Comeau et al v. Town of Webster et al

Filing 49

Magistrate Judge David H. Hennessy: ORDER entered granting 45 Motion to Deem Requests for Admissions as Admitted by Town of Webster. (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CHRISTPHER COMEAU, et al.,
Plaintiffs,

v.
TOWN OF WEBSTER, et al.,
Defendants,

v.
ROBERT J. MASCOFFIAN, et al.
Third Party Defendants.

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CIVIL ACTION
NO. 11-40208-TSH

ORDER
June 12, 2013
Hennessy, M.J.

By Order of Reference dated June 7, 2013, pursuant to 28 U.S.C. § 636(b)(1)(A) (Docket
#48), this matter was referred to me for a ruling on defendant Town of Webster’s Motion to
Deem Requests for Admissions as Admitted (Docket #45). The motion is ALLOWED.
I.

BACKGROUND
Alleging repeated failures to comply with extensions of time to respond to requests for

admissions, defendant Town of Webster (the “Town”) filed the present motion on May 28, 2013.
In its motion, the Town asserts that it served third party defendants, Arnold Villatico and Robert
Moscoffian, with requests for admissions on March 28, 2013, to which the third party defendants
failed to timely respond. At a status conference before Judge Hillman on May 6, 2013, Judge

Hillman ordered that all written discovery, including a response to the Town’s requests for
admissions, be completed by the third party defendants on or before May 20, 2013. (Docket
#43). After again failing to file a timely response, at a subsequent hearing on May 20, 2013,
Judge Hillman gave the third party defendants an additional week, until May 28, 2013, to answer
the outstanding requests. (Docket #44). Again the third party defendants failed to timely
respond. Accordingly, the Town moved under Fed. R. Civ. P. 36(a)(3) to have the matters in the
requests for admissions deemed admitted.
Third party defendants filed an opposition to this motion on May 29, 2013 (Docket #47).
Third party defendants state that technical issues prevented them from responding to the request
by the May 28, 2013 deadline. Specifically, third party defendants state that a malfunction of
Word software caused the responses to the requests for admissions to go from a document of 12
pages to a document of approximately 225 pages of one letter on top of another. In addition,
upon learning of the present motion, counsel for third party defendants asserts that he contacted
defense counsel by email informing them of the issue and attached a copy of the document as it
existed to the email.1 Counsel for third party defendants states that the problem was eventually
resolved and the corrected document was forwarded to defense counsel. Third party defendants
attached as Exhibit 1 to their opposition a copy of their answers to the requests for admissions.
II.

DISCUSSION
Pursuant to Fed. R. Civ. P. 36, “[a] party may serve on any other party a written request

to admit, for purposes of the pending action only, the truth of any matters within the scope of
Rule 26(b)(1)[.]” Fed. R. Civ. P. 36(a)(1). “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

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There is no indication that counsel for third party defendants attempted to contact either defense counsel or the
court prior to the discovery deadline.

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answer or objection addressed to the matter and signed by the party or its attorney. A . . . longer
time for responding may be . . . ordered by the court.” Fed. R. Civ. P. 36(a)(3).
Here, Judge Hillman enlarged the time to file a response to the Request for Admissions to
May 28, 2013. Third party defendants admit that their answers to the requests for admissions
were filed past this deadline. Though the Court can sympathize with an inability to resolve
technological glitches, counsel for third party defendants offers no reason for failing to seek a
modest enlargement of time to fix the issue and otherwise comply with their discovery
obligations.

Thus, by operation of Rule 36(a)(3), the requests for admissions are deemed

admitted. This ruling does not preclude third party defendants from seeking relief under Rule
36(b).2
III.

CONCLUSION
For the foregoing reasons, the Motion to Deem Requests for Admissions as Admitted

(Docket #45) is ALLOWED.

/s/ David H. Hennessy
David H. Hennessy
UNITED STATES MAGISTRATE JUDGE

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Fed. R. Civ. P. 36(b) authorizes the court to allow a party to withdraw or amend its admission “if it would promote
the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting
party in maintaining or defending the action on the merits.”

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