Welch v. Prop Transport & Trading, Inc. et al
ORDER granting 143 Motion to Set Aside. Signed by Magistrate Judge Jane M. Virden on 6/1/2017. (bbf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.: 4:15-cv-187-JMV
PROP TRANSPORT & TRADING, LLC ET AL.
ORDER GRANTING MOTION FOR LEAVE TO WITHDRAW ADMISSIONS AND
SERVE RESPONSES OUT OF TIME
This matter is before the court on Defendant Prop Transport & Trading, LLC’s Motion
for Leave to Withdraw Admissions and Serve Responses Out of Time .1 Upon due
consideration of the motion and the applicable law, the court finds Defendant’s Motion for Leave
to Withdraw Admissions and Serve Responses Out of Time should be granted.
Standard of Review
“Although the court has considerable discretion to permit withdrawal or amendment, a
deemed admission may only be withdrawn when the moving party satisfies the conditions set
forth in Rule 36(b).” Le v. Cheesecake Factory Restaurants Inc., 2007 WL 715260, at *2 (5th
Cir. Mar. 6, 2007) (citing American Auto. Ass'n v. AAA Legal Clinic, 930 1117, 1119 (5th Cir.
1991)). Federal Rule of Civil Procedure 36(b) provides that “the court may permit withdrawal or
amendment 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.” However, “even when Rule 36(b)'s two-factor test has been satisfied, the district
court still has discretion to deny a request to withdraw or amend an admission.” Le, 2007 WL
715260, at *2 (5th Cir. Mar. 6, 2007) (citing In re Carney, 258 F.3d 415, 419 (5th Cir. 2001)).
In its motion, Prop Transport concedes the veracity of Requests 1-3, leaving only Request No. 4 subject
to the motion for leave to withdraw. See Motion for Leave to Withdraw Admissions  at ¶ 7.
The movant bears the burden of proof as to the first element contained within Rule 36—
that is, showing how withdrawal of the admissions promotes a presentation on the merits. The
respondent in opposition bears the burden of proof as to the second element—showing prejudice
if the admissions are withdrawn.” Casey v. Quality Restaurants & Concepts, 2012 WL 3261367,
at *3 (N.D. Miss. Aug. 8, 2012) (citing Curtis v. State Farm Lloyds, 2004 WL 1621700 (S.D.
Tex. April 29, 2004)).
“Courts have usually found that the prejudice contemplated by 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.” Le, 2007 WL 715260, at *3 (5th Cir. Mar. 6, 2007) (citing
American Auto., 930 F.2d at 1117). “Merely having to prove the matters admitted does not
constitute prejudice.” Id. (citing N. La. Rehab. Ctr. Inc. v. United States, 179 F.Supp.2d 658, 663
(W.D. La. 2001)). “Courts have also considered, however, within the prejudice analysis, the
timing of the motion for withdrawal as it relates to the diligence of the party seeking withdrawal
and the adequacy of time remaining for additional discovery before trial. Id. (citing N. La. Rehab
Ctr., 179 F. Supp. 2d at 663) (permitting withdrawal when party obtaining the admissions failed
to show that it would not be able to present alternative evidence and adequate time remained
before trial to conduct limited discovery). “In exercising its discretion, the court may consider
the fault of the party seeking withdrawal.” Casey, 2012 WL 3261367, at *4 (N.D. Miss. Aug. 8,
2012) (citing Pickens v. Equitable Life Assurance Soc., 413 F.2d 1390, 1394 (5th Cir. 1969)).
The court finds that the two-part test of Federal Rule of Civil Procedure 36(b) has been
met, and that it is appropriate to allow the Defendant, Prop Transport, leave to withdraw its
admissions and submit responses out of time. First, Prop Transport has met its burden of
showing that allowing the withdrawal of its admissions will promote the presentation of the
merits of the action. Were this court to allow the admission of Request No. 42 to stand in the face
of the representation that it is not an accurate statement of the facts, it would serve only to
potentially (assuming the representation is ultimately borne out by the evidence) distort the
accurate facts. On the other hand, if the representation is not borne out by admissible evidence,
that fact may be taken into account by the jury.
As for the second part of the Rule 36(b) test, the court is not persuaded that withdrawal of
Prop Transport’s admissions would prejudice the Port in maintaining or defending this action on
the merits. As stated above, prejudice relates to special difficulties. “A party is not prejudiced by
the need to conduct additional discovery, nor by being required to put on proof of previously
admitted items.” Le, 2007 WL 715260, at *9 (5th Cir. Mar. 6, 2007). The court recently extended
the discovery deadline in this case to November 6, 2017 . Thus, there is adequate time to
conduct any additional discovery that may be necessary.
Defendant Prop Transport, by way of its new counsel Mr. Moore, argues that it is unsure
as to why its former counsel “failed/refused to respond to the requests.” Motion to Withdraw
Admissions  at ¶4. While former counsel filed a motion to withdraw on February 7, 2017
, at the time the requests were served (January 6, 2017) and at the time the responses were
due (February 8, 2017), Prop Transport was still represented by its former counsel. The Port
argues that mistakes of Prop Transport’s counsel are chargeable to Prop Transport “no matter
how unfair this on occasion may seem.” Mason v. AAA Ins. Co., 2009 WL 2448004, at *3 (E.D.
La. Aug. 10, 2009). The Port is correct that Prop Transport was advised by its former counsel
Request No. 4 states, “Please admit that after the subject incident, Michael Spellmeyer (on behalf of
PT&T) advised Tommy Hart that PT&T would hold the Greenville Port Commission harmless with regard to the
incident involving Dewey Welch.”
that its responses were due by February 8, 2017. See Former Counsel’s Letter to Prop Transport,
Ex. A at . However, it remains unclear what Prop Transport understood its counsel
continued to do on its behalf after it informed Prop, by letter dated January 17, 2017, that further
remuneration would be required for further work. According to Prop, despite the letter requesting
further remuneration, counsel still continued working for the account of Prop Transport. Also,
the court disagrees with the Port’s argument that Prop Transport has not been diligent in seeking
to withdraw its admissions.
“[A] corporation may appear in the federal courts only through licensed counsel. As the
courts have recognized, the rationale for that rule applies equally to all artificial entities.”
Rowland v. Cal. Men's Colony, 506 U.S. 194, 202 (1993). At the time the responses were due,
Prop Transport was represented by counsel. Counsel was not allowed to withdraw until March
14, 2017 , at which time Prop Transport was given 45 days to obtain new counsel. Within
those 45 days, Timothy Moore appeared on behalf of Prop Transport and filed this instant motion
to withdraw the admissions and submit a response out of time . Accordingly, the court finds
that Prop Transport’s motion for leave to withdraw admissions and file responses out of time
 should be granted.
For the foregoing reasons, it is ordered that Defendant Prop Transport’s motion for leave
to withdraw admissions and file responses out of time  is granted.
SO ORDERED this 1st day of June, 2017.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE
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