E3 Biofuels, LLC v. Biothane Corporation et al
Filing
305
ORDER granting in part 246 Motion to Compel. Plaintiff shall supplement its responses to memorialize the withdrawal of its objection to RFA No. 53 and to rectify the typographical errors contained in its responses to RFA Nos. 68, 101 and 113. Ordered by Magistrate Judge F.A. Gossett. (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
E3 BIOFUELS, LLC,
Plaintiff,
V.
BIOTHANE, LLC, successor in
interest and liability to, PERENNIAL
ENERGY, INC., MARVIN
ENTERPRISES, INC. F/K/A,
AMERICAN BOILER COMPANY,
and KATZEN INTERNATIONAL,
INC.,
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8:11CV44
ORDER
Defendants.
Plaintiff served responses to Defendant Perennial Energy, Inc.’s (“PEI”) Requests for
Admissions (“RFA”) on May 31, 2013. PEI claims that Plaintiff’s responses to certain
requests contain improper objections. PEI has filed a motion requesting that the Court
declare the requests admitted or order Plaintiff to supplement its responses. (Filing 246.)
PEI’s motion will be granted, in part.
DISCUSSION
Under Federal Rule of Civil Procedure 36, a party may serve on any other party a
written request to admit the truth of any matters within the scope of Rule 26(b)(1) relating
to facts, the application of law to fact, or opinions about either. The purpose of Rule 36 is
“to expedite trial by eliminating the necessity of proving undisputed issues and thus
narrowing the range of issues for trial.” Fisher v. Baltimore Life Ins. Co., 235 F.R.D. 617,
623 (N.D.W. Va. 2006) (quotation and citation omitted).
“The court has substantial discretion to determine the propriety of such requests and
the sufficiency of responses.” National Independent Truckers Ins. Co. v. Gadway, No.
8:10CV253, 2011 WL 5554802, *2 (D. Neb. Nov. 15, 2011). “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.” Id. (quotation
and citation omitted). “The requesting party bears the burden of setting forth in necessary,
but succinct, detail, the facts, events or communications to which admission is sought . . .”
Id.
PEI makes multiple complaints about Plaintiff’s RFA responses. First, PEI asserts
that several of Plaintiff’s responses are improper because they pose objections based on a
distinction between an electronic version of exhibits that PEI sent to Plaintiff in connection
with the RFA and the hard copy of those materials. For instance, in response to RFA No. 28,
Plaintiff stated:
As a preliminary matter, plaintiff notes that the PDF file identified as ‘Exhibit
E’ that was emailed to plaintiff’s counsel by [PEI’s] counsel is different than
the paper copy of ‘Exhibit E’ appended to [PEI’s] requests for admission.
To the extent this RFA is directed at the PDF version of ‘Exhibit E,’ this
request is denied.
To the extent this RFA is directed at the paper copy of ‘Exhibit E,’ plaintiff
admits that this document is a true and accurate copy . . .
(Filing 248-1.) PEI argues that because the electronic version was sent merely as a courtesy,
Plaintiff should not have referenced it when responding to the requests.
The Court finds PEI’s arguments in this regard unconvincing. Given the large amount
of discovery disputes that have arisen over the course of this litigation, Plaintiff can hardly
be blamed for inserting these objections and/or explanations. PEI is responsible for the
inconsistencies between the two sets of materials and Plaintiff dealt with these
inconsistencies in a reasonable manner, especially considering the history of this case.
Plaintiff’s inclusion of the complained-of statements does not render its responses unclear
or otherwise inappropriate.
PEI next maintains that Plaintiff’s objection to RFA No. 43 on the basis that the
request seeks a legal conclusion is improper. PEI claims that this request seeks an admission
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pertaining to the application of law to fact and/or Plaintiff’s opinions regarding the same,
particularly, that Dennis Langley had an “obligation to ensure” the project’s success as a
result of “guarantees” he provided for the construction of the Ethanol Plant. (Filing 248-1.)
It is true that a party may serve requests for admission that seek the application of law
to fact. However, “[r]equests for admission are properly objectionable when they call for a
conclusion of one of the ultimate issues in the case . . . Where issues in dispute are requested
to be admitted, a denial is a perfectly reasonable response.” Williamson v. Correctional Med.
Serv., No. 06-379, 2009 WL 1364350, *2 (D. Del. May 14, 2009) (citations omitted).
Moreover, “[e]ven though a request may be phrased to appear factual, if it encroaches on
legal turf, or reaches the ultimate decision of the court, the request will be seen as seeking
a legal conclusion and cannot be compelled.” Phillip N. Adams & Assoc, LLC v. Dell, Inc.,
No. L05-CV-64, 2007 WL 128962, *2 (D. Utah Jan. 11, 2007).
RFA No. 43 encroaches upon a legal question. (Filing 248-1.) As pointed out by
Plaintiff, this request seeks an admission by Plaintiff that legal duties or obligations arose
purely as a result of certain “guarantees” made by Mr. Langley in connection with the
construction of the Ethanol Plant. In any event, despite Plaintiff’s objection, it nonetheless
partially admitted the request, providing a detailed explanation regarding its response. (Id.)
In particular, Plaintiff stated that Mr. Langley provided guarantees for various reasons
pertaining to the Plant and that Mr. Langley would not have provided guarantees if he did
not believe that the contractors hired to construct the Plant would act in accordance with their
contractual duties. (Id.) Plaintiff’s response is sufficient.
PEI also argues that Plaintiff’s responses to RFA Nos. 50 and 52,1 which inquire
whether construction of the Plant was “substantially complete” by certain dates, are
improper. (Id.) Plaintiff essentially objected to these requests on the basis that they are
ambiguous. Plaintiff explained that there are different definitions of the phrase “substantially
complete,” and that the phrase is a term of art that is defined differently in various documents
pertaining to the Plant. Despite its objections, Plaintiff provided responses to these requests,
admitting RFA No. 50, and denying RFA No. 52.
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Plaintiff has withdrawn its objection to RFA No. 53. (Filing 260.)
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The Court agrees with Plaintiff that these requests are vague and ambiguous. Given
the phraseology used by PEI, Plaintiff’s responses are appropriate. Williamson, 2009 WL
1364350 at *3 (citations omitted) (“To compel answers to vague and indefinite questions
capable of more than one interpretation and which require an explanation thwarts the
purposes of Rule 36(a) . . . A party is not required to respond to a request containing vague
or ambiguous statements”).
Similarly, Plaintiff objected to RFA Nos. 86, 87, 88 and 89, which inquire about the
Plant’s boilers, on the basis that they include the undefined phrase “full capacity” which
could have different meanings with regard to the boilers. (Filing 248-1.) In its responses,
Plaintiff asserted that it would attempt to provide an answer to these requests if PEI clarifies
what it means by the phrase “full capacity.” (Id.) As mentioned previously, as the requesting
party, PEI has the burden of setting forth in succinct detail the facts or communications to
which admission is sought. In these requests, PEI failed to do so. The scope and meaning
of the requests are unclear, which makes an admission or denial impossible. Plaintiff’s
responses to these requests are sufficient.
PEI further contends that Plaintiff’s responses to RFA Nos. 54, 61, 62, 63, 74, 75, 76,
77, 84, 85, 92, 139, 161, 162, 163, 170, 171, 172, 174, 175, 180, 181, 182, 183, 196, 198,
199, 200, 205, 206, 208, 209, 211 and 212 are improper because Plaintiff failed to make, or
at the least state that it made, a reasonable inquiry which would allow it to either admit or
deny the requests. The subject requests appear to quote or paraphrase documents, but the
referenced documents were not attached to the RFA and PEI did not otherwise identify them
or identify individuals who allegedly provided the information set forth in the requests.
Given this, Plaintiff objected to each of the requests with variations of the following
statement:
[P]laintiff objects that this request is incomplete in that it includes a quotation,
yet fails to identify who purportedly made this quotation, nor does it identify
any documents in which this quotation purportedly appears. To the extent this
request purports to require plaintiff to sort and sift through the hundreds of
thousands of pages of documents that have been produced in this case by the
parties and the non-parties so plaintiff can admit or deny this request, plaintiff
objects that this request is overly broad and unduly burdensome.
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(Id.)
The Court finds nothing evasive with Plaintiff’s responses to these requests. Again,
PEI did not describe in succinct detail the events or communications to which admission was
sought. It would be extremely burdensome for Plaintiff take the steps necessary to allow it
to either admit or deny statements and/or alleged facts purportedly taken from unidentified
documents or individuals, particularly in light of the voluminous amount of materials that
have been produced in this case. Plaintiff’s responses to these requests are sufficient.
Finally, PEI complains that Plaintiff changed the language of RFA Nos. 68, 101 and
113 as a result of typographical errors. Plaintiff has agreed to supplement its responses to
rectify those errors. (Filing 260.)
Accordingly, having considered each argument presented in the parties’ briefs,
IT IS ORDERED that PEI’s Motion to Determine the Sufficiency of E3's Answers
to Requests for Admission (filing 246) is granted, in part. Plaintiff shall supplement its
responses to memorialize the withdrawal of its objection to RFA No. 53 and to rectify the
typographical errors contained in its responses to RFA Nos. 68, 101 and 113.
DATED August 29, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
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