Schreiber v. Northland Group, Inc.

Filing 17

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's motion to compel (Doc. No. 16) is GRANTED in part and DENIED in part, as follows: (a) Defendants Requests for Admission propounded October 26, 2012, are deemed admitted. (b) Any objections to Defendants Interrogatories propounded October 26, 2012, are deemed waived. (c) Defendants motion to compel responses to Interrogatories and Requests for Production is DENIED without prejudice. Signed by District Judge Audrey G. Fleissig on 1/3/2013. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THOMAS SCHREIBER,
Plaintiff,
vs.
NORTHLAND GROUP, INC.,
Defendant.

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Case No. 4:12CV01331AGF

MEMORANDUM and ORDER

This matter brought pursuant to the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692, is before the Court on the motion of Defendant Northland Group, Inc.. Defendant
seeks an order, pursuant to Federal Rule of Civil Procedure 36(a)(3), to deem admitted
Requests for Admission directed to Plaintiff Thomas Schreiber. Defendant also requests
that the Court enter an order finding that Plaintiff’s objections to Defendant’s
Interrogatories and Requests for Production of Documents are waived, and requiring that
responses be filed within fourteen days. Plaintiff has not responded to the motion and the
time to do so has expired.
On October 26, 2012, Defendant served Plaintiff, by way of e-mail and United
States mail, with Interrogatories, Requests for Production of Documents, and Requests
for Admission. See Doc. No. 16-1. Plaintiff’s responses to these discovery requests were
due on or before November 28, 2012. As of the date of this Order, Plaintiff has neither
sought an extension of the time for response nor responded to these discovery requests.

Federal Rule of Civil Procedure 36(a) provides that a party may serve on any other
party a written request to admit the truth of any matters within the permissible scope of
discovery under the Rules of Civil Procedure relating to facts or the application of law to
fact. See Fed. R. Civ. P. 36(a)(3). “‘A matter is admitted’ unless the party to whom the
request is directed serves a written answer or objection within thirty days, or such shorter
or longer period as may be ordered by the court. ” Quasius v. Schwan Food Co., 596 F.3d
947, 951 (8th Cir. 2010) (quoting Fed. R. Civ. P. 36(a)(3)). “When a matter is admitted,
it is ‘conclusively established’ for purposes of the action, ‘unless the court, on motion,
permits the admission to be withdrawn or amended.’” Id. (quoting Fed. R. Civ. P. 36(b)).
The Eighth Circuit has generously interpreted the “on motion” requirement of Rule
36(b), noting that either motions to file responses to requests for admission out of time or
responses to a motion for summary judgment may be considered, “in essence, motions to
withdraw admissions.” Id. (internal quotation admitted); see, e.g., Manatt v. Union Pac.
R.R., 122 F.3d 514, 516-18 (8th Cir. 1997) (affirming district court’s grant of permission
to withdraw or amend admission, where defendant filed its answer beyond the thirty days
provided by Rule 36(a) because refusing the answer would not have promoted
presentation of the merits and allowing an untimely answer did not prejudice defendant);
Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1312-14 (8th Cir. 1983) (same); see
also Bergemann v. United States, 820 F.2d 1117, 1121 (10th Cir.1987) (holding that a
defendant’s motion in response to the plaintiff’s motion for summary judgment, along
with the defendant’s recorded responses to requests for admission at pre-trial hearings,

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constituted motions to withdraw the admissions). In the absence of such a motion,
however, the Eighth Circuit has held that where there has been no response requests for
admission are properly deemed admitted. Quasius, 596 F.3d 947 at 951.
In this case, Plaintiff has neither responded to the Requests for Admission nor
made any other filing that might be considered a motion to withdraw admissions.
Therefore, the Court concludes that Defendant’s motion should be granted and the
Requests for Admission deemed admitted.
Defendant also seeks an order providing that by failing to file timely responses to
Defendant’s Interrogatories and Requests for Production of Documents Plaintiff has
waived any objections thereto and requiring Plaintiff to answer Defendant’s
Interrogatories and Requests for Production of Documents within fourteen days. Rule
33(b)(4) of the Federal Rules of Civil Procedure likewise requires the filing of timely
objections, and provides that “[a]ny ground not stated in a timely objection is waived
unless the court, for good cause, excuses the failure.” As Plaintiff has neither filed timely
objections, nor responded to Defendant’s motion, the objections shall be deemed waived.
With respect to the remainder of Defendant’s motion, the Court notes that
Defendant has not complied with this district’s local rule regarding discovery disputes.
Defendant fails to include any indication or specific “statement that movant’s counsel has
conferred in person or by telephone with the opposing counsel in good faith or has made
reasonable efforts to do so, [and] that after sincere efforts to resolve their dispute, counsel
are unable to reach an accord.” Local Rule 37-3.04 (A). For this reason, the Court will

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deny Defendant’s motion to compel answers and production, without prejudice to refiling,
as necessary, after the parties have conferred.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to compel (Doc. No. 16) is
GRANTED in part and DENIED in part, as follows:
(a) Defendant’s Requests for Admission propounded October 26, 2012, are
deemed admitted.
(b) Any objections to Defendant’s Interrogatories propounded October 26, 2012,
are deemed waived.
(c) Defendant’s motion to compel responses to Interrogatories and Requests for
Production is DENIED without prejudice.

Audrey G. Fleissig
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of January, 2013.

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