Miranda v. Deloitte LLP et al

Filing 199

MEMORANDUM AND ORDER re 146 Motion for Miscellaneous Relief; re 151 Motion for Reconsideration; re 183 Motion to Strike; and re 184 Motion Requesting Order. Plaintiff's motion for reconsideration, (Docket 151), is DENIED IN PART AND GRA NTED IN PART. The Court DENIES plaintiff's requests no. 1, 5, 6, 8, and 10, and GRANTS plaintiff's requests no. 3 and 14. Sanctions against plaintiff regarding her requests no. 3 and 14 are VACATED. Defendants' motion to strike plai ntiff's reply, (Docket 183), is DENIED. Defendants' motion to announce an expert witness, (Docket 146), is DENIED at this time. Plaintiff's motion requesting an order to deem admitted all matters included in her requests for admissio ns, (Docket 184), is DENIED. The Court GRANTS all defendants until 5:00 p.m. on August 26, 2013 to either admit or deny plaintiff's requests for admissions. Signed by Judge Francisco A. Besosa on 08/22/2013. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
WANDA G. MIRANDA,
Plaintiff,
CIVIL NO. 12-1271 (FAB)

v.
DELOITTE LLP, DELOITTE TAX LLP,
DELOITTE & TOUCHE LLP, DELOITTE
SERVICES
LLP,
FRANCISCO
A.
CASTILLO-PENNE, RICARDO VILLATEPRIETO,
MICHELLE
CORRETJERCATALAN, JOHN DOE, RICHARD DOE,
ABC, DEF INSURANCE COMPANIES,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Before the Court are:
1.

Plaintiff

Wanda G.

Miranda

(“Miranda”)’s

motion

for

reconsideration of the Court’s Order at Docket 118, (Docket 151);
the motion in opposition filed by defendant Deloitte Tax LLP,
(Docket

175);

plaintiff

Miranda’s

reply,

(Docket

181);

and

defendant’s motion to strike plaintiff’s reply, (Docket 183);
2.

the motion for leave to announce an expert witness filed

by all defendants, (Docket 146); plaintiff Miranda’s opposition,
(Docket 147);

and

the

briefs

in

compliance

with

the

Court’s

July 23, 2013 Order filed by defendants and plaintiff Miranda,
(Dockets 165 and 167, respectively); and
3.

plaintiff’s motion to deem her requests for admission

admitted, (Docket 184); and defendants’ opposition, (Docket 185).

Civil No. 12-1271 (FAB)

2

Having considered all documents referenced above, the Court
DENIES

IN

PART

AND

GRANTS

IN

PART

plaintiff’s

motion

for

reconsideration, (Docket 151); DENIES defendants’ motion to strike
plaintiff’s reply, (Docket 183); DENIES defendants’ motion to
announce an expert witness, (Docket 146); and DENIES plaintiff’s
motion to deem admitted all matters included in her requests for
admissions, (Docket 184).
I.

MOTION FOR RECONSIDERATION
On February 28, 2013, plaintiff Miranda served defendant

Deloitte Tax, LLP with a second production request, which defendant
Deloitte Tax answered on April 6, 2013.

(Docket 79 at 1.)

In good

faith, pursuant to Local Rule 26, the parties conferred to discuss
plaintiff’s objections to the defendant’s answers.

They were

unable to resolve their issues, however, and plaintiff subsequently
submitted a motion to compel with six requests.

(Docket 79.)

On

July 8, 2013, the Court entered an order denying the motion to
compel and sanctioning plaintiff $500.

(Docket 118.)

Plaintiff

has filed a motion for reconsideration of the Court’s order.
(Docket 151.)

Civil No. 12-1271 (FAB)

3

Defendant Deloitte Tax LLP argues that plaintiff’s motion for
reconsideration is brought pursuant to Fed. R. Civ. P. 59(e).1
“Generally, Rule 59(e)’s legal standards will be applied to motions
for reconsideration of interlocutory orders.”

Sanchez-Medina v.

Unicco Serv. Co., 265 F.R.D. 29, 32 (D.P.R. 2010) (Arenas, J.)
(internal quotations and citations omitted).

The First Circuit

Court of Appeals has held, however, that “Rule 59(e) does not apply
to motions for reconsideration of interlocutory orders from which
no

immediate

appeal

may

be

taken.”

Nieves-Luciano

v.

Hernandez-Torres, 397 F.3d 1, 4 (1st Cir. 2005) (emphasis added).
“A discovery order is[] . . . an interlocutory order in the course
of proceedings [that] is not appealable.”

8 The Late Charles Alan

Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and
Procedure § 2006 (3d ed. 2010).

Accordingly, plaintiff’s motion

cannot be evaluated under Rule 59(e)’s standard.

Instead, “the

decision as to whether or not to reconsider [the Court’s previous
order regarding discovery] . . . falls squarely within the plenary
power of the court that issued the initial ruling, this Court.”

1

Pursuant to Rule 59(e), a party moving for reconsideration
of a court order “must either clearly establish a manifest error of
law or must present newly discovered evidence” in order to prevail.
Markel Am. Ins. Co. v. Diaz–Santiago, 674 F.3d 21, 32 (1st Cir.
2012) (internal quotations and citation omitted); see also Marie v.
Allied Home Mortg. Corp., 402 F.3d 1, 7 n.2 (1st Cir. 2005)
(recognizing that the four reasons for granting a Rule 59(e) motion
are: “manifest errors of law or fact, newly discovered or
previously unavailable evidence, manifest injustice, and an
intervening change in controlling law”) (internal citation
omitted).

Civil No. 12-1271 (FAB)

4

Portugues-Santa v. B. Fernandez Hermanos, Inc., 614 F. Supp. 2d
221, 226 (D.P.R. 2009) (Besosa, J.) (citing Campos v. P.R. Sun Oil
Co., 536 F.2d 970, 972 n.6 (1st Cir. 1976)).

That inherent power

is not governed by rule or statute and takes root in the court’s
equitable power to “process litigation to a just and equitable
conclusion.”

In Re Villa Marina Yacht Harbor, Inc., 984 F.2d 546,

548 (1st Cir. 1993).

Ordinarily, “when reconsideration of an

earlier ruling is requested, the district court should place great
emphasis upon the ‘interests of justice.’”

United States v.

Roberts, 978 F.2d 17, 21 (1st Cir. 1992).2
A.

Plaintiff’s Duplicative Discovery Requests
Throughout

the
that

discovery phase,
plaintiff’s

the

defendants

discovery

requests

have

consistently

argued

are

repetitive.

The Court has already agreed and has sanctioned

plaintiff $600 for “continuing to insist that the discovery be
answered when [it] already has been,” (Docket 80 at 2), in addition
to the $500 in sanctions that plaintiff moves to reconsider today
for “insisting on the[] production [of five requests] even though
they have been previously produced,” (Docket 118 at 1).
again,

2

the

Court

finds

many

of

plaintiff’s

requests

Once
for

Similarly, pursuant to Fed. R. Civ. P. 54(b), a district
court enjoys the power to afford relief from interlocutory orders
“as justice requires.” Greene v. Union Mut. Life Ins. Co. of Am.,
764 F.2d 19, 22 (1st Cir. 1985) (citations omitted).

Civil No. 12-1271 (FAB)

5

reconsideration to be duplicative and DENIES her motion with regard
to those requests:
First,

“request

no.

1”

advances

the

same

factual

arguments regarding plaintiff’s reasons for desiring the April 21,
2011 time reports of Deloitte Tax LLP’s upper managers as her
arguments contained in the original motion to compel.
Nos. 79 & 151.)

(See Docket

From plaintiff’s submission, the Court can glean

no additional reason why its initial decision should be changed.
Plaintiff’s motion to reconsider as to request no. 1, therefore, is
DENIED.
Second, plaintiff’s arguments regarding “requests no. 5,
6, and 8” also merely echo the same contentions from her motion to
compel.

(See Dockets 79, 151, & 181.)

Defendant Deloitte Tax LLP

has explained to plaintiff that it believes the documents produced
in response to requests no. 11, 12 and 13 of plaintiff’s first
request for production of documents “[are] also responsive to
Request for Production of Documents Nos. 5, 6, and 8.”

(Docket 98-

1 at 2.) After consulting the wording of those discovery requests,
the Court agrees that the documents sought in plaintiff’s “requests
no. 5, 6, and 8” of the motion to compel do fall within the more
generalized “requests no. 11, 12, and 13” from her requests for
production of documents.

(See Docket 181 at 4–5.)

Thus, the

documents produced in response to requests no. 11, 12, and 13 are
the responsive documents to plaintiff’s requests no. 5, 6, and 8.

Civil No. 12-1271 (FAB)

6

Defendant Deloitte Tax LLP guarantees that it has turned over all
documentation in its possession that are responsive to plaintiff’s
requests.
by

(Docket 98-1 at 2) (“[A]s has been repeatedly indicated

counsel

.

.

.

the

documentation

already

provided

is

the

documentation that we have available.”). The Court takes this time
to remind defendants of their continuing duty to supplement their
responses to plaintiff’s discovery requests.
26(e).

Fed. R. Civ. P.

In light of that rule, plaintiff may rest assured that

defendants have a continuing duty to produce (1) any communication
between

Mrs.

January

1,

Maria

2010

performance

or

Vilorio

through
lack

of

and

May

25,

Mr.

Francisco

2011

performance;

Castillo

regarding
(2)

any

from

plaintiff’s
response

by

Mr. Francisco Castillo to the email sent by Maria Vilorio to
Mr.

Francisco

communication

Castillo
between

on

October

5,

2010;

and

(3)

Tere

Pascual

and

Maria

Vilorio

any
from

January 1, 2010 and May 25, 2011 regarding plaintiff’s performance
or lack of performance.

Fed. R. Civ. P. 26(e).

A defendant’s

failure to disclose or supplement its responses to discovery
requests will result in sanctions against it.
P. 37(c).

See Fed. R. Civ.

Accordingly, the Court DENIES plaintiff’s motion as to

requests no. 5, 6 and 8.
Third, in her “request no. 10,” plaintiff seeks “the
policies or Administrative Policy Releases (‘APRs’)” applicable to
2009,

2010,

and

2011

which

contain

Deloitte’s

guidelines

or

Civil No. 12-1271 (FAB)

7

policies for preparation and submission of billings.
Deloitte

Tax

LLP

claims

that

the

request

is

Defendant
“vague

and

unintelligible,” but nonetheless directs plaintiff to a previously
produced document bates-stamped 2342-2344, which it claims pertains
to “the matter of billings.”

(Docket 98 at 10.)

In her motion for

reconsideration, plaintiff again demands the APRs and states that
the documents bate-stamped 2342-2344 do not constitute APRs.

Like

plaintiff, the Court finds plaintiff’s request for the production
of “APRs pertaining to fiscal years 2009, 2010 and 2011” to be
clearly drafted.

By producing the mere documents bates-stamped

2342-2344 in response to that request, however, defendant Deloitte
Tax LLP has represented both to her and to the Court that those
documents are the only responsive documents in their possession.3
As a result of defendant’s representation, the Court stands by its
previous finding that the information plaintiff requests has been
previously produced.

Accordingly, plaintiff’s motion reconsider

request no. 10 is DENIED.
B.

Reconsideration of Plaintiff’s Requests No. 3 and 14
Plaintiff seeks various individuals’ mid-year and year-

end performance evaluations for 2009, 2010 and 2011 in her “request
no. 3.”

Defendant Deloitte Tax LLP objected to the request as

overbroad and irrelevant, and the Court initially denied the

3

The Court reiterates that pursuant to Fed. R. Civ. P. 26(e)
and 37 (c), the defendant retains a continuing duty to supplement
all documents responsive to plaintiff’s request.

Civil No. 12-1271 (FAB)

8

request for failure to establish the reports’ relevance.

(Docket

118 at 1.) Plaintiff’s motion for reconsideration, however, offers
sufficient support for the Court to conclude now that the requested
evaluations pertain to employees who are or were similarly situated
to plaintiff.

Plaintiff represents that the testimony of Maria

Vilorio demonstrates that those employees were the managers and
senior managers at Deloitte Tax LLP who “did, on a daily basis, the
same type of work as Mrs. Miranda did[,] they were evaluated under
the same procedures[,] and us[ed] the same forms and ratings.”
(Docket 151 at 4.)

Taken together, that the employees worked at

the same time as plaintiff; that they held similar positions to
plaintiff;

and

that

they

were

subjected

to

the

same

review

procedures as plaintiff, all substantiate plaintiff’s contention
that they are sufficiently similarly situated for the purpose of
finding

their

evaluations

relevant4

discrimination and retaliation claims.

to

plaintiff’s

employment

Accordingly, plaintiff’s

motion for reconsideration as to request no. 3 is GRANTED and the
sanction for that request is VACATED.

Defendant Deloitte Tax LLP

is ORDERED to produce all documents responsive to plaintiff’s
request no. 3.
Plaintiff’s “request no. 14” is for Deloitte Tax LLP’s
Code of Ethics and Professional Conduct for fiscal years 2009,
4

Information need only “appear[] reasonably calculated to
lead to the discovery of admissible evidence” to be relevant for
discovery purposes. Fed. R. Civ. P. 26(b)(1).

Civil No. 12-1271 (FAB)
2010,

and

2011.

9

Defendant’s

response

referenced

previously

submitted documents bates-stamped 2409-2433 as the only responsive
documents to that request.

(Docket 98 at 10-11.)

Plaintiff’s

motion to compel argued, however, that defendant’s response was
incomplete due to an outstanding APR 205 issued on February 2010
that “was not produced.”
defendant

Deloitte

Tax

(Docket 79 at 8.)
LLP

directly

In its opposition,

responded

to

plaintiff’s

concern by referencing three versions of APR 205 Code of Ethics and
Professional Conduct, and by explaining that “the document produced
at bates numbers 2411-2412 is APR 205 issued on February 2010,
which was what plaintiff sought through her objections.”
98 at 11.)

(Docket

In her motion for reconsideration, plaintiff continues

to claim that defendants “have a link to obtain the APR 205 issued
on February 2010 . . . but the document was not produced.”
151 at 7.)

(Docket

Upon review of the record before it, the Court finds

that defendant Deloitte Tax LLP has fully complied with plaintiff’s
request no. 14.

Not only did it submit a copy of the Code of

Ethics and Professional Conduct for Deloitte Tax LLP, (bates-stamp
2415), but it also produced the APR 205 issued on February 2010,
(bates-stamp

2411),

which

is

the

plaintiff’s objection was grounded.

sole

document

upon

which

Moreover, the defendant has

explained that a document plaintiff now seeks — a document that was
referenced in APR 205 and titled “Code of Ethics and Professional
Conduct for Deloitte Tax LLP” — “was already produced to plaintiff

Civil No. 12-1271 (FAB)

10

at bates numbers 2415-2433.” (Dockets 175 at 8–10; 98 at 11; 153-2
at 1–2.)

Defendant also explains that plaintiff is mistaken in

believing that the Code of Ethics document was revised in February
2010 and that a separate document exists but has not yet been
produced:
APR 205 and the Code of Ethics are two separate
documents. The fact that APR 205 refers to a document
does not mean that said document was also revised on that
same date. As such, the fact that the Code of Ethics is
referenced to in APR 205 does not mean that they were
both revised at that time. Here, APR 205 dated February
2010 simply refers to a Code of Ethics, which, in turn,
indicates that it was revised on May 2008.
(Docket 175 at 9.)

As stated above, defendant Deloitte Tax LLP

makes such representations subject to Fed. R. Civ. P. 26(e) and 37.
The Court understands why confusion might have arisen that another
outstanding document possibly existed, however, given that the two
separate documents share the same title — “Code of Ethics and
Professional Conduct” — and one indicates a revision date of
February 2010.

(See Dockets 153-1 and 153-2.)

Accordingly, the

Court GRANTS plaintiff’s motion as to request no. 14 and VACATES
the corresponding sanction.
II.

REQUEST FOR EXPERT WITNESS
On June 19, 2013, the Court granted defendants’ motion to

compel plaintiff’s complete tax returns for 2007 through 2011.
(Docket

80.)

Upon

reviewing

the

documents

which

plaintiff

eventually — albeit belatedly — produced, the defendants claim to
have “c[o]me across evidence, not previously known to them, that

Civil No. 12-1271 (FAB)

11

suggests that plaintiff reported false information to the Puerto
Rico tax authorities.”
“[p]laintiff’s

(Docket 146 at 1.)

conduct,

beyond

Defendants claim that

constituting

perjury,

was

in

violation of defendants’ Code of Ethics and Professional Conduct
and against established guidelines regulating Certified Public
Accountant (“CPA”) professionals.”

Id. at 1–2.

Alleging that

“[h]ad this information been available to defendants at the time of
the events alleged in the Complaint, it would have been sufficient
grounds to justify plaintiff’s termination,” the defendants amended
their complaint to invoke an “after-acquired evidence” defense.5
Id. at 2; Docket 119.
At plaintiff’s second deposition, she allegedly testified
“that

she

completed

her

tax

returns

in

accordance

with

her

‘understanding’ of the Puerto Rico Tax Code and her experience as
a tax professional.”

(Docket 146 at 2.)

With the intention of

proving “that plaintiff’s ‘understanding’ of the Puerto Rico Tax
Code is grossly inadequate and that her conduct was dishonest and

5

The defendants amended their answer by adding the following
affirmative defense:
Subsequent
to
Plaintiff’s
termination, Defendants
acquired evidence of dishonest misconduct on the part of
Plaintiff which would have justified her termination
under Defendants’ Code of Ethics and Professional
Conduct. Accordingly, in the event Plaintiff prevails in
her claims, she is not entitled to reinstatement or other
equitable relief, and the calculation of damages should
be limited as appropriate.
(Docket 119 at 22.)

Civil No. 12-1271 (FAB)

12

in violation of established professional standards,” defendants
move for leave to announce an expert witness who is specialized in
the field of tax law, tax return procedures and accepted standards
of

the

CPA

profession.

(Docket

146.)

Plaintiff

opposed

defendants’ motion, arguing that the defendants fail to establish
(1) plaintiff’s alleged dishonest conduct; (2) the relevance of her
personal income tax returns; and (3) any employment policy that
supports the conclusion that an employee like plaintiff Miranda
could have been terminated for issues related to the filing of an
individual tax return.

(Docket 147; 167.)

The Supreme Court has held that after-acquired evidence of an
employee’s wrongdoing is not relevant for the purposes of employer
liability.

McKennon v. Nashville Banner Publishing Co., 513 U.S.

352, 362–63 (1995) (finding that when an employee’s misconduct “was
not discovered until after she had been fired[,] . . . [the
employer] could not have been motivated by knowledge it did not
have and it cannot now claim that the employee was fired for the
nondiscriminatory
considered,

reason”).

however,

when

After-acquired
ascertaining

a

evidence
proper

may

be

remedy.

Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 101 (1st Cir. 1997)
(“[A]fter-acquired evidence is normally admissible only as to
remedy, and not on liability.”).

Accordingly, any after-acquired

evidence defendants seek to admit in this case would be limited to

Civil No. 12-1271 (FAB)
the

purpose

of

calculating

13
the

remedy

to

plaintiff

—

it

is

inadmissible as evidence regarding employer liability.
In order to rely upon the after-acquired evidence doctrine, an
employer “must first establish that the wrongdoing was of such
severity that the employee in fact would have been terminated on
those grounds alone if the employer had known of it at the time of
the discharge.”

McKennon, 513 U.S. at 362–63.

A court must look

to “the employer’s actual employment practices and not merely the
standards articulated in its manuals” when evaluating whether the
employee in fact would have suffered the adverse employment action.
Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir. 2004).

Because

“employers often say they will discharge employees for certain
misconduct while in practice they do not,” Palmquist v. Shinseki,
729 F. Supp. 2d 425, 429-30 (D. Me. 2010) (internal citation
omitted), an employer must establish by a preponderance of the
evidence “not only that it could have fired an employee for the
later-discovered misconduct, but that it would in fact have done
so.”

O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 759

(9th Cir. 1996) (emphasis in original); Id. at 762 (“This does not
mean that employers can prevail based only on bald assertions that
an employee would have been discharged for the later-discovered
misconduct.”); see also Adams v. City of Gretna, 2009 U.S. Dist.
LEXIS 79014 at *21 (E.D. La. Sept. 2, 2009) (“An employer must
demonstrate, by a preponderance of the evidence, that its actual

Civil No. 12-1271 (FAB)

14

employment practices would have led to the employee’s termination,
not simply that the employee’s conduct was in contravention of the
employer’s stated policies.”).
The issues of whether plaintiff Miranda engaged in misconduct
and whether the conduct was so severe that defendants would have
terminated plaintiff are questions of fact to be resolved by the
jury.

See Palmquist, 729 F. Supp. 2d at 430 (citing Davidson v.

Mac Equip., Inc., 1995 U.S. Dist. LEXIS 4711, *8 (D. Kan. Mar. 6,
1995) (questions of fact remain regarding whether the plaintiff
actually engaged in misconduct); Roalson v. Wal-Mart Stores, 10 F.
Supp. 2d 1234, 1236 (D. Kan. 1998) (questions of fact remain
regarding whether alleged behavior was serious enough to preclude
plaintiff’s hire); Wehr v. Ryan’s Family Steak Houses, 1996 U.S.
App. LEXIS 26766, *8-9 (6th Cir. 1996) (stating whether employer
satisfied

its burden

under

McKennon

is

a question

of

fact);

Femidaramola v. Lextron Corp., 2006 U.S. Dist. LEXIS 67047, *21-22
(S.D. Miss. Sept. 18, 2006) (stating that the after-acquired
evidence

doctrine

involves

question

of

fact)).

Nonetheless,

defendant Deloitte Tax LLP itself admits that “[t]he discovery
rules are not intended as a broad license to mount serial fishing
expeditions,” (Docket 98 at 3) (citing Aponte-Torres v. Univ. of
P.R., 445 F.3d 50, 59 (1st Cir. 2006)), and the Supreme Court
acknowledges a serious limitation of the after-acquired evidence
doctrine: an employer might “undertake extensive discovery into an

Civil No. 12-1271 (FAB)

15

employee’s background or performance on the job to resist claims .
. . .”

McKennon, 513 U.S. at 362–63.

The Court regards the

defendants’ scrutiny of plaintiff’s individual tax returns and
subsequent request to announce a tax law expert as precisely the
type of suspect “fishing expedition” against which courts caution.
Defendants admit that their intent “is for the expert to explain
that, in light of her preparation and her expertise, her conduct as
it relates to her tax returns violates the[] codes which regulate[]
her profession.”

Given that the defendants have not named any

alleged misconduct that occurred on the job, or any employment
policy

indicating

that

an

employee’s

individual

tax

return

preparation and submission are relevant to or somehow affect his or
her job security at Deloitte, the need for an expert witness
appears tenuous at best. At this time, therefore, the Court DENIES
defendants’ motion to announce an expert witness, (Docket 146).
III. MOTION TO ADMIT
On May 31, 2013, plaintiff served individual requests for
admission to defendants Deloitte Tax LLP, Deloitte Services LP,
Deloitte &

Touche

LLP,

and

Francisco

Castillo.

The

parties

conferred to discuss defendants’ objections to the requests and
agreed to stay the running of the 30-day period to respond until
July 2, 2013.

(Docket 184.)

On July 2, 2013, plaintiff served

Deloitte Tax LLP with a revised request for admission.

She did not

amend or withdraw her requests to the other defendants.

All

Civil No. 12-1271 (FAB)

16

defendants filed a joint motion for protective order on July 17,
2013, (Docket 134), and the Court denied the motion on July 26,
2013, (Docket 180).

Both parties acknowledge that as of the date

of this Memorandum and Order, none of the defendants has answered
plaintiffs’ requests for admission.

(Docket 184 & 185.)

Claiming

that the allotted 30-day period to submit defendants’ answers
pursuant to Fed. R. Civ. P. 36 (“Rule 36”) has expired, plaintiff
moves for the Court to deem admitted all matters included in the
requests.

(Docket 184.)

Rule 36(a)(1) states that “[a] party may serve on any other
party

a

written

request

to

admit

.

.

.

the

truth

matters[sic] within the scope of Rule 26(b)(1) . . . .”

of

any

A party

may respond to the request for admission by serving upon the
requesting party a written answer or objection within 30 days after
being served.

Fed. R. Civ. P. 36(a)(3).

If the party fails to

submit answers or objections within that time, the matter is deemed
admitted.

Id.

Defendants claim that by filing their motion for a protective
order on July 17, 2013, they tolled the original 30-day period to
answer plaintiff’s requests to admit.

(Docket 185.)

They point

out that the Court “did not set forth a deadline to provide the
responses to the requests for admission” in the July 26, 2013
Order.

Id. at 2.

“Absent a specific order from this Court

regarding the time to respond . . . and having successfully tolled

Civil No. 12-1271 (FAB)

17

the original 30-day period,” the defendants argue, “[the] said
period began to run again from day 1 on the date that this Court
denied defendants’ [m]otion for [p]rotective [o]rder.”

Id.

The

defendants cite no legal authority for their contention.
Although pursuant to Rule 36(a)(3) the Court could have
ordered the parties to respond in a shorter or longer time, it did
not.6

In the Court’s own independent review of legal authority,

however, it found at least one case in which a court awarded
defendants a fresh 30-day period to answer requests to admit after
the court denied the defendants’ motion for a protective order.
See Duncan v. Santaniello, 1996 U.S. Dist. LEXIS 3860 at *8 (D.
Mass. 1996) (“Defendants shall have an additional thirty days from
the date hereof to respond to Plaintiff’s requests, if they so
wish.”).7

Given that defendants claim to be “diligently working on

the responses . . . and will timely provide the same to plaintiff
with[in] the 30-day period” — which it believes to be August 26,
2013

—

the

Court

GRANTS

all

defendants

until

5:00

p.m.

on

August 26, 2013 to file their responses to plaintiff’s requests.

6

Caution and common sense thus should have led defendants to
the conclusion that only 15 days remained to respond to plaintiff’s
requests. Instead, defendants assumed — without any kind of legal
authority to support their assumption — that they were
automatically entitled to an entirely new period of 30 days. The
Court warns the defendants against further engaging in any such
bold presumptions.
7

A legal treatise also provides that objecting “discharges
the duty to respond.” 1 Federal Rules of Civil Procedure, Rules
and Commentary Rule 36.

Civil No. 12-1271 (FAB)

18

Defendants are ORDERED to comply fully with Rule 36(a)(4) by only
admitting or denying each matter, as separately stated.

Having

considered

as

defendants’

motion

for

a

protective

order

an

“objection” pursuant to Rule 36(a)(5) that complied with Rule
36(a)(3), the Court will not allow any further objection.
IV.

CONCLUSION
Plaintiff’s

motion

for

reconsideration,

DENIED IN PART AND GRANTED IN PART.

(Docket

151), is

The Court DENIES plaintiff’s

requests no. 1, 5, 6, 8, and 10, and GRANTS plaintiff’s requests
no. 3 and 14.

Sanctions against plaintiff regarding her requests

no. 3 and 14 are VACATED. Defendants’ motion to strike plaintiff’s
reply, (Docket 183), is DENIED.

Defendants’ motion to announce an

expert witness, (Docket 146), is DENIED at this time.

Plaintiff’s

motion requesting an order to deem admitted all matters included in
her requests for admissions, (Docket 184), is DENIED.

The Court

GRANTS all defendants until 5:00 p.m. on August 26, 2013 to either
admit or deny plaintiff’s requests for admissions.
IT IS SO ORDERED.
San Juan, Puerto Rico, August 23, 2013.
s/ FRANCISCO A. BESOSA
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE