Cook v. Peters et al

Filing 166

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 112 Motion for Miscellaneous Relief (tjc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BRANDON M. COOK
Plaintiff,
v.
JOE PETERS, JR., in his
official and individual capacities;
STANLEY GLANZ, in his official
capacity as Sheriff of Tulsa
County; TULSA PROMENADE
LLC., a foreign limited liability
company; GLIMCHER REALTY
TRUST, a foreign real estate
trust,
Defendants.

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Case No. 13-CV-107-GKF-FHM

OPINION AND ORDER
Defendant Joe Peters, Jr.’s Motion to Withdraw Admissions Pursuant to Rule 36(b)
of the Federal Rules of Civil Procedure, [Dkt. 112], is before the court for decision. Plaintiff
has filed a response. [Dkt. 128].
Through the oversight of counsel, Defendant Peters failed to respond to Plaintiff’s
requests for admissions. Pursuant to Fed. R. Civ. P. 36(a)(3), Defendant Peters’ failure to
respond resulted in the matters being admitted.

Defendant seeks to withdraw the

admissions pursuant to Fed. R. Civ. P. 36(b).
In relevant part, Rule 36(b) provides that the court may permit withdrawal of an
admission if the withdrawal would promote the presentation of the merits of the action and
is not persuaded that it would prejudice the requesting party in maintaining or defending
the action on the merits.

Plaintiff acknowledges that withdrawal of the admissions would promote the
presentation of the merits of the action but argues Plaintiff will be prejudiced because
Plaintiff was led to believe the admissions would stand. But,
“[t]he prejudice contemplated by the Rule is not that the party
obtaining the admission must now convince the jury of the truth
of the matter. Bergemann v. United States, 820 F.2d 1117,
1121 (10th Cir. 1987). Rather, ‘the prejudice contemplated by
the rule “relates to the difficulty a party may face in proving its
case” because of the sudden need to obtain evidence required
to prove the matter that had been admitted.’” Gutting v.
Falstaff Brewing Corp., 710 F2d 1309, 1314 (8th Cir.
1983)(citations omitted).
Estell v. Williams Scotsman, Inc., 228 F.R.D. 669, 670 (N.D. Okla. 2005).
Plaintiff has not persuaded the court that Plaintiff will be prejudiced in maintaining
or defending the action on the merits if the court allows Defendant Peters to withdraw the
admissions.
Defendant Peters’ Motion to Withdraw Admissions Pursuant to Rule 36(b) of the
Federal Rules of Civil Procedure, [Dkt. 112], is GRANTED. Defendant Peters shall promptly
serve responses to the requests for admissions.
IT IS SO ORDERED this 14th day of April, 2015.

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