule 36 and Prestige need not amend its response. The Court find that Prestige's responses to requests 2, 3, 6, 7, 913, 16, 1820, 2528, 30, 34, 36, 43a, and 54 do not comply with Rule 36 and orders Prestige to serve amended responses to these request s consistent with this opinion. The Court overrules all of Prestige's objections other than the scope objections sustained for requests 4, 5, and 8. Prestige will serve amended responses required by this order within 30 days of this order. cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:13-CV-15-GNS-LLK
APRILE HORSE TRANSPORTATION, INC., et al.

PLAINTIFFS

v.
PRESTIGE DELIVERY SYSTEMS, INC., et al.

DEFENDANTS

OPINION AND ORDER
Plaintiffs Malissa and Michael Stack (the “Stacks”), pursuant to Rule 36(a)(6) of the
Federal Rules of Civil Procedure, moved this Court in their Motion to Order Requests for
Admission as Admitted or Alternatively, Motion to Compel Responses to Requests for
Admission to order 28 responses to requests for admission admitted, or alternatively to require
amended responses. (Docket # 92). For the reasons stated in this opinion and order, the Court
grants the Stacks’ motion as to 24 requests, ordering two requests admitted and ordering
amended responses to 22 requests. The Court denies the Stacks’ motion as to four requests.
Background
The Stacks filed their Complaint in a separate action, No. 5:13-CV-18-TBR (W.D. Ky.
Feb. 6, 2013), that District Judge Russell consolidated with this case. (Docket # 30). Their
Complaint alleges that Defendant Roy Hastings crashed a van on Interstate 24, in a one-vehicle
accident, while an agent or employee of Defendant Prestige Delivery Systems, Inc.’s
(“Prestige”). Compl. at paras 7, 9, Stack v. Hastings, No. 5:13-CV-18-TBR (W.D. Ky. Feb. 6,
2013). The Stacks, traveling in a tractor-trailer, later collided with Mr. Hastings’ van, which
came to rest blocking both lanes of the interstate. Id. at paras. 9-10. The Stacks sued Mr.
Hastings and Prestige for negligence. Id. at paras. 15-18.

Mr. Hastings disappeared at the time of the collision. (Docket # 60). His counsel has
stated that “it is believed that he [Mr. Hastings] was thrown or jumped from the roadway into the
Cumberland River below [the bride where the accident occurred] and perished.” Id. The parties
have kept the Court aware of state-court proceedings in Ohio required to declare Mr. Hastings
dead and begin probate. (Docket # 76). The Court addresses the sufficiency of Prestige’s
responses to the requests for admission based on the requirements of Rule 36, keeping in mind
that Mr. Hastings’ presumed death limits the sources Prestige may consult in formulating its
responses and in specifying a reasonable inquiry when it cannot admit nor deny.
Rule 36 Motions
Rule 36 provides one means for a discovering party to address a response to a request for
admission. That party may move the Court to determine the sufficiency of an answer or objection
to a request to produce. Fed. R. Civ. P. 36(a)(6). In determining the sufficiency of an objection,
the Court may sustain the objection or order an answer served. Id. In determining the sufficiency
of an answer, the Court may find the answer sufficient or, if insufficient, either order the matter
deemed admitted or that the responding party serve an amended answer. Id. In the instant matter,
the Stacks challenged the sufficiency of 28 of Prestige answers to requests to produce: requests
numbered 2–13, 16–20, 25–28, 30, 33, 34, 36, 43a, 43b,1 and 54. (Docket # 92). Prestige raised
objections and made answers to each of these requests. (Docket # 93-1).
Prestige’s Objections
Prestige made two sets of objections to each request for admission. First, Prestige raised
what it called preliminary objections. After stating these objections, Prestige proceeded to
answer the requests, “without waiving” the preliminary objections. Second, in response to each
1

Prestige made two responses to two different requests numbered 43. (Docket # 93-1, pp. 4142). The Court will refer to the first of these requests and responses as 43a, the second as 43b.
2

and every request, Prestige began with a list of objections, identical for each request. Many of
these repetitive objections repeated preliminary objections. Prestige then answered each request
“without waiving” its objections. (Docket # 93-1).
An objecting party must object with specificity to particular requests for admission.
Henry v. Champlain Enters., Inc., 212 F.R.D. 73, 78 (N.D.N.Y. 2003); Diederich v. Dept. of the
Army, 132 F.R.D. 614, 616 (S.D.N.Y. 1990); see also Janko Enters., Inc. v. Long John Silver’s,
Inc., No. 3:12-CV-345-S, 2013 WL 5308802, at *7 (W.D. Ky. Aug. 19, 2013) (stating a party
must make specific objections related to requests to produce and interrogatories). The lack of
specificity in Prestige’s objections left the Stacks without the ability to address the grounds for
objection squarely. Prestige bears the burden of explaining the propriety of its objections and
boilerplate objections do not accomplish this task. 2013 WL 5308802, at *7 (citing McLeod,
Alexander, Powell & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)). Therefore,
the Court overrules the objections, preliminary and intra-response, because they lack specificity
and fail to meet Prestige’s burden when stating an objection.
“Requests for admission are not a general discovery device.” Misco, Inc. v. U.S. Steel
Corp., 784 F.2d 198, 205 (6th Cir. 1986). Rule 36 serves two purposes—to narrow the list of
contested issues prior to trial (and thereby avoid wasting resources) and to elicit proof on the
remaining issues. Fed. R. Civ. P. 36 advisory committee notes; O’Neill v. Medad, 166 F.R.D. 19,
21 (E.D. Mich. 1996). These purposes further support overruling the objections because Prestige
stated them in a “without waving” fashion. The rules require a party to either answer or object to
a request for admission, not both. Fed. R. Civ. P. 36(a)(3) (“A matter is admitted unless . . . the
party . . . serves . . . a written answer or objection.” (emphasis added)). A party may move the
court to overrule an objection. Fed. R. Civ. P. 36(a)(6). An answer to a request for admission

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also entails consequences. An admission conclusively establishes the matter; a denial may result
in sanctions. Fed. R. Civ. P. 36(b), 37(c)(2).
Other district courts that have found the discovery rules do not permit “subject to” or
“without waiving” discovery responses. E.g., Mann v. Island Resports Dev., Inc., 2009 WL
6409113, at *3 (N.D. Fla. Feb. 27, 2009) (addressing requests for admission alongside requests
for production and interrogatories and stating that “without waiving” objections fail because they
lack a basis in the discovery rules, the (admittedly limited) caselaw and commentary support the
conclusion, and the practice “lacks any rational basis”) (citing Meese v. Eaton Mfg. Co., 35
F.R.D. 162, 166 (N.D. Ohio 1964); 8B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2173 (3d ed. 2010)). But see Nix v. Holbrook, No. , 2015 WL 733778,
at *4 (D.S.C. Feb. 20, 2015) (recognizing the split of authority on the subject, in the context of
interrogatories, and citing precedent for both outcomes). This Court agrees with the reasoning
that “without waiving” objections are improper and waive the objections. Moreover, much of the
caselaw allowing “without waiving” objections relies on the 1993 amendment of Rule 33 to state
that an “interrogatory must, to the extent it is not objected to, be answered separately and fully.”
Fed. R. Civ. P. 33(b)(3) (emphasis added); see e.g., Schipper v. BNSP Ry. Co., No. 2:07-CV02249-JWL-DJW, 2008 WL 2358748, at *1 (D. Kan. June 6, 2008). Rule 36 does not contain
language allowing a party to answer a request to the extent not objected to. Compare Fed. R.
Civ. P. 33(b)(3), with Fed. R. Civ. P. 36(a)(3).2
The Court holds that a party cannot cloak its answers in without-waiving objections. That
practice has no basis in the Rule 36 and would avoid the rule’s narrowing-of-issues goal. For
2

While the Court sees the comparison as apt for distinguishing caselaw that allows “without
waiving” objections, the parties have not placed the propriety of “without waiving” objections to
interrogatories before the Court. The Court expresses no opinion as to the propriety of such
objections to interrogatories.
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each instance when Prestige answered a request for admission after asserting objections, the
Court overrules its objections. To the extent this Court orders Prestige to serve amended
responses, Prestige must make either a specific objection or an answer, not both.
Prestige’s Answers
The Court addresses Prestige’s answers to the Stacks requests in groups, according to the
common threads found in the responses.
I. Responses that invoke a lack of presence (numbers 3, 6, 7, 9–13, 16, 26, and 28)
In response to eleven requests for admission, Prestige stated that it could neither admit
nor deny the request because it “was not present at the location on the date or time of the alleged
accident.”3 In response to request seven, Prestige also stated that it “does not know what steps
the Plaintiffs’ [sic] took if any, to cause the subject accident.” In response to requests 26 and 28,
Prestige also stated that it “only knows what Roy Hastings, Jr., indicated by telephone.”
“The answering party may assert lack of knowledge or information as a reason for failing
to admit or deny only if the party states that it has made reasonable inquiry and that the
information it knows or can readily obtain is insufficient to enable it to admit or deny.” Fed. R.
Civ. P. 36(a)(4). Moreover, a mere recitation of the rule text will not suffice. See Asea, Inc. v. S.
Pac. Transp. Co., 669 F.2d 1242, 1246 (9th Cir. 1981) (“[P]ermitting a party to avoid admitting
or denying a proper request for admission simply by tracking the language of Rule 36(a) would
encourage additional abuse of the discovery process.”); Napolitano v. Synthes USA, LLC, 297
F.R.D. 194, 199 (D. Conn. 2014) (“‘[T]he answer must state specifically what efforts have been
made or why reasonable efforts would be unavailing to obtain the requisite knowledge.’”)

3

Prestige also asserts a lack of presence in response to request 8. The Court addresses that
request in section II, infra.
5

(quoting Al-Jundi v. Rockefeller, 91 F.R.D. 590, 594 (W.D.N.Y. 1981)). For all thirteen of these
requests, Prestige failed to assert that it made a reasonable inquiry into the answer.
Prestige “must conduct a reasonable inquiry and answer [each request] if the information
is readily obtainable, even though [Prestige] has no personal knowledge of the facts.” Drutis v.
Rand McNally & Co., 236 F.R.D. 325, 330 (E.D. Ky. 2006). The Court finds that the answers to
these interrogatories do not comply with Rule 36 and orders Prestige to serve amended answers
to requests 3, 6, 7 9–13, 16, 26, and 28. Prestige must make a reasonable inquiry into each
request and cannot assert a lack of first-hand knowledge, without more, if it wishes to maintain a
lack-of-knowledge response. If Prestige gains knowledge allowing it to admit or deny the
request, it must do so.
II. Responses that invoke a lack of knowledge as to the law (numbers 4, 5, and 8)
In response to two requests for admission, Prestige stated that it could neither admit nor
deny the request because it has “no idea what the duties of Roy Hastings, Jr. an Independent
Contractor, would be under controlling law.” In response to request 8, Prestige generally alleged
it could neither admit nor deny because it was not present. The Court notes that Prestige neither
alleged nor specified a reasonable inquiry before stating it lacked the requisite knowledge to
answer. While that would ordinarily make Prestige’s responses defective, the Court will address
the propriety of the requests.
The Stacks request that Prestige admit that when Mr. Hastings crossed the Cumberland
River Bridge, he “had a duty to have the vehicle under reasonable control” (Request 4) and “a
duty to exercise ordinary care to avoid collision with other persons or vehicles on the highway”
(Request 5). They also request an admission that Mr. Hastings “had a duty to promptly
illuminate the vehicle” (Request 8). Rule 36 allows the Stacks to request admission of the

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application of law to fact and opinions about the same. Fed. R. Civ. P. 36(a)(1)(A). However, the
Stacks may not request an admission of a pure conclusion of law. Id. at advisory committee’s
notes (“The amended provision does not authorize requests for admissions of law unrelated to
the facts of the case.”); U.S. v. Petroff-Kline, 557 F.3d 285, 293 (6th Cir. 2009). 4
Kentucky law applies to the legal duties of Prestige and Mr. Hastings, pursuant to the
Erie doctrine. Jellison v. Kroger Co., 290 F.2d 183, 184 (6th Cir. 1961). “Under Kentucky law, it
is clear that the existence of a duty of care . . . is a pure question of law for the court.” James v.
Meow Media, Inc., 300 F.3d 683, 691 (6th Cir. 2002) (citing Mullins v. Commonwealth Life Ins.
Co., 839 S.W.2d 245, 248 (Ky. 1992)). Requests related to the bounds of Mr. Hastings’ duty
seek an admission of a conclusion of pure law and therefore exceed the scope of Rule 36. While
the Stacks argued that Prestige failed to preserve this objection, Prestige did raise the objection in
its response brief to the motion, if not in its responses to the requests. (Docket # 93, p.3, # 94, p.
7). Moreover, the Court will sustain the objections, even assuming tardiness, because to order
Prestige to amend an answer to an objectionable request would not construe the rules “to secure
the just, speedy, and inexpensive determination” of the case. Fed. R. Civ. P. 1.
III. Responses that otherwise invoke a lack of knowledge (numbers 18, 27, and 54)
In response to another three requests for admission, Prestige stated that it could neither
admit nor deny the requests for various reasons amounting to a lack of knowledge. However, just
as with the lack-of-presence responses,5 Prestige failed to both allege and specify how Prestige
made a reasonable inquiry in an attempt to admit or deny the request. For this reason, Prestige
must serve amended answers to requests 18, 27, and 54 after a reasonable inquiry, and must
specify the efforts made in the inquiry if its amended answer will rely on a lack of knowledge.
4

These requests contrast to requests 7, 9, and 10, which seek admissions related to facts or
mixed questions of fact and law, even if on closely related topics.
5
See section I, supra.
7

As to request 18, Prestige stated that it could not admit or deny that Mr. Hastings
purchased the vehicle involved in the accident on May 1, 2009 because it did not possess the
purchase records. The Court finds this response inadequate. The purchase records do not provide
the only source of the needed information and Prestige does not allege it made any other efforts
in gain the knowledge needed to admit or deny.
As to request 27, Prestige gave a number of reasons it could not admit to the accuracy of
a 911 recording. It states that it “was not privy to the conversation,” did not know the recording
method, and did not know if any edits were made. These reasons do not represent intractable
problems, but rather the issues Prestige must address in a reasonable inquiry. Prestige did not
allege or specify any reasonable inquiry into these roadblocks to answering the request but
alleged them as specific items of knowledge it lacked. Prestige must engage in the reasonable
inquiry before responding that it lacks sufficient knowledge.
As to request 54, Prestige stated it can neither admit nor deny because it did not
understand the Stacks’ use of the term “material evidence.” Material evidence is “[e]vidence
having some logical connection with the facts of the case or the legal issues presented.” Material
Evidence, Black’s Law Dictionary (10th ed. 2014). Materiality “appears to be subsumed into”
the fact-of-consequence arm of relevance. U.S. v. Carriger, 592 F.2d 312, 315 (6th Cir. 1979);
see Fed. R. Evid. 401(b). However, it has also been called “‘loosely used and ambiguous.’” 592
F.2d at 315 (citing Fed. R. Evid. 401 advisory committee note). Nonetheless, Prestige may only
assert a lack of knowledge after making a reasonable inquiry. If Prestige believes the request’s
language susceptible to an objection, it must state one with specificity. The current response, to
assert a lack of knowledge based on the potentially objectionable character of the request does

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not comport with the rules. Fed. R. Civ. P. 36(a)(3) (stating a party must answer or object to a
request for admission, not both).
For these reasons, Prestige must serve amended answers to requests 18, 27, and 54.
IV. Responses that state a document speaks for itself (numbers 25, 30, 34, and 43a)
The Court now addresses Prestige’s response to four requests for admission that a
document “speak for itself.”6 Stating that a document speaks for itself avoids the purpose of
requests for admission, i.e., narrowing the issues for trial. Miller v. Holzmann, 240 F.R.D. 1, 4
(D.D.C. 2006) (“It is also a waste of time, since the ‘objection’ that the document speaks for
itself does not move the ball an inch down the field and defeats the narrowing of the issues in
dispute that is the purpose of the rule . . . .”). If a request seeks an admission about a quotation or
paraphrase of text, the responding party must answer, object (on grounds other than speaks for
itself), or properly allege and support a lack of knowledge. Id. (calling a speaks-for-itself
response “an evasion of the responsibility to either admit or deny”).
As to request 25, the Stacks requested Prestige to admit not the contents of a document
but that the document’s contents “accurately reflect the substance of” a conversation. Prestige
must respond not the contents of the document but to the accuracy of its contents.
As to request 30, the Stacks sought Prestige’s admission as to the contents of the
document. Prestige must respond to the Stacks’ paraphrase and not tell them what they already
know: that the document says what it says.
As to request 34, the Stacks did not seek an admission of the contents of the exhibit, an
agreement between Prestige and Mr. Hastings, but as to facts that existed at the time the
agreement was in force. Despite Prestige’s response that the document speaks for itself, the
6

Prestige stated that a document speaks for itself in more than four responses, but the Court
addresses those other responses in other sections of this opinion.
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Stacks do not request an admission of the document’s contents. Prestige must respond in a
manner that meets the contents of the request.
As to request 43a, the Stacks requested an admission regarding the requirements Prestige
placed on Mr. Hastings. While the agreement may serve as a source of knowledge as to the
requirements that Mr. Hastings carry a pager, radio, or mobile telephone, the Stacks did not
directly ask about the agreement’s contents. Moreover, the document’s contents may not
comport with the parties actions. Prestige must respond to the request posed and cannot assert the
contents of the agreement to avoid responding.
For these reasons, Prestige must serve amended answers to requests 25, 30, 34, and 43a.
For these and other responses, Prestige may not respond that a document “speaks for itself.”
V. Responses that evade the request (numbers 2, 19, 20, and 36)
In response to four requests for admission, Prestige evaded the request or part of it.
As to request 2, the Stacks requested Prestige admit that its Department of Transportation
number was painted on the vehicle involved in the accident. Prestige stated that it “[a]dmits so
much” of the request “that there was a placard on the outside of the van.” The Stacks did not
request an admission that a placard was on the outside of the van. Prestige must respond to the
request posed. Moreover, the language used by Prestige indicated a partial denial. The partial
denial does not comport with Rule 36, which requires a denial to “fairly respond to the substance
of the matter.” Fed. R. Civ. P. 36(a)(4). Moreover, a partial denial must “specify the part
admitted and qualify or deny the rest.” Id. Prestige must respond to the request’s substance: that
the number 512674 was painted on the vehicle on February 10, 2011, and that the number
512674 is a USDOT number assigned to Prestige.

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As to request 19, the Stacks requested that Prestige admit a document is a “true and
accurate copy” of a vehicle registration. Prestige responded that it the document “appears to be
the same document” possessed by Prestige. But this response does not admit or deny the request
made. Prestige must respond as to the document’s true and accurate nature, not that it possesses
an identical copy, which may be neither true nor accurate.
As to request 20, the Stacks requested that Prestige admit that, at the time of the accident,
Mr. Hastings was in the process of making a delivery documented in an attached exhibit.
Prestige responded that the document contained the details of a specific shipment and then
invoked the speaks-for-itself response. The speaks-for-itself portion of the response did not
comport with the rule, as described above. The remainder of the response did not address the
actions of Mr. Hastings (the gist of the request) but admitted the contents of the document.
Prestige must respond to the request posed.
As to request 36, the Stacks requested Prestige admit that attached documents were “true
and accurate copies” of documents Prestige keeps in the ordinary course of its business and
previously provided in another lawsuit. Prestige responded that the “documents appear to be
accurate” but that it cannot admit to the method used to obtain the documents because another
attorney represents it in that matter. The information to determine the accuracy of the records is
available to Prestige. Based on its response, it must possess similar records because these
“appear accurate.” The rules require Prestige to compare the documents. See Miller, 240 F.R.D.
at 4. To avoid the comparison and not admit or deny the genuineness of the documents subverts
the purpose of the rule. Moreover, Prestige may contact its state-court counsel, even if he or she
does not appear in the instant matter. Prestige did not make any allegation that it lacked the
knowledge to admit or deny this request or that it would not have the information available to it

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upon a reasonable inquiry. The Court finds that Prestige’s answer attempts to avoid responding
to the request presented. Prestige must respond to the request as posed, either answering or
specifically objecting.
For these reasons, Prestige must serve amended answers to requests 2, 19, 20, and 36.
VI. Acceptable response (number 17)
In response to request 17, the Court finds Prestige’s response complied with Rule 36. As
such, Prestige need not amend its answers to request 17. The Stacks may serve additional
requests to clarify the points and Prestige may move the Court to amend its answer if it desires,
but the Court cannot order an amended response based on the instant motion.
As to request 17, Prestige denied the request only subject to a without-waiving–
objections qualifier. The Court already overruled the objections. As such, the Court views the
response as specifically denying the request in its entirety. Therefore, the response is proper. Fed.
R. Civ. P. 36(a)(1)(4). While the Stacks may not like the answer, it complies with the rule. As
such this Court cannot take any action at this time. Compare Fed. R. Civ. P. 36(a)(6) (allowing
the Court to act upon objections and noncompliant answers), with Fed. R. Civ. P. 37(c)(2)
(requiring the requesting party to prove a matter true before moving the court for reasonable
expenses).
VII. Responses deemed admitted (numbers 33 and 43b)
In response to three requests, Prestige provides responses this Court deems admissions.
As to request 33, the Stacks request that Prestige admit that the vehicle in the accident
met at least one of four weight-related measures. One of those measures was a gross vehicle
weight of 10,001 pounds or more. Prestige responded not by admitting the request but “stat[ing]
that the State of Ohio Bureau of Motor Vehicles Certificate of Registration lists the GVW [gross

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vehicle weight] as 10,001 [pounds].” Prestige reiterated this in its response to the motion.
(Docket # 93, p. 6). While Prestige did not state that it admitted the request, it responded by
reciting that records indicate that the van met the gross-vehicle-weight measure. As such, the
Court finds the answer does not comply with the rule because it does not admit, specifically
deny, or assert a lack of knowledge. Based on Prestige’s response, the Court orders the matter
admitted.
As to request 43b, the Stacks requested Prestige admit Mr. Hastings used a personal
vehicle to make deliveries. Without stating that it admitted the request, Prestige stated that
Hastings owned the vehicle, listed it in the contract between Hastings and Prestige, and used it at
the time of accident and to transport items. The Court finds this response admits the request
without using the word admitted. Therefore, the Court orders the request admitted.
ORDER
IT IS HEREBY ORDERED that the Court grants in part and denies in part Plaintiff’s
Motion to Order Requests for Admission as Admitted or Alternatively, Motion to Compel
Responses to Requests for Admission. (Docket # 92). The Court finds that Prestige’s responses
to requests 33 and 43b do not comply with Rule 36 and orders that these responses are deemed
admitted. The Court finds requests 4, 5, and 8 exceed the scope of allowable Rule 36 requests
and sustains Prestige’s objections to requests 4, 5, and 8. The Court finds that Prestige’s response
to request 17 complies with Rule 36 and Prestige need not amend its response. The Court find
that Prestige’s responses to requests 2, 3, 6, 7, 9–13, 16, 18–20, 25–28, 30, 34, 36, 43a, and 54
do not comply with Rule 36 and orders Prestige to serve amended responses to these requests
consistent with this opinion. The Court overrules all of Prestige’s objections other than the scope
objections sustained for requests 4, 5, and 8.

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IT IS FURTHER ORDERED that Prestige will serve amended responses required by this
order within 30 days of this order.

July 2, 2015

c:

counsel

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