National Independent Truckers Insurance Company v. Gadway et al

Filing 83

ORDER - The plaintiff's Motion to Deem Admitted Plaintiff's Request for Admissions to Defendant, Bruce W. Larson (Filing No. 80 ) is granted. Mr. Larson is deemed to have admitted each of the requests contained in Plaintiff's Request for Admissions to Defendant, Bruce W. Larson, served September 6, 2011, for purposes of the claims in the plaintiff's complaint as against Mr. Larson. The Clerk of Court shall mail a copy of this order to each pro se defendant. Ordered by Magistrate Judge Thomas D. Thalken. (Copies mailed as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NATIONAL INDEPENDENT
TRUCKERS INS. CO.,
Plaintiff,
vs.
KELLY GADWAY and
BRUCE W. LARSON,
Defendants.

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8:10CV253
ORDER

This matter is before the court on the plaintiff’s motion to deem admitted the
plaintiff’s request for admissions as to the defendant Bruce W. Larson (Filing No. 80). The
plaintiff filed an index of evidence (Filing No. 81) in support of the motion. Mr. Larson did
not file a response to the plaintiff’s motion.
The court has authorized the parties to commence discovery and required the
parties to exchange certain mandatory discovery by May 31, 2011. See Filing No. 61. In
addition to mandatory discovery and disclosures, a party may request additional relevant
materials, including documents, interrogatory responses, and answers to request for
admissions. See Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 33; Fed. R. Civ. P. 34; Fed. R.
Civ. P. 36. The plaintiff’s motion relates to requests for admissions.
“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) relating to:
(A) facts, the application of law to fact, or opinions about either; . . . .” Fed. R. Civ. P.
36(a)(1). A party must serve a signed answer within thirty days, or the request may be
deemed admitted. Fed. R. Civ. P. 36(a)(3). A party’s answer must comply with Fed. R.
Civ. P. 36(a)(4), which provides:
If a matter is not admitted, the answer must specifically deny
it or state in detail why the answering party cannot truthfully
admit or deny it. A denial must fairly respond to the substance
of the matter; and when good faith requires that a party qualify
an answer or deny only a part of a matter, the answer must
specify the part admitted and qualify or deny the rest. 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).
“The quintessential function of Requests for Admissions is to allow the narrowing of
issues, to permit facilitation in presenting cases to the factfinder and, at a minimum, to
provide notification as to those facts, or opinions, that remain in dispute.” Xcel Energy,
Inc. v. United States, 237 F.R.D. 416, 420-21 (D. Minn. 2006) (quoting Lakehead Pipe
Line Co. v. Am. Home Assurance Co., 177 F.R.D. 454, 457-58 (D. Minn. 1997)); see
also Fed. R. Civ. P. 36 advisory committee’s note (1970 amend.) (“Rule 36 serves two vital
purposes, both of which are designed to reduce trial time. Admissions are sought, first to
facilitate proof with respect to issues that cannot be eliminated from the case, and
secondly, to narrow the issues by eliminating those that can be.”). “The purpose of a
request for admissions generally is not to discover additional information concerning the
subject of the request, but to force the opposing party to formally admit the truth of certain
facts, thus allowing the requesting party to avoid potential problems of proof.” Layne
Christensen Co. v. Purolite Co., No. 09-2381, 2011 WL 381611, at *4 (D. Kan. Jan. 25,
2011) (slip op.).
“The court has substantial discretion to determine the propriety of such requests
and the sufficiency of responses.” See Audiotext Comms. Network, Inc. v. US Telecom,
Inc., No. 94-2395, 1995 WL 625744, at *1 (D. Kan. Oct. 5, 1995) (quoting Dubin v. E. F.
Hutton Group Inc., 125 F.R.D. 372 (S.D.N.Y. 1989)). If the courts determine “an answer
does not comply with the requirements of Rule 36, they can order either that the matter is
admitted or require the responding party to serve an amended answer.” O’Connor v. AM
General Corp., No. 85-6679, 1992 WL 382366, at *2 (E.D. Pa. Dec. 7, 1992). “When
passing on a motion to determine the sufficiency of answers or objections, the court
obviously must consider the phraseology of the requests as carefully as that of the answers
or objections.” Audiotext, 1995 WL 625744, at *2 (quoting Thalheim v. Eberheim, 124
F.R.D. 34, 35 (D. Conn. 1988)). “The requesting party bears the burden of setting forth in

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necessary, but succinct, detail, the facts, events or communications to which admission is
sought. . . .” Audiotext, 1995 WL 625744, at *2 (quoting Diederich v. Dep’t of the Army,
132 F.R.D. 614, 619 (S.D.N.Y. 1990)). “[A] requesting party should not state ‘half of [a]
fact’ or ‘half truths’ which require the answering party to qualify responses.” Havenfield
Corp. v. H & R Block, Inc., 67 F.R.D. 93, 96-97 (W.D. Mo. 1973) (citations omitted).
Further, “[r]egardless of the subject matter of the Rule 36 request, the statement of the fact
itself should be in simple and concise terms in order that it can be denied or admitted with
an absolute minimum of explanation or qualification.” Id. at 96. The court may extend a
party’s time to answer or allow a party time to amend or withdraw previous admissions if
such action does not prejudice the requesting party and “would promote the presentation
of the merits of the action.” Fed. R. Civ. P. 36(a)(3) and (b).
The evidence shows the plaintiff served both defendants with requests for
admissions on May 31, 2011. See Filing No. 67 - Notice of Service. Mr. Larson did not
respond to the requests. During a telephone planning conference on September 2, 2011,
Mr. Larson stated he had not received the discovery requests. On September 6, 2011, the
plaintiff served Mr. Larson with another set of discovery requests including requests for
admissions. See Filing No. 77. The plaintiff represents that Mr. Larson did not respond to
the requests. On October 19, 2011, the plaintiff filed the instant motion to deem the
requests for admission to be admitted. See Filing No. 80. Mr. Larson did not respond to
the plaintiff’s motion. Under these circumstances the court will grant the plaintiff’s motion
as to Mr. Larson. Mr. Larson may move this court to withdraw or amend his admissions
in accordance with Rule 36(b). Upon consideration,

IT IS ORDERED:
1.

The plaintiff’s Motion to Deem Admitted Plaintiff’s Request for Admissions to

Defendant, Bruce W. Larson (Filing No. 80) is granted. Mr. Larson is deemed to have
admitted each of the requests contained in Plaintiff’s Request for Admissions to Defendant,
Bruce W. Larson, served September 6, 2011, for purposes of the claims in the plaintiff’s
complaint as against Mr. Larson.

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2.

The Clerk of Court shall mail a copy of this order to each pro se defendant

as follows:
Bruce Larson
P.O. Box 5552
Grand Island, NE 68802-5552

Kelly Gadway
P.O. Box 301
Hershey, NE 69143

DATED this 15th day of November, 2011.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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