Khanzai v. Bash et al

Filing 30

MEMORANDUM AND ORDER entered DENYING 21 MOTION for Summary Judgment , GRANTING 26 MOTION to Amend. The hearing set for 10/4/16 is canceled. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MOHAMMAD TARIK KHANZAI,
Plaintiff,
v.
LANCE BASH and CNM ENTERPRISES,
Defendants.

§
§
§
§
§
§
§
§
§

September 27, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-15-3317

MEMORANDUM AND ORDER
This personal-injury suit arises from a car accident between Mohammad Khanzai, the
plaintiff, and Lance Bash, the defendant. Khanzai contends that when the collision occurred, Bash
was acting within the scope of his employment with CNM Enterprises d/b/a Whitestone Logstics,
which is also sued in this case. The defendants have moved for summary judgment, (Docket Entry
No. 21). Khanzai has responded and moved to withdraw and amend the deemed admissions that are
the basis of the summary-judgment motion, (Docket Entry No. 25).
Bash sent his first set of discovery requests, including the requests for admission, on April
21, 2016. Khanzai’s responses were due on May 23, 2016. The deadline came and went. Khanzai,
citing a clerical error, turned in the responses to the requests 44 days later, on July 6, 2014. (Docket
Entry No. 22; Docket Entry No. 25 at p. 2).
Under Federal Rule of Civil Procedure 36(a)(3), a written answer or objection to a request
for admission must be filed within 30 days after service unless a longer time for responding is
stipulated under Rule 29 or the court orders it. See FED. R. CIV. P. 36(a)(3). A failure to file a
timely response results in the matter being “admitted.” Id.; Am. Auto. Ass’n v. AAA Legal Clinic of
Jefferson Crooke, P.C., 930 F.2d 1117, 1119 (5th Cir. 1991); 8B CHARLES ALAN WRIGHT, ET AL.,
FEDERAL PRACTICE & PROCEDURE § 2262 (3d ed. 2010). A failure to object or answer requests for

admission within the deadline, or to move for additional time without a stipulated extension, deems
the requests admitted. See FED. R. CIV. P. 36(a)(3); 8B FEDERAL PRACTICE & PROCEDURE § 2259;
see also, e.g., In re Carney, 258 F.3d 415, 418–19 (5th Cir. 2001) (party’s failure to respond to
requests for admission within the Rule 36 deadline deemed the requests admitted).
The deemed admissions serve as the basis for the defendants’ summary-judgment motion.
(Docket Entry No. 21). Khanzai moves to withdraw the deemed admissions under FED. R. CIV. P.
36(b). (Docket Entry No. 26). He also belatedly objects that the requests for admission called for
legal conclusions and were vague. (See Docket Entry No. 26 at p. 2–4); see, e.g., Warnecke v. Scott,
79 F. App’x 5, 6 (5th Cir. 2003) (per curiam) (citing In re Carney, 258 F.3d at 419); 8B FEDERAL
PRACTICE & PROCEDURE § 2255.
A court has discretion to grant an untimely motion to withdraw or amend the admissions 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.” FED.
R. CIV. P. 36(b). Both factors support granting Khanzai’s motion for relief and denying the
summary-judgment motion as a result.
Permitting the withdrawal of the admissions and amendment of the responses allows the
parties to present the merits, which is far better than having the court decide based on a party’s
failure to respond within a deadline. FED. R. CIV. P. 36(b). The admissions “directly bear on the
merits of the case,” S.E.C. v. AmeriFirst Funding, Inc., No. 3:07-cv-1188-D, 2008 WL 2073498, at
*2 (N.D. Tex. May 13, 2008), and “go directly to the ultimate question” of negligence, contradicting
allegations in the complaint. Young v. Green, No. CIV. A. H-11-1592, 2012 WL 3527040, at *3
(S.D. Tex. Aug. 15, 2012) (quoting Lyons v. Santero, No. CV-07-02773-MMM(VBK), 2011 WL
3353890, at *3 (C.D. Ca. May 11, 2011)). Because “upholding the admissions would practically
eliminate any presentation of the merits of the case,” the first half of Rule 36(b) is satisfied. Id.
2

The absence of prejudice to Bash and CNM Enterprises also favors allowing withdrawal of
the deemed admissions. Bash and CNM invoke a frequent Rule 36(b) argument: admitting the facts
established by the deemed admissions simplifies the presentation of evidence; allowing the plaintiff
to withdraw all of the admissions requires the defendants “to establish each fact that has already
been admitted.” (Docket Entry No. 27 at p. 6–7). That argument does not show the necessary
prejudice. “That it would be necessary for a party to prove a fact that it would not otherwise be
obligated to prove if the matter were deemed admitted does not constitute the kind of prejudice
contemplated by Rule 36(b).” AmeriFirst Funding, 2008 WL 2073498, at *2 (citation omitted).
“The need for discovery to obtain evidence necessary for dispositive motions on the merits or for
trial is not a sufficient ground for finding prejudice.” Young, 2012 WL 3527040, at *3.
This case does present a sad complication. Since the admissions were deemed admitted, the
plaintiff, Khanzai, has died. Bash and CNM argue that withdrawing the admissions now will
prejudice them because they did not depose Khanzai before he died. (Docket Entry No. 27 at p. 7).
“Courts have usually found that the prejudice contemplated by Rule 36(b) relates to special
difficulties a party may face caused by a sudden need to obtain evidence upon withdrawal or
amendment of an admission.” Am. Auto. Ass’n., 930 F.2d at 1120 (citing Brook Village North
Assocs. v. General Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982)). In Brook Village, the court noted that
“the unavailability of [a] key witness[]” may support denying a Rule 36(b) motion. 686 F.2d at 70.
The record here shows that the unavailability of Mr. Khanzai as a witness is far more likely to harm
the plaintiff’s case than the defendants’; that is not prejudice to the defendants under Rule 36(b).
See Raiser v. Utah Cty., 409 F.3d 1243, 1246 (10th Cir. 2005) (“The prejudice contemplated by Rule
36(b) . . . relates to the difficulty a party may face in proving its case . . . .”). And, as the parties
note, there are still eight months in the discovery period, allowing Bash and CNM to explore and

3

exploit other sources of information about Mr. Khanzai relevant to the claims and defenses pleaded
in this case.
Even if the Rule 36(b) requirements are met, a district court retains “discretion to deny a
request for leave to withdraw or amend an admission.” In re Carney, 258 F.3d at 419. The
withdrawal here is well in advance of trial and before the defendants have built their trial strategy.
Although Mr. Khanzai’s death makes the discovery more difficult, the difficulty is primarily for the
plaintiff. Any prejudice to the defendants can be ameliorated or reduced by allowing additional
discovery. The added work is far better than essentially granting the defendants a summary
judgment by default.
The court grants the plaintiff’s motion to withdraw and amend the deemed admissions,
(Docket Entry No. 26), and denies the defendants’ motion for summary judgment, (Docket Entry
No. 21). The hearing set for October 4, 2016 is cancelled.
SIGNED on September 27, 2016, at Houston, Texas.

______________________________________
Lee H. Rosenthal
United States District Judge

4