WYLIE v. TRANSUNION, LLC

Filing 43

MEMORANDUM OPINION AND ORDER denying 41 Motion for Leave to File; denying 29 Motion to Amend/Correct; denying 29 Motion to Withdraw, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 9/29/2017. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID C. WYLIE,
Plaintiff,
v.
TRANSUNION, LLC,
Defendant.

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Case No. 3:16-cv-102
JUDGE KIM R. GIBSON

MEMORANDUM OPINION
I.

Introduction
In this action brought under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.

(“FCRA”), Plaintiff David C. Wylie (“Wylie”) alleges that Defendant Trans Union LLC (“Trans
Union”) 1 continues to falsely and inaccurately report the status of his alleged debt owed to First
National Bank of Pennsylvania (“FNB”). (See ECF No. 11 ¶ 8.)
Pending before the Court is Wylie’s Rule 36(b) Motion to Withdraw or Amend
Responses to Defendant’s Request for Admissions (ECF No. 29) (“Rule 36(b) Motion”) and
Wylie’s Motion for Leave to File Out of Time Statement of Material Facts in Support of his
Response to Trans Union’s Motion for Summary Judgment (ECF No. 41) (“Motion to File Late
Statement”).
For the reasons that follow, both of these Motions are DENIED.
The Court notes that, while the caption refers to “TransUnion, LLC” as a single word with no space and
a comma, Trans Union itself consistently breaks its name into two words in all of its filings and does not
include a comma between “Trans Union” and “LLC.” Based on Trans Union’s Disclosure Statement (ECF
No. 7), it appears that Trans Union LLC features a space between “Trans” and “Union,” but other
parents, subsidiaries and/or affiliates are a single word without a space. See, e.g., “TransUnion
Intermediate Holdings, Inc.” In this Memorandum Opinion, the Court will follow Trans Union’s choice
of spacing and naming conventions.

1

II.

Wylie’s Rule 36(b) Motion
A. Relevant Background
Trans Union served Wylie with its First Set of Requests for Admissions (“Requests for

Admissions”) on July 21, 2016. (See ECF No. 36; ECF No. 26-6.) As conceded by his Rule 36(b)
Motion, Wylie never responded to Trans Union’s Requests for Admissions. (ECF No. 29.)
Thus, Trans Union’s Requests for Admissions were deemed admitted on August 23, 2016
because Wylie failed to respond within 30 days after being served. See Fed. R. Civ. P. 36(a)(3).
On March 3, 2017, over six months after the window to respond to Trans Union’s
Requests for Admissions expired, Wylie filed his Rule 36(b) Motion (ECF No. 29) and Brief in
Support of Rule 36(b) Motion (ECF No. 30), asking the Court to set aside Wylie’s default
admissions. Trans Union filed its Response in Opposition on March 22, 2017. (ECF No. 36.)
B. Wylie’s Argument
In his Rule 36(b) Motion and Brief in Support of Rule 36(b) Motion, Wylie argues that
the Court should allow him to withdraw or amend his default admissions because such a
withdrawal or amendment would promote the presentation of the merits of the action and
would not prejudice Trans Union because Trans Union had not filed its Answer at the time
Wylie filed his Rule 36(b) Motion. (ECF No. 29 ¶¶1-3; ECF No. 30 at 3.)
Wylie asserts that “upholding the Defendant’s deemed admissions would practically
eliminate a presentation of the merits of the case.” (ECF No. 30 at 3.) Seeking to excuse his nonresponse to the Requests for Admission, Wylie contends that “[t]he parties have been in a
holding pattern since September waiting for a definitive answer on Defendant’s Motion to
Dismiss.” (Id.) To support this “holding pattern argument,” Wylie cites to an e-mail sent by
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Trans Union in which Defense counsel wrote that Trans Union is not interested in participating
in mediation or serious settlement discussions until the Court issues its decision on Trans
Union’s Motion to Dismiss. (Id. at 3; ECF No. 30-1 at 1.)
C. Trans Union’s Argument
In its Response in Opposition, Trans Union maintains that Wylie ignored the Federal
Rules of Civil Procedures, Local Rules, the Court’s Practices and Procedures, the Court’s orders,
and case law. (ECF No. 36 at 1.) Accordingly, Trans Union believes Wylie’s Rule 36(b) Motion
should be denied. Trans Union offers three primary arguments for the denial of Wylie’s Rule
36(b) Motion.
First, Trans Union argues that there was never a “holding pattern” in this case and that
Wylie unilaterally refused to participate in discovery for over five months without ever asking
Trans Union or the Court for an extension of time to respond or filing a motion for a stay with
the Court. (Id. at 3.) In response to Wylie’s citation to the e-mail discussed supra, Trans Union
points out that this e-mail—sent two months after Wylie’s responses to the Requests for
Admissions were due—discussed the cancellation of mediation and has no bearing on Wylie’s
failure to respond to the Requests for Admissions. (Id. at 4.) Trans Union also emphasizes case
law, the language of Rule 36, orders of this Court, template forms, Local Rules, and the Practices
and Procedures of this Court which all expressly indicate that filing dispositive motions does
not automatically stay discovery. (Id. at 4-5.)

Trans Union contends that, even had Wylie

moved for a stay, it would have been inappropriate to grant a stay under these circumstances.
(Id. at 5-6.)
Second, Trans Union suggests that Wylie has failed to show the “good cause” required
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to grant his Motion. (Id. at 7-8.) To support this contention, Trans Union makes a number of
arguments that would be better left to support a motion for summary judgment. (Id.) Trans
Union also raises a “slippery slope” argument, i.e., if the Court accepted Plaintiff’s argument
that the presentation of the merits of an action are always best served by allowing a party to
withdraw admissions, then this exception would swallow Rule 36(b). (Id. at 8.)
Third, Trans Union argues that it would be prejudiced if the Court granted the Rule
36(b) Motion because discovery had been closed for over a month when the Motion was filed
and that, because of Wylie’s refusal to participate in discovery, Trans Union was unable to
depose Wylie and seek other discovery. (Id. at 9-10.) In essence, allowing Wylie to withdraw
his default admissions would require Trans Union “to begin its investigation of Plaintiff’s
claims anew, with the difficulties normally attending the passage of time, and prepare a new
defense.” (Id. at 10.) Trans Union asserts that it reasonably relied on Wylie’s admissions in its
subsequent decision not to conduct certain discovery and that the Court should not reopen
discovery “merely to accommodate Plaintiff’s prior refusal to abide by the original Scheduling
Order.” (Id.)
The Court agrees with all three of Trans Union’s arguments, but notes that the first and
third points are more relevant under the standard established by Rule 36(b).
D. The Standard for Withdrawal or Amendment of Admissions
Rule 36 sets forth the procedures for serving and responding to requests for admissions.
See Fed. R. Civ. P. 36. Failure to timely respond to such requests for admission within 30 days
of service results in the automatic admission of the matters requested. See Fed. R. Civ. P.
36(a)(3). Once admitted, the matter is “conclusively established unless the court, on motion,
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permits the admission to be withdrawn or amended.” Fed. R. Civ. P. 36(b).
Rule 36(b) establishes the standard by which courts should assess motions to withdraw
or amend admissions. 2 See id. Specifically, Rule 36(b) states, “the court may permit withdrawal
or amendment if it would promote the 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.” Id. This Court characterizes the language of Rule 36(b) as a conjunctive
two-prong test, requiring the Court to consider (1) the presentation of the merits of the action
and (2) the prejudice to the requesting party. See Pritchard v. Dow Agro Sciences, 255 F.R.D. 164,
172-74 (W.D. Pa. 2009); see also Conlon v. United States, 474 F.3d 616, 621-25 (9th Cir. 2007).
Courts have great discretion in deciding whether to permit withdrawal or amendment
of admissions. Id. (citing Altman v. Ingersoll-Rand Company, Civ. Act. No. 05-596, 2008 WL
596066, at *3 (W.D. Pa. 2008)); Conlon, 474 F.3d at 625 (holding that Rule 36(b) is permissive and
subject to only abuse of discretion review). Additionally, courts should consider the dual
emphasis of Rule 36(b) on resolving an action on the merits while upholding a party’s justified
As observed by Judge Fischer, the Court notes that some cases rely on Rule 6(b)(1)(B) in evaluating
whether an admission may be withdrawn. See Pritchard v. Dow Agro Sciences, 255 F.R.D. 164, 171 (W.D.
Pa. 2009). The Court agrees with Judge Fischer’s well-articulated reasoning and conclusion that an
untimely response (or nonresponse) to a request for an admission is best evaluated pursuant to the
standards set forth in Rule 36(b). See id. at 171-72 (quoting 8A Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 2257 (2d ed. 1994)). However, even if Rule 6(b)(1)(B) provided the
appropriate standard or an additional requirement, the Court’s decision in this matter would be
unchanged. If applicable, Rule 6(b)(1)(B) would require Wylie to establish that he missed the August 23,
2016 deadline for responding to Trans Union’s Requests for Admissions because of “excusable neglect.”
Fed. R. Civ. P. 6(b)(1)(B). Wylie has not presented any reasons to justify or excuse his neglect in failing to
respond to Trans Union’s Requests for Admissions. The only excuse offered by Wylie is that the case was
in a “holding pattern” during the pendency of Trans Union’s Motion to Dismiss. (ECF No. 30 at 3.)
However, no order of the Court or agreement by Trans Union provided for a stay or extension of time.
Of course, a party cannot unilaterally decide that a case is in a “holding pattern,” nor is discovery
automatically stayed while a motion to dismiss is pending. Thus, Wylie’s explanation of a “holding
pattern” certainly does not constitute “excusable neglect” such that an extension of time would be
appropriate under Rule 6(b)(1)(B).
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reliance on an admission. Id. (citing Altman, 2008 WL 59606, at *3).
E. Application of the Rule 36(b) Standard
Looking at the first prong of the Rule 36(b) test, the Court agrees with Wylie that
“upholding the Defendant’s deemed admissions would practically eliminate a presentation of
the merits of the case.” (ECF No. 30 at 3.) Given the content of the Requests for Admissions
and Wylie’s deemed admissions thereto, granting Wyle’s Rule 36(b) Motion likely would
promote the presentation of the merits of the action by Wylie. However, Rule 36(b) features a
two-prong, conjunctive test, and Wylie satisfies only the first of the prongs. 3
In regard to the second prong, the Court finds that Trans Union has met its burden of
showing prejudice. See Conlon, 474 F.3d at 622 (stating that the party relying on the deemed
admission has the burden of proving prejudice). Trans Union convincingly contends that, if
Wylie’s Rule 36(b) Motion were granted, the case would need to, in essence, return to the
beginning of discovery because Wylie entirely refused to respond to Trans Union’s discovery
requests or to issue his own discovery requests. (ECF No. 36 at 9-10.)
While Trans Union adhered to the Court’s orders and the Federal Rules of Civil
Procedure, Wylie simply refused to participate in discovery. The Court will not penalize Trans
Union for actively pursuing discovery and reasonably relying on Wylie’s default admissions in
choosing what discovery to pursue by granting Wylie’s Rule 36(b) Motion—a motion made
over a month after the close of discovery and over six months after the Requests for Admissions

The Court also notes that the first prong would virtually always be satisfied. If admissions were not
detrimental to the presentation of the merits of a party’s case, that party would rarely put forth the time
and effort necessary to file a motion and brief asking a court’s permission to withdraw or amend those
admissions. The “prejudice” prong of the Rule 36(b) is clearly sufficient, by itself, to deny a motion to
withdraw or amend an admission.
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were deemed admitted. Even beyond the time, expense, and evidentiary difficulties that Trans
Union would unfairly incur through the reopening of discovery were the Court to grant Wylie’s
Rule 36(b) Motion, Trans Union filed its Motion for Summary Judgment and accompanying
brief (ECF Nos. 25, 27) on February 15, 2017—21 days prior to Wylie filing his Rule 36(b)
Motion. Therefore, granting this Motion would cause Trans Union to suffer prejudice from the
need to substantially amend or supplement its Motion for Summary Judgment and
accompanying briefs to eliminate its reliance on Wylie’s admissions and to incorporate
information gathered during the second round of discovery.
In sum, it is clear to the Court that Wylie unilaterally observed a stay on discovery while
awaiting the Court’s decision on Trans Union’s Motion to Dismiss. Wylie failed to respond to
Trans Union’s discovery requests, failed to issue his own discovery requests to Trans Union,
and failed to ask Trans Union or the Court for an extension of deadlines or stay of discovery.
Such complete inaction does not come without consequences under the Federal Rules of Civil
Procedure, especially at this late stage in the proceedings when discovery and the filing of
motions for summary judgment would need to be repeated. The Court and Rule 36(b) do not
excuse Wylie’s complete failure to respond to Trans Union’s Requests for Admissions when
doing so would unfairly prejudice Trans Union. Consequently, the Court denies Wylie’s Rule
36(b) Motion.
III.

Wylie’s Motion to File Late Statement
A. Relevant Background
On February 15, 2017, Trans Union filed its Motion for Summary Judgment (ECF No. 25)

and its Statement of Materials Facts (ECF No. 26). Local Rule 56(C) mandates that, within 30
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days of service of a motion for summary judgment, the opposing party shall file a responsive
statement of material facts and a memorandum of law in opposition to the motion for summary
judgment. LCvR 56(C). On March 8, 2017, Wylie filed his Response to Trans Union, LLC’s
Motion for Summary Judgment (ECF No. 32) and his Reply Brief in Response to Trans Union,
LLC’s Motion for Summary Judgment (ECF No. 33). However, Wylie did not file his responsive
Statement of Material Facts until April 5, 2017 (ECF No. 40). This submission, which was due
on March 17, 2017 under Local Rule 56(C), was late by 19 days. On April 12, 2017, i.e., 26 days
after the deadline for the filing of his responsive Statement of Material Facts, Wylie filed his
Motion to File Late Statement (ECF No. 41). Trans Union filed its Response in Opposition on
April 21, 2017 (ECF No. 42).
Pertinent here, Local Rule 56(E) provides that alleged material facts set forth in either
party’s statement of material facts “will for the purposes of deciding the motion for summary
judgment be deemed admitted unless specifically denied or otherwise controverted by a
separate concise statement of the opposing party.”

LCvR 56(E).

Therefore, Trans Union

suggests that, for the purposes of summary judgment, all material facts set forth in Trans
Union’s Statement of Material Facts (ECF No. 37) are deemed admitted due to Wylie’s failure to
timely deny or otherwise controvert them. (ECF No. 42 ¶5.)
B. Wylie’s Argument
Hoping to avoid these deemed admissions, Wylie’s barely-two-page Motion to File Late
Statement asks the Court to grant him leave under Rule 6(b)(1)(B) to file its responsive
Statement of Material Facts out of time.

(See ECF No. 41 at 1.)

Wylie did not file an

accompanying brief in support of his Motion to File Statement. Wylie’s short Motion notes that
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Rule 6(b)(1)(B) permits extensions of time after the designated time period has expired if the
party failed to act because of excusable neglect. (Id. ¶ 3.) To argue that Rule 6(b)(1)(B) applies
to his late Statement of Material Facts, Wylie states only that he “believes that the failure to file
their Statement of Material Fact due to a clerical error was excusable neglect.” (Id. ¶ 4.) Wylie
provides no further details or explanation.
C. Applicable Standard
Wylie correctly observes that Rule 6(b)(1)(B) provides that “[w]hen an act may or must
be done within a specified time, the court may, for good cause, extend the time . . . on motion
made after the time has expired if the party failed to act because of excusable neglect.” Fed. R.
Civ. P. 6(b)(1)(B). “[T]he determination of whether a party’s neglect is excusable has been held
to be an equitable determination, in which [courts] are to take into account all the relevant
circumstances surrounding a party’s failure to file timely.” Nesselrotte v. Allegheny Energy, Inc.,
Civil Action No. 06-01390, 2009 WL 230703, at *9 (W.D. Pa. Jan. 30, 2009) (Fischer, J.) (quoting In
re Diet Drugs Prods. Liab. Litig., 401 F.3d 143, 153 (3d Cir. 2005)).
More specifically, the U.S. Supreme Court has directed courts to look at four factors
when considering whether a party’s neglect is excusable: (1) the danger of prejudice to the
opposing party, (2) the length of delay and its potential impact on the proceedings, (3) the
reason for the delay, and (4) whether the movant acted in good faith. See Pioneer Inv. Serv. Co. v.
Brunswick Assocs. P’Ship, 507 U.S. 380, 395 (1993).
The Court will apply each of these four factors in turn.

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D. Application of the Four-Part Pioneer Test
1. Danger of Prejudice to Trans Union
Under the first prong, Trans Union argues that it is prejudiced by Wylie’s delay because
Trans Union filed its Reply in Support of its Motion for Summary Judgment (ECF No. 37) on
March 22, 2017. (See ECF No. 42. ¶ 13.) This filing occurred 5 days after Wylie’s Statement of
Material Facts was due on March 17, 2017, 14 days before Wylie filed his Statement of Material
fact on April 5, 2017, and 21 days before Wylie filed his Motion to File Late Statement on April
12, 2017. Trans Union asserts that allowing Wylie to submit his Statement of Material Facts
would prejudice Trans Union by requiring the expenditure of time and fees to redraft its Reply
and further “drag out these already-delayed proceedings and add to Trans Union’s costs, where
Plaintiff has done nothing to this point in the presentation of the case.” (Id.)
The Court agrees with Trans Union that granting Wylie’s Motion to File Late Statement
would likely merit redrafting and refiling of Trans Union’s Reply, leading to additional costs
and further delay for Trans Union. The Court does not view this prejudice to be particularly
severe, but does find the first prong of the Pioneer test to weigh slightly in favor of denying the
Wylie’s Motion to File Late Statement because of this prejudice.
2. The Length of Delay and its Potential Impact on the Proceedings
Under the second prong, Trans Union identifies the length of Wylie’s delay as 26 days,
measured from the date Wylie’s Statement of Material Facts was due until the date Wylie’s
Motion to File Late Statement was filed. (ECF No. 42 ¶ 14.)
The Court agrees that Wylie filed his Motion to File Late Statement 26 days after his
Statement of Material Facts was due. The Court also recognizes that, if the Motion were
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granted, the proceedings would be further delayed to allow supplemental or amended briefing
to accommodate for the loss of the no-longer-automatically-admitted assertions included within
Trans Union’s previously uncontested Statement of Material Facts. Thus, the second prong
weighs slightly in favor of denying the Wylie’s Motion to File Late Statement because of the 26day delay in the request and the likely delay for the remainder of the proceedings.
3. The Reason for the Delay
Under the third prong, Trans Union first cites two federal appellate decisions which
emphasize that the “reason for the delay and whether it was within the reasonable control of
the movant” have the “greatest import” of the four Pioneer factors. See Graphic Commc’ns. Int’l
Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5 (1st Cir. 2001); Lowry v.
McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000). Trans Union then stresses that
Wylie’s only explanation of his delay is to describe it as a “clerical error” and that nothing
suggests that this clerical error was excusable or reasonable. (ECF No. 42 ¶ 15.) Trans Union
also cites cases to support the proposition that ordinary neglect and technical problems do not
constitute excusable neglect. See Fryer v. Enter. Bank, No. 2:06-cv-0550, 2006 WL 3052165, at *5
(W.D. Pa. Oct. 23, 2006) (Hardiman, J.); Smith v. Look Cycle USA, 933 F. Supp. 2d 787, 791-92
(E.D. Va. 2013).
The Court concurs that a number of courts have viewed the third prong as the most
important of the Pioneer factors. See In re Straub, Civil Action No. 14-6607, 2015 WL 1279510, at
*2 n.5 (E.D. Pa. Mar. 19, 2015); Stitzel v. Guarini, No. CIVA 03-4760, 2006 WL 1805972, at *5 (E.D.
Pa. June 27, 2006); see also In re American Classic Voyages Co., 405 F.3d 127, 134 (3d Cir. 2005)
(relying primarily on the third factor under the facts of the case without indicating that the third
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factor must always be the most important factor). Although the Court does not hold that the
third-prong must be the most important factor in all cases, the Court finds the third factor to
have the most weight in the present case because Wylie’s proffered reason for his delay of a
“clerical error” is wholly inadequate. Wylie offers no explanation as to why the clerical error
occurred, no indication of procedures in place to prevent clerical errors of this sort, no
description of how this clerical error may have been particularly understandable given exigent
circumstances, or any other information to suggest that this clerical error was reasonable or
excusable. A nonspecific “clerical error” is not a satisfactory reason for failing to file a clearlymandated document with the Court.
Moreover, in pre-Pioneer cases, the U.S. Court of Appeals for the Third Circuit
considered additional factors—which, depending on a given case’s articulation of the factors,
appear to vary from three to six factors. 4 As a general matter, these pre-Pioneer factors have
been subsumed into the Pioneer test and, thus, are of little concern. See Ragguette v. Premier
Wines & Spirits, 691 F.3d 315, 327 (3d Cir. 2012). However, some courts have found it helpful to
use some of these pre-Pioneer factors as sub-factors in analyzing the more general concept of
“reason for delay.” See, e.g., Nesselrotte, 2009 WL 230703, at *9; Routes 202 & 309 & Novelties
Gifts, Inc. v. Kings Men, Civil Action No. 11-5822, 2014 WL 899136, at *5 (E.D. Pa. 2014). In
These pre-Pioneer factors include: (1) whether the inadvertence reflects professional incompetence such
as ignorance of the rules of procedure; (2) whether the asserted inadvertence reflects an easily
manufactured excuse incapable of verification by the court; (3) whether the tardiness results from
counsel’s failure to provide for a readily foreseeable consequence; (4) whether the inadvertence reflects a
complete lack of diligence; or (5) whether the court is satisfied that the inadvertence resulted despite
counsel's substantial good faith efforts toward compliance. See Consolidated Freightways Corp of Delaware
v. Larson, 827 F.2d 916, 919 (3d Cir. 1987) (internal citations omitted). A sixth applicable factor identified
by some cases is “whether the enlargement of time will prejudice the opposing party.” Ragguette v.
Premier Wines & Spirits, 691 F.3d 315, 326 (3d Cir. 2012) (quoting Dominic v. Hess Oil V.I. Corp., 841 F.2d
513, 517 (3d Cir. 1988)).
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particular, the Third Circuit has noted that when the moving party has claimed excusable
neglect based on inadvertence, district courts may also look to whether: (1) the inadvertence
reflected professional incompetence; (2) it is an excuse incapable of verification by the court;
and (3) the reason demonstrates a complete lack of diligence. See Nesselrotte, 2009 WL 230703, at
*9 (citing Welch & Forbes, Inc. v. Cendant Corp. (In re Cendant Corp. Prides Litig.), 233 F.3d 188, 196
n.8 (3d Cir. 2000)).
Because Wylie’s only stated reason for his delay in filing his Statement of Material facts
was “due to a clerical error” (ECF No. 41 ¶ 1), Wylie appears to be arguing that his behavior
constituted excusable neglect based on inadvertence. Thus, the Court will apply the three subfactors referenced supra. First, a clerical error that results in the failure to file a rule-mandated
concise statement of material facts that leads to potentially dispositive automatic admissions
that go to the heart of a case certainly may reflect professional incompetence. 5 Second, the
“clerical error” excuse is wholly incapable of verification by the Court. Third, a clerical error of
this magnitude, especially given the total lack of participation throughout discovery,
demonstrates a lack of diligence. 6 Therefore, all three of these sub-factors and the entire third
prong of the Pioneer test strongly favor a denial of Wylie’s Motion to File Late Statement. A
single sentence referring to a nonspecific “clerical error,” without more, does not excuse failure

The Pennsylvania Rules of Professional Conduct provide that “[a] lawyer shall provide competent
representation to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.” Pa. R.P.C. 1.1. “Ignorance of the rules of
procedure” constitutes professional incompetence. Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d
Cir. 1988).
6 The Court is reluctant to penalize Mr. Wylie for his counsel’s apparent lack of diligence. See Nesselrotte,
2009 WL 230703, at *10. However, “a client cannot always avoid the consequences of the acts or
omissions of its counsel.” Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (citing Link v.
Wabash Railroad, 370 U.S. 626, 633 (1962)).
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to file a required statement of material fact, failure to move for an extension of time for 26 days,
and the prejudice the opposing party would suffer by granting the Motion to File Late
Statement
4. Whether the Movant Acted in Good Faith
Under the fourth and final prong, Trans Union asserts that Wylie has offered no
explanation for his motives other than that “he ‘believes’ his delay is excusable.” (ECF No. 42 ¶
16.) Furthermore, Trans Union suggests that “it is suspicious” that Wylie did not file its Motion
to File Late Statement until after Trans Union filed its Reply, which noted the absence of Wylie’s
Material Statement, and Trans Union notified Wylie of the missing responsive Material
Statement.
The Court lacks adequate information to make a firm conclusion as to Wylie’s good faith
in this matter. Wylie’s refusal to participate in discovery may evince some level of bad faith,
but the information presented to the Court suggests that Wylie’s inaction was motivated by a
misguided notion of the existence of a “holding pattern” rather than bad faith. Additionally,
the Court does not agree with Trans Union that “it is suspicious” that Wylie did not file his
Motion to File Late Statement until after Trans Union filed its Reply and notified Wylie of its
missing statement. After these “reminders” from Trans Union, Wylie filed its Motion to File
Late Statement. Rather than evincing “bad faith,” this chain of events supports a conclusion
that Wylie was either unaware of the requirements of the Local Rules or made some other
mistake—such as a “clerical error”—that resulted in missing the deadline. This failure to act
before receiving Trans Union’s “reminders” suggests that Wylie made a serious mistake or
failed to read and adhere to the Local Rules—not that Wylie acted in bad faith. Thus, while it is
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of little consequence given the great weight of the Court’s determinations on the prior three
factors, this final factor does not weigh significantly in favor of either party’s position.
5. The Pioneer Factors Weigh in Favor of Denial of the Motion to File Late Statement
In sum, the first two prongs of the Pioneer test weigh slightly in favor of denying Wylie’s
Motion to File Late Statement because Trans Union would suffer some prejudice from
additional expense and some delay would occur. The fourth prong is largely neutral, weighing
very little in favor of either party because nothing before the Court meaningfully suggests that
Wylie acted in bad faith. Most importantly, the third factor strongly weighs in favor of denying
the Motion to File Late Statement because an unexplained “clerical error” is a thoroughly
unsatisfactory reason for failure to adhere to a Local Rule of this Court, especially given the 26day delay in seeking to remedy this non-response and the opposing party’s reasonable reliance
on the admission resulting from this non-response. The Pioneer factors clearly weigh in favor of
denying Wylie’s Motion to File Late Statement, and, accordingly, the Court denies the Motion.
IV.

Conclusion
The Court denies Wylie’s Rule 36(b) Motion (ECF No. 29) because of the significant

prejudice that Trans Union would suffer if the Motion were granted. Furthermore, the Court
denies Wylie’s Motion to File Late Statement (ECF No. 41) because the Pioneer factors strongly
weigh in favor of denial.

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IN THE UNITED ST ATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID C. WYLIE,

)

Case No. 3:16-cv-102

)

Plaintiff,

)

JUDGE KIM R. GIBSON

)

v.

)

)

TRANSUNION, LLC,

)
)

Defendant.

)

ORDER
NOW, this 29th day of September 2017, upon consideration of Defendant's Motions
(ECF Nos. 29, 41) and for the reasons set forth in the Court's accompanying Memorandum
Opinion, it is HEREBY ORDERED that Wylie's Rule 36(b) Motion to Withdraw or Amend
Responses to Defendant's Request for Admissions (ECF No. 29) and Wylie's Motion for Leave
to File Out of Time Statement of Material Facts in Support of his Response to Trans Union's
Motion for Summary Judgment (ECF No. 41) are DENIED.

BY THE COURT:

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE