Hogan v. Utah Telecommunications Open Infrastructure Agency et al

Filing 98

MEMORANDUM DECISION denying 84 Motion to deem admitted sixth request for admission. Signed by Magistrate Judge Paul M. Warner on 3/1/13. (ss)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

CHRIS HOGAN,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 1:11cv64

UTAH TELECOMMUNICATION
OPEN INFRASTRUCTURE AGENCY
aka UTOPIA, TODD MARRIOTT, AND
DOES 1-5,

Chief District Judge Ted Stewart

Defendants.

Magistrate Judge Paul M. Warner

This matter was referred to Magistrate Judge Paul M. Warner by Chief District Judge Ted
Stewart pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court is Chris Hogan’s (“Plaintiff”)
motion for an order deeming Plaintiff’s sixth request for admission admitted.2 The court has
carefully reviewed the memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the
United States District Court for the District of Utah Rules of Practice (“local rules”), the court
elects to determine the motion on the basis of the written memoranda and finds that oral
argument would not be helpful or necessary. See DUCivR 7-1(f).

1

See docket no. 77.

2

See docket no. 84.

On July 27, 2012, Plaintiff served discovery requests on Utah Telecommunication Open
Infrastructure Agency and Todd Marriott (collectively, “Defendants”), including six requests for
admission. Defendants responded to the first five requests for admission in both their original
discovery response, as well as their amended response. In both documents, Defendants failed to
deny, object to, or even acknowledge Plaintiff’s sixth request for admission. On January 15,
2013, Plaintiff filed the instant motion.
Plaintiff urges this court to deem his sixth request for admission admitted because
Defendants failed to respond to the request in a timely manner. See Fed. R. Civ. P. 36(a)(3) (“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.”).
Defendants contend that the error was inadvertent and that they did not discover the omission
until Plaintiff filed the instant motion. Defendants note that the court could summarily deny
Plaintiff’s motion as Plaintiff’s counsel failed to meet and confer prior to filing the motion, as
required by the local rules. See DUCivR 37-1(a). Plaintiff counters that the meet and confer
requirement is inapplicable because (1) a request for admission is admitted automatically unless
a party denies it or objects to it within thirty days and (2) the instant motion is not a “motion to
compell [sic].”3
The court is not persuaded by Plaintiff’s assertion. The rule specifically states that
[u]nless otherwise ordered, the court will not entertain any
discovery motion . . . unless counsel for the moving party files with
the court, at the time of filing the motion, a statement showing that
3

Docket no. 86 at 2.
2

the attorney making the motion has made a reasonable effort to
reach agreement with opposing attorneys on the matters set forth in
the motion.
DUCivR 37-1(a) (emphasis added). It does not limit the meet and confer requirement to only
motions to compel discovery; the rule is applicable to all discovery-related motions. Thus, the
court could deny Plaintiff’s motion on this basis alone. Nevertheless, the court will address
Plaintiff’s motion on the merits.
Rule 36(b) of the Federal Rules of Civil Procedure provides that a “court may permit
withdrawal or amendment [of a response to a request for admission] 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).
Plaintiff argues that the presentation of the merits would not be aided by allowing Defendants to
amend their response to Plaintiff’s sixth request for admission because, as written, it accurately
reflects the facts of the case. Plaintiff’s sixth request for admission states the following: “Admit
that you locked [Plaintiff] out of your offices and systems immediately after he declined to sign a
termination agreement with you on March 17, 2011.”4 However, Defendants’ proposed response
states that while they acknowledge that they changed the locks and passwords after March 17,
they deny that the change was the result of Plaintiff’s refusal to sign the termination agreement.
Plaintiff’s admission appears to infer that Defendants acted based on Plaintiff’s refusal to
execute the agreement, and Defendants’ proposed response attempts to clarify that assumption.

4

Docket no. 84 at 4.
3

The distinction is small but important. Accordingly, the court concludes that allowing
Defendants’ proposed amendment would promote a more complete presentation of the merits.
Furthermore, Plaintiff has not alleged that he will suffer any prejudice if the court allows
the proposed amendment. Plaintiff’s memoranda focus on the fact that Defendants failed to
timely respond to the request for admission, rather than any prejudice he may endure from
allowing Defendants’ response. “The prejudice contemplated by Rule 36(b) . . . relates to the
difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses,
because of the sudden need to obtain evidence with respect to the questions previously deemed
admitted.” Raiser v. Utah County, 409 F.3d 1243, 1246 (10th Cir. 2005) (quotations and citation
omitted). Thus, the court concludes that Plaintiff has failed to demonstrate that he would be
prejudiced in any way by allowing the proposed amendment.
Based on the foregoing, Plaintiff’s motion to deem admitted his sixth request for
admission is DENIED. Defendants’ proposed amended response is hereby permitted.
IT IS SO ORDERED.
DATED this 1st day of March, 2013.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

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