Spin Master Ltd. et al v. Bureau Veritas S.A. et al
Filing
162
ORDER granting 127 Motion to Strike ; denying 137 Motion to amend response to request for admission. Signed by Hon. H. Kenneth Schroeder, Jr on 3/27/2012. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SPIN MASTER LTD.,
Plaintiff,
08-CV-923A (Sr)
v.
BUREAU VERITAS CONSUMER PRODUCTS
SERVICE, INC., et al.,
Defendants.
DECISION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara,
pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon
dispositive motions. Dkt. #9.
Currently before the Court is a motion by defendant Eurofins Product
Safety Labs (“Eurofins”), to strike plaintiff Spin Master, Ltd.’s (“Spin Master’s”), revised
response to defendant Bureau Veritas Consumer Products Services, Inc.’s (“Bureau
Veritas’”), request for admission No. 17. Dkt. #127. In response to Eurofins’ motion,
Spin Master moves, pursuant to Rule 36(b) of the Federal Rules of Civil Procedure for
leave to amend its response to Bureau Veritas’ request for admission No. 17. Dkt.
#137.
This action arises from the November 7, 2007 recall of a children’s toy,
Aqua Dots, after it was discovered that 1,4-butanediol, a chemical in Aqua Dots,
metabolizes into gamma-hydroxy butyrate (“GHB”), a/k/a the date rape drug, causing
children who swallow sufficient quantities of the Aqua Dots to become comatose. Dkt.
#1. Spin Master alleges that in June of 2007, it retained Bureau Veritas, which
contracted with Eurofins, to perform oral acute toxicity animal tests pursuant to 16
C.F.R. § 1500.3(c)(2)(i)(A), and that the tests were not performed properly, causing
Bureau Veritas to issue an erroneous report that Aqua Dots were not toxic. Dkt. #1.
Spin Master alleges that it relied upon the Bureau Veritas report and Eurofins testing in
continuing to distribute and sell Aqua Dots. Dkt. #1.
The lawsuit was commenced by the filing of a complaint on December 17,
2008. Dkt. #1. Defendants answered in February of 2009 and a Case Management
Order was entered on June 2, 2009. Dkt. #56. On July 13, 2009, Bureau Veritas
served its first set of requests for admission upon Spin Master. Dkt. #129-6. On
September 14, 2009, subject to objections to the extent that the request was “vague,
ambiguous and uncertain,” Spin Master admitted that “[t]he retail sale of Aqua Dots
began in April 2007.” Dkt. #129-1, p.4. On June 2, 2011, Spin Master revised its
response as follows:
Spin Master objects to this Request to the extent that it is
vague, ambiguous and uncertain. Subject to this and the
foregoing General Objections, Spin Master responds as
follows: Deny. Aqua Dots sales by Spin Master to retailers
began on May 10, 2007. The first of such sales were to
Target Corporation. Retail sales of Aqua Dots to consumers
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began in early June 2007. Direct Response1 sales of Aqua
Dots to consumers began on April 16, 2007.
Dkt. #129-2, p.5.
Eurofins argues that it is prejudiced by this amendment because it
mapped out its discovery plan and developed its trial strategy in reliance upon the
admission that Spin Master began selling Aqua Dots through retailers such as Toys R’
Us, Wal-Mart, Target and Costco in April of 2007. Dkt. #128, p.2. For example,
Eurofins argues that it chose not to seek testimony or written discovery from retailers
“who most certainly possess relevant documents and information regarding both Spin
Master’s distribution of Aqua Dots to retailers and those retailers’ subsequent
distribution of Aqua Dots to end consumers.” Dkt. #128, p.5. Eurofins also challenges
the accuracy of Spin Master’s revision, noting a report of hospitalization of a seven year
old girl on April 17, 2007 following ingestion of Aqua Dots purchased from Wal-Mart.
Dkt. #129-14. Eurofins argues that Spin Master’s admission that the retail sale of Aqua
Dots began in April of 2007 is central to its defense that Spin Master distributed the
product to consumers long before it commissioned the toxicity test. Dkt. #128, p.2.
Spin Master argues that although a “subsidiary of Spin Master began
selling Aqua Dots through direct response sales to consumers in April 2007,” it did not
1
The Electronic Retailing Association, a trade association of electronic marketers, defines “direct
response” as
Advertising used to trigger a response from the viewer or recipient of the
advertisement. This is a method of marketing and sales which bypasses
traditional retail stores and presents a product for sale directly to the
consumer.
Dkt. #157, p.4.
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discover until after it responded to this request for admission, which was served during
the early stages of discovery, that retail stores did not begin selling Aqua Dots until
June 2007. Dkt. #137, pp.2, 5 & 7. Spin Master also argues that because it was not a
retailer of Aqua Dots, it has never possessed first-hand knowledge of when retailers
commenced selling Aqua Dots and that it’s knowledge of the subject is based upon the
same business records that have been provided to defendants during discovery. Dkt.
#137, pp.2, 9, 10 & 13. Moreover, Spin Master notes that defendants have questioned
deposition witnesses regarding their knowledge of the chronology of sales of Aqua
Dots. Dkt. #137, p.12. Spin Master argues that it should be permitted to amend its
response to clarify the ambiguous, vague and overbroad request by distinguishing
direct response sales from retail sales. Dkt. #137, p.2. Spin Master also argues that
Eurofins should not be permitted to challenge the amended response because the
request for admissions was made by Bureau Veritas, not Eurofins. Dkt. #144, p.2.
Eurofins replies that the amendment should be stricken because it does
not aid in the presentation of the merits given that the substance of the original
admission is not contested – i.e., consumers were able to purchase Spin Master’s
Aqua Dots as of April of 2007. Dkt. #151, pp.13-14.
Bureau Veritas argues that Spin Master’s motion to amend it response
should be denied because the amended response serves only to complicate the
undisputed fact that consumers were able to purchase Aqua Dots as of April of 2007.
Dkt. #154. Bureau Veritas argues that there is no need to amend the response if retail
is afforded is plain meaning, to wit, the sale of commodities or goods in small quantities
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to ultimate consumers. Dkt. #154, p.6, citing Webster’s Third New International
Dictionary.
Spin Master responds that Bureau Veritas has not moved to strike the
amendment and that Bureau Veritas should not profit from its failure to define retail
sales or to request that Spin Master admit that “sales of Aqua Dots began in April
2007.” Dkt. #157. Spin Master agrees that its response does not alter when Aqua Dots
first became available for purchase by consumers but only attempts to clarify how Aqua
Dots were made available to consumers. Dkt. #158, p.3.
Rule 36(a)(1) of the Federal Rules of Civil Procedure provides that “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; and (B) the
genuineness of any described documents.”
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.
Fed. R. Civ. P. 36(a)(4). Rule 36(b) of the Federal Rules of Civil Procedure provides
that
A matter admitted under this rule is conclusively established
unless the court, on motion, permits the admission to be
withdrawn or amended. Subject to Rule 16(e), the court
may permit withdrawal or amendment if it would promote the
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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. An
admission under this rule is not an admission for any other
purpose and cannot be used against the party in any other
proceeding.
Thus, the decision to excuse a party from its admission is within the court’s discretion
and is not required even if both criteria set forth in the Rule are satisfied. Donovan v.
Carls Drug Co., Inc., 703 F.2d 650, 651-52 (2d Cir. 1983), rejected on other grounds by
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 134 (1988).
In considering a request to withdraw or amend an admission, the Court
should be cognizant of the underlying goal of requests for admissions, which are
intended to narrow the factual issues of a case and speed the resolution of claims. Ng
v. HSBC Mortg. Corp., No. 07-CV-5434, 2011 WL 3511296, at *4 (E.D.N.Y. Aug. 10,
2011). Moreover, the Court should consider that it is the party requesting admission
that “bears the burden of setting forth its requests simply, directly, not vaguely or
ambiguously, and in such a manner that they can be answered with a simple admit or
deny without an explanation, and in certain instances, permit a qualification or
explanation for purposes of clarification.” Henry v. Champlain Enterprises, Inc., 212
F.R.D. 73, 77 (N.D.N.Y. 2003). “Generally, qualification is permitted if the statement,
although containing some truth, . . . standing alone out of context of the whole truth . ..
convey[s] unwarranted and unfair inferences.” Diederich v. Dep’t of Army, 132 F.R.D.
614, 619 (S.D.N.Y. 1990) (internal quotations omitted). “Qualifying a response may be
particularly appropriate if the request is sweeping, multi-part, involves sharply contested
issues, or goes to the heart of a defendant’s liability.” Wiwa v. Royal Dutch Petro. Co.,
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No. 01CIV1909, 2009 WL 1457142, at *4 (S.D.N.Y. May 26, 2009). Qualifications
should “provide clarity and lucidity to the genuineness of the issue” and not “obfuscate,
frustrate, or compound the references.” Henry, 212 F.R.D. at 78.
In the instant case, Spin Master’s attempt to amend its response to qualify
the request for admission so as to distinguish between sales to consumers via retailers
such as Target and sales to consumers via direct response sales such as commercials
urging purchase through toll-free telephone numbers does nothing to promote the
presentation of the merits in this action. Regardless of how the consumer purchased
the product, there does not appear to be any dispute that consumers were able to
purchase Aqua Dots as of April of 2007. Thus, Spin Master’s admission comports with
a plain reading of the request for admission. Moreover, Spin Master’s admission that
“[t]he retail sale of Aqua Dots began in April 2007" does not preclude it from
differentiating between sales by Target and direct response sales should such
distinctions prove relevant. Accordingly, the motion to strike is granted and the motion
to amend is denied.
SO ORDERED.
DATED:
Buffalo, New York
March 27, 2012
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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