Tracy et al v. Telemetrix et al
Filing
251
MEMORANDUM AND ORDER - 1) Plaintiff's Motion for Reconsideration, (Filing No. 239 ) is granted.2) Plaintiff's Motion to Determine the Sufficiency of Answers to Requests for Admissions, (Filing No. 204 ) is granted in part and denied in part.3) On or before September 9, 2015, Defendants shall amend their respective responses to Plaintiff's requests for admission as set forth in this order. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL J. TRACY, an individual and
Derivatively as a shareholder of Telemetrix
and Convey;
8:12CV359
Plaintiff,
MEMORANDUM AND ORDER
vs.
TELEMETRIX, Inc., et. al;
Defendants.
This matter is before the court on Plaintiff’s Motion for Reconsideration, (Filing No.
239). For the reasons set forth below, the motion will be granted and Plaintiff’s Motion to
Determine the Sufficiency of Answers to Requests for Admissions, (Filing No. 204) will,
upon reconsideration, be granted in part and denied in part.
BACKGROUND
Plaintiff originally filed this action in the District Court for Scotts Bluff County,
Nebraska on March 29, 2012.
The complaint lists numerous claims based on alleged
fraudulent transfers relating to defendant Telemetrix’s bankruptcy. The case was removed to
federal court on October 8, 2012. (Filing No. 1). After several rounds of motion practice,
discovery commenced on September 24, 2014. The parties experienced discovery related
disputes, including Plaintiff’s Motion to Determine the Sufficiency of [Defendants’]
Answers to Requests for Admission, (Filing No. 204), and Plaintiff’s Motion to Compel,
(Filing No. 216). The undersigned magistrate issued an order instructing the parties to
submit to the court statements “outlin[ing] the discovery requests that remain pending and
the objections that are still being asserted” and scheduled a status conference to discuss the
remaining discovery disputes. (Filing No. 226).
The parties submitted a joint statement on the status of their discovery disputes which
outlined the unresolved issues the pending motion to compel.
The statement made no
mention of Plaintiff’s motion regarding the sufficiency of Defendants’ responses to the
Requests for Admission. (Filing No. 230). A telephonic hearing, on the record, was held on
July 14, 2015, (Filing No. 235). Based on the briefs and argument, the undersigned issued an
order resolving the outstanding discovery disputes. Because the parties failed to mention
their ongoing dispute over Defendants’ responses to requests for admission, the court
assumed those issues were resolved. As such, Plaintiff’s motion regarding the requests for
admission was denied as moot. (Filing No. 237).
Plaintiff subsequently filed his motion to reconsider that ruling, arguing the parties
did not consider the dispute over the request for admissions as a disputed “discovery
request,” so they did not include it within their joint submission and never discussed it at the
July 14, 2015 hearing.
ANALYSIS
Pursuant to Rule 60(b): “On motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect . . . (6) any other reason that justifies
relief.”
Plaintiff seeks relief from the court order denying as moot his motion regarding the
requests for admission.
As an initial matter, the court’s order was clear:
The order
encompassed all outstanding discovery disputes – which would certainly include any issues
regarding requests for admission. In its submissions to the court, the Plaintiff did not
indicate his motion regarding the requests for admission was still at issue. However, giving
the parties’ the benefit of the doubt, and assuming they simply did not interpret my order
2
correctly, the court will reconsider the order denying as moot Plaintiff’s motion regarding the
requests for admission.
Plaintiff moves for the court to determine Defendants’ responses to certain Requests
for Admission of Defendants William Becker, Gary Brown, and Telemtrix, Inc. are
insufficient. (Filing No. 204). Plaintiff asks for a ruling that the following requests must be
deemed admitted by the respective defendants:
Telemetrix:
Nos. 4, 5, 7, and 33;
William Becker:
Nos. 36-43, 49, 50, and 55;
Gary Brown:
Nos. 12, 37-41, and 47-48.
In response to each of these requests, the respective defendants stated they could
neither admit nor deny the requests because they were either unaware of the facts, had no
personal knowledge regarding the request for admission, or could not specifically recall the
events described in the requests for admissions. (Filing No. 206-4 at CM/ECF pp. 17-39).
Plaintiff argues these responses fail to sufficiently comply with the federal rules. Fed.
R. Civ. P. 36(a)(4) states a party must either admit or deny a request for admission or, if a
party has no knowledge or information, the party must “state[] 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.” Defendants’ responses did not contain a statement to that effect.
Plaintiff argues that since Defendants’ answers are insufficient, the requests must be
deemed admitted. The court disagrees. Pursuant to Fed. R. Civ. P 36(a)(6), and on a finding
that answers are insufficient, “the court may order either that the matter is admitted or that an
amended answer be served.” The court has substantial discretion in determining what action,
if any, is appropriate in such cases. See Titus v. Stanton County, Neb., case no. 8:12cv261,
2013 WL 4546566 at *3 (D. Neb. Aug. 27, 2013).
3
In this case, Defendants stated they do not remember or have a sufficient knowledge
to either admit or deny the Requests for Admission identified in Plaintiff’s motion. But they
failed to state they had made a reasonable inquiry in an attempt to fully respond to the
requests, and despite these efforts, the information they know or can readily obtain is
insufficient to enable them to admit or deny the requests. Fed. R. Civ. P. 36(4). The
respective defendants are instructed to review the contested requests for admission and, if
they have not already done so, make the necessary inquires to determine whether they can
readily obtain the information needed to admit or deny the requests. If they cannot obtain the
necessary information, they need to state they have complied with the Federal Rules of Civil
Procedure by making the reasonable inquiry. If information is found, they must amend their
respective answers and either admit or deny the requests for admission.
IT IS ORDERED:
1)
Plaintiff’s Motion for Reconsideration, (Filing No. 239) is granted.
2)
Plaintiff’s Motion to Determine the Sufficiency of Answers to Requests for
Admissions, (Filing No. 204) is granted in part and denied in part.
3)
On or before September 9, 2015, Defendants shall amend their respective
responses to Plaintiff’s requests for admission as set forth in this order.
Dated this 27th day of August, 2015
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web 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 some other site does not affect the opinion of the court.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?