Tran v. Chubb Group of Insurance Companies et al

Filing 138

OPINION AND ORDER. Federal Insurance Company's Notice of Plaintiff's Failure to Comply With the Court's September 2, 2015 Order, Doc. #70, and Fed. R. Civ. P. 36(a) Request to Deem Admitted the First Set of Requests for Admissions Prop ounded on Plaintiff, ECF 92 , is GRANTED; Plaintiff Tran's Motion for Protective Order Relating to Defendant's Rule 36 First Requests for Admission, ECF 99 , is DENIED. Defendants' first Requests for Admission Nos. 1 through 30 are DEEMED ADMITTED. Signed by Magistrate Judge Norah McCann King on 12/23/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NGOC TRAN,
Plaintiff,
Civil Action 2:14-cv-447
Judge Watson
Magistrate Judge King

vs.

CHUBB GROUP OF INSURANCE
COMPANIES, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Federal Insurance Company’s
Notice of Plaintiff’s Failure to Comply With the Court’s September 2,
2015 Order, Doc. #70, and Fed. R. Civ. P. 36(a) Request to Deem
Admitted the First Set of Requests for Admissions Propounded on
Plaintiff, ECF 92 (“Motion to Deem Admitted”) and on Plaintiff Tran’s
Motion for Protective Order Relating to Defendant’s Rule 36 First
Requests for Admission, ECF 99 (“Motion for Protective Order”).

For

the reasons that follow, the Motion to Deem Admitted is GRANTED and
the Motion for Protective Order is DENIED.
I.

Background
Plaintiff alleges that defendant Federal Insurance Company

(“defendant”)1 issued an insurance policy providing coverage to
plaintiff for jewelry having an appraised value of $266,825.00 (“the
Policy”).

Complaint, ECF 11, ¶ 2.

According to plaintiff, her home

1

With the agreement of the parties, all other defendants have been dismissed.
Preliminary Pretrial Order, ECF 17, p. 3.

1

was burglarized on June 13, 2013, and all but four pieces of her
jewelry were stolen.

Id. at ¶ 3.

Plaintiff further alleges that the

remaining four pieces of jewelry were stolen during a second robbery
that occurred on October 24, 2013.

Id. at ¶ 7.

Plaintiff claims

that, although she “fully complied” with the Policy’s requirements,
defendant has “wrongfully refused to pay for this insured loss.”

Id.

at ¶¶ 4-5, 8-9.
When it served its first requests for admission (“Requests for
Admission”), defendant attached copies of plaintiff’s federal and
state (Pennsylvania) individual and business tax return documents for
the years 2011 and 2012.

See ECF 70; Exhibit A, attached thereto.

All of the thirty Requests for Admission asked plaintiff to verify the
authenticity of various documents and to verify the information
contained in the returns.

See id.

After the parties were unable to

resolve their dispute regarding the sufficiency of plaintiff’s
responses to defendant’s first Requests for Admission, defendant filed
a motion to deem those requests admitted.
attached thereto.

Id.; Exhibits B and C,

On September 2, 2015, the Court granted defendant’s

motion, rejecting plaintiff’s arguments that the requested information
is irrelevant and requires knowledge of the tax code:
Defendant’s requests are relevant to the issues in
this case and ask plaintiff to admit merely the
authenticity of her tax returns and certain facts regarding
the preparation and filing of those tax returns. The
requested information is therefore within the possession of
the plaintiff. Cf. Fed. R. Civ. P. 36(a)(4)(“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
2

information it knows or can readily obtain is insufficient
to enable it to admit or deny.”). Response to these
requests does not require an understanding of the tax code
and plaintiff’s objection based on her lack of
understanding of tax law therefore rings hollow.
Plaintiff also takes the position that the information
sought by the Requests for Admission are “better suited to
deposition testimony” and that defendant, in fact, asked
plaintiff questions about her tax returns during that
deposition. However, as plaintiff admits, “[s]he responded
to the request for admissions along the same tenor of the
answers to the same questions asked of her in the
deposition; that she did not understand tax law and
therefore did not know the answer.” Memo. Contra, p. 2.
For the reasons previously discussed, these answers to the
Requests for Admission are insufficient. Plaintiff must
therefore supplement her answers to these requests. See
Fed. R. Civ. P. 36(a)(6).
Opinion and Order, ECF 90, pp. 9-10 (“the Opinion and Order”).

The

Court ordered plaintiff to supplement her responses to defendant’s
Requests for Admission no later than September 14, 2015.

Id. at 10.

The Court specifically warned that “Plaintiff’s failure to do so will
result in an order deeming the requests admitted.”

Id.

On September 9, 2015, plaintiff served supplemental responses to
the Requests for Admission.

Exhibit A, attached to Motion to Deem

Admitted (copies of supplemental responses without attachments)
(collectively, “Supplemental Responses” or “Requests for Admissions”;
individually, “Request No. __” or “Supplemental Response No. __”).

On

the same day, plaintiff also filed a notice with the Court,
representing that she had served, by email, her Supplemental Responses
“in compliance” with the Opinion and Order.

Notice of Response to

Discovery, ECF 91.
Defendant disagrees that plaintiff’s Supplemental Responses are
3

compliant, arguing that plaintiff’s Supplemental Responses are
substantively identical to her original responses. Defendant asks that
the Court therefore deem the requests admitted.
Admitted.

See Motion to Deem

In response, plaintiff filed her Motion for Protective

Order and a separate memorandum in opposition, ECF 100 (“Plaintiff’s
Opposition”).

Thereafter, defendant filed its combined reply in

support of its Motion to Deem Admitted and opposition to the Motion
for Protective Order, ECF 105 (“Defendant’s Reply”).

Plaintiff has

also filed a reply in support of her motion, ECF 106 (“Plaintiff’s
Reply”).
II.

These motions are now ripe for resolution.

Applicable Standards
Defendant seeks an order deeming the Requests for Admission

admitted.

This Court has previously set forth the standard governing

relevance for discovery purposes under Rule 26(b) of the Federal Rules
of Civil Procedure and Rule 36, which governs a court’s determination
of the sufficiency of responses to requests for admission.
and Order, pp. 2-4.

Opinion

More briefly, relevance for discovery purposes is

extremely broad.

Lewis v. ACB Bus. Servs., Inc., 135 F.3 389, 402

(6th Cir. 1998).

Rule 36 permits a party to

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.

4

Fed. R. Civ. P. 36(a)(1).

“A matter is admitted unless, within 30

days after being served, the party to whom the request is directed
serves on the requesting party a written answer or objection addressed
to the matter and signed by the party or its attorney.”

Fed. R. Civ.

P. 36(a)(3).
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).

After considering a motion to determine the

sufficiency of an answer or objection, a court may find that an
objection was justified or, if not, order that an answer or amended
answer be served or deem the matter admitted.
36(a)(6).

Fed. R. Civ. P.

“‘The court has substantial discretion to determine the

propriety of such requests and the sufficiency of the responses.’”
Baker v. Cty. of Missaukee, No. 1:09-CV-1059, 2013 WL 5786899, at *5
(W.D. Mich. Oct. 28, 2013) (quoting Nat’l Independent Truckers Ins.
Co. v. Gadway, No. 8:10 CV 253, 2011 WL 5554802, at *2 (D. Neb. Nov.
15, 2011)).
Plaintiff has moved for a protective order.

Rule 26 of the

Federal Rules of Civil Procedure provides that a person resisting
discovery may move the court, for good cause shown, to issue an order

5

protecting the person or party from “annoyance, embarrassment,
oppression, or undue burden or expense [.]”

Fed. R. Civ. P. 26(c)(1).

Under Rule 26, a court may limit the scope of the disclosure or
discovery to certain matters.

Fed. R. Civ. P. 26(c)(1)(D).

The grant

or denial of motions for protective orders falls within the “broad
discretion of the district court in managing the case.”

Conti v. Am.

Axle & Mfg., No. 08-1301, 326 F. App’x 900, at *903-04 (6th Cir. May
22, 2009) (quoting Lewelling v. Farmers Ins. of Columbus, Inc., 879
F.2d 212, 218 (6th Cir. 1989)).
Finally, a party filing a discovery motion must certify that the
party has exhausted extrajudicial efforts in attempting to obtain the
requested discovery.

S.D. Ohio Civ. R. 37.2.

Although defendant did

not technically comply with this requirement, plaintiff has certified
that she has in good faith conferred or attempted to confer with
defendant in an effort to resolve the parties’ dispute.
Protective Order, p. 1.

Motion for

Considering the present record and the

context in which this discovery dispute arises, the Court concludes
that its discretion is better exercised in considering the merits of
the motions.
III. Discussion
As discussed supra, the thirty Requests for Admission ask
plaintiff to verify the authenticity of her various tax documents and
to verify the information contained in her tax returns.

In initially

responding to the Requests for Admission, plaintiff raised several
general objections, claimed privilege, and challenged the relevancy,
6

burden, and scope of the requests; however, plaintiff also provided
the following response to all thirty Requests for Admission:
Objection. Plaintiff Tran incorporates the forgoing
General Objections. This request is unduly burdensome and
harassing because, upon information and belief, Defendant
and its attorneys have requested information within their
possession and control. Further this request is ambiguous,
over broad, and unduly burdensome because it seeks a
narrative response better suited to deposition testimony.
Plaintiff Tran additionally states issues relating to tax
returns and her knowledge and understanding of tax returns
was covered fully during the 10 hours of transcribed
deposition testimony, where an interpreter was available to
assist plaintiff in explaining and elaborating answers to
defendant’s questions.
Without waiving objection and solely in the interest
of expediting discovery plaintiff Tran states: the request
for admission is denied, I do not understand taxes I do not
want to answer correctly, I do not know the answer to this
Question.
Id. at PAGEID#:1683-1684.
In her Supplemental Responses, plaintiff again states that she
has a limited understanding of tax returns and therefore cannot answer
the questions.

See generally Supplemental Responses.

More

specifically, Requests for Admission Nos. 1, 7, 13, 19, and 25 ask
plaintiff to admit that the attached documents are true and accurate
copies of her tax returns.

See Exhibit A, attached to Motion to Deem.

In her Supplemental Responses to these requests, plaintiff responds
that she “Cannot Truthfully Admit or Deny” because “she does not
understand taxes” and “does not know the answer[.]”

See id.

Requests for Admission Nos. 2, 6, 8, 12, 14, 18, 20, 24, 26, and
30 ask plaintiff to admit or deny whether the information in her tax
returns is true and accurate; the requests do not ask whether
7

plaintiff’s taxes were calculated correctly.

Id.

Plaintiff again

responds that she “Cannot Truthfully Admit or Deny” because “she does
not understand taxes” and “does not know the answer[.]”

Id.

Requests for Admission Nos. 3, 4, 9, 10, 15, 16, 21, 22, 27, and
28 ask plaintiff to admit or deny that she provided the information
contained in each tax return to her accountant and whether she
authorized her accountant to execute the forms on her behalf.

Id.

Plaintiff repeats that she “Cannot Truthfully Admit or Deny” because
“she does not understand taxes” and “does not know the answer[.]”

Id.

She also states, “She had no participation in sending any tax or
income information to MHC and relied on others.”
not identify the referenced “others.”

Id.

Plaintiff does

Id.

Requests for Admission Nos. 5, 11, 17, 23, and 29 ask plaintiff
to admit or deny whether each tax return attached to the requests was
filed with the Internal Revenue Service or the Pennsylvania Department
of Revenue.

Id.

Plaintiff again responds that she “Cannot Truthfully

Admit or Deny” because “she does not understand taxes” and “does not
know the answer[.]”

Id.

She reiterates that “[s]he had no

participation in sending any tax or income information to MHC and
relied on others.”

Id.

Again, plaintiff does not identify the

“others” upon whom she relied.

Id.

Defendant contends that the Supplemental Responses fail to comply
with the Opinion and Order.

Motion to Deem Admitted, p. 3.

For

example, as it relates to Request for Admission No. 5, plaintiff
states that she can neither admit nor deny that the attached tax
8

returns were filed even after having investigated the issue.

Id.

Defendant therefore asks that the Requests for Admission be deemed
admitted.

Id. at 3-4.

In defending her Supplemental Responses, plaintiff first refers
to explanations purportedly offered during her deposition, but she
fails to cite to the record where these explanations can be found.
See Motion for Protective Order, pp. 1-2.

Plaintiff also insists

that, despite her lack of sophistication and limited understanding of
tax law, she responded in good faith to the Requests for Admission:
After receiving the Court order, plaintiff immediately
commenced a best effort to inquire into the matters
requested in the defendant’s request for admission.
The plaintiff is not a sophisticated, educated
individual. She has only a high school diploma. Her
primary language is the Cambodian language known as Khmer.
She has never had any active participation in any tax
preparation, and relied entirely on others to submit
information relating to Federal and State taxes.
Plaintiff is not an educated tax law specialist. She
has investigated the matter to the best of her ability, and
responded to the request for admission in good faith.
Motion for Protective Order, pp. 2-3.
Opposition, p. 1 (same).

See also Plaintiff’s

Plaintiff now contends that she has admitted

that her accountant submitted for filing certain, unidentified, tax
returns:
Plaintiff’s attorney contacted MHC tax preparation
services. Her Attorney learned that MHC states income tax
returns for her individually were filed by MHC in the tax
year 2011 both Federal and State (Pennsylvania). She
attached those filed returns to the response to the request
for admissions, and admitted that MHC had filed those
returns electronically. Similarly, MHC states and
9

corporate tax returns for ProTeam Staffing were prepared
and filed for Pennsylvania in 2012. Plaintiff admitted
that these returns had been filed by MHC, and attached them
to her response to requests for admissions.
Plaintiff’s attorney learned from MHC that no other
tax returns other than those three returns were filed.
With this information, she then responded to each of
the requests for admissions to the best of her ability.
A tax specialist may have an opinion that tax returns
prepared by MHC did not include financial transactions that
should have been reported as income and expenses on the
subject tax returns.
The plaintiff however does not individually have an
understanding of the tax law sufficient to admit or deny
the request as to the accuracy of these tax returns.
Plaintiff’s Opposition, pp. 1-2.

See also Motion for Protective

Order, p. 5 (reiterating, in slightly different language, the
communication with MHC tax preparation service).
Plaintiff reiterates that she is not a tax specialist and
contends that the Requests for Admission “are designed to trap the
plaintiff into admitting something she honestly does not know, and
then using the subsequent admission to attempt to exclude coverage for
what otherwise is a payable loss.”

Motion for Protective Order, p. 6.

Plaintiff further argues that she “should not be placed in a position
where she is forced to guess about information relating to her
financial activities in 2011, two years before this loss, when she had
no notice this information was going to become a part of this
litigation.”

Id.

Plaintiff again attacks the Requests for

Admissions, contending that the requests are of limited relevance,
unreasonably cumulative, and duplicative of information already
10

obtained on examination under oath.

Id. at 7-8; Plaintiff’s

Opposition, pp. 3-4; Plaintiff’s Reply, pp. 1-2.

Plaintiff also

represents that she has previously signed authorizations for defendant
to obtain plaintiff’s federal and state tax records, but that
defendant has been unable to obtain any records.
Opposition, p. 4.

Plaintiff’s

Plaintiff’s counsel represents that he has

submitted a request for tax records from the Commonwealth of
Pennsylvania and that he will provide those records to defendant if
any are received.

Id.

Plaintiff also represents that her counsel

will request her federal tax transcripts upon defendant’s payment of
the $50.00 fee associated with such a request.

Id.

Finally,

plaintiff contends that a protective order is appropriate because
“[t]he underlying question as to the relevancy of any of this
information relating to 2011 income is properly considered by the
Court at a pretrial.”

Id.

See also Plaintiff’s Reply, p. 2 (asking

for a protective order “and leaving the issue of the relevance of
these tax returns and admissibility of these tax returns for
adjudication by the trial Court at the time of trial”).
Defendant contends that the Motion for Protective Order and
Plaintiff’s Opposition are essentially untimely motions to reconsider
the Opinion and Order.

Reply, p. 5.

Plaintiff’s disclaimer of

knowledge of tax law, defendant argues, offers nothing new since the
Opinion and Order and ignores her duty under Rule 26 to make a
“reasonable inquiry.”

Reply, p. 5.

Rejecting plaintiff’s informal

representations, made by her counsel in filings on plaintiff’s behalf,
11

defendant notes that plaintiff’s Supplemental Responses do not admit
that any tax returns were filed.

Id. at 8.

In light of the prior

Opinion and Order and the deficiency of plaintiff’s Supplemental
Responses, defendant asks that its Requests for Admission be deemed
admitted.

Id. at 8-10.

This Court agrees.

As set forth in detail above, the Court previously addressed and
rejected plaintiff’s arguments regarding the relevancy of the Requests
for Admission.

See Opinion and Order, p. 9.

The Court also rejected

plaintiff’s prior reliance on her deposition testimony in challenging
the information requested by the Requests for Admission.

Id.

In

granting defendant’s motion to compel supplemental responses, the
Court concluded that “[r]esponse to these requests does not require an
understanding of the tax code and plaintiff’s objection based on her
lack of understanding of tax law therefore rings hollow.”

Id.

Plaintiff was specifically warned that her failure to supplement her
responses “will result in an order deeming the requests admitted.”
Id. at 10.

Nevertheless, plaintiff has again refused to supplement

the substance of her responses and either admit or deny the Requests
for Admission.

Based on this record, the Court concludes that

plaintiff’s Supplemental Responses are deficient and that defendant’s
Requests for Admission should be deemed admitted.

See Fed. R. Civ. P.

36(a)(6); Baker v. Cty. of Missaukee, No. 1:09-CV-1059, 2013 WL
5786899, at *5 (W.D. Mich. Oct. 28, 2013); Nurse Notes, Inc. v.
Allstate Ins. Co., No. 10-CV-14481, 2011 WL 2173934, at *5-6 (E.D.
Mich. June 2, 2011); Fraker v. Marysville Exempted Vill. Sch., No.
12

2:08-CV-58, 2009 WL 414364, at *3 (S.D. Ohio Feb. 13, 2009).
WHEREUPON, Federal Insurance Company’s Notice of Plaintiff’s
Failure to Comply With the Court’s September 2, 2015 Order, Doc. #70,
and Fed. R. Civ. P. 36(a) Request to Deem Admitted the First Set of
Requests for Admissions Propounded on Plaintiff, ECF 92, is GRANTED;
Plaintiff Tran’s Motion for Protective Order Relating to Defendant’s
Rule 36 First Requests for Admission, ECF 99, is DENIED.

Defendants’

first Requests for Admission Nos. 1 through 30 are DEEMED ADMITTED.

December 23, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

13