ORDER RE DOC. # 142 REQUEST FOR RELIEF UNDER FRCP 36(B)
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE.
Before the court is a Request for Relief under FRCP 36(b) filed by Defendants Jean Merkelbach, individually, and as Trustee of the Rockwell 1997 Trust, and as Trustee of the SES Trust, Rockwell Lot, LLC (collectively, Merkelbach). (Doc. # 142.) Plaintiff Fidelity National Title Insurance Company, successor-in-interest to Lawyers Title Insurance Corporation (Fidelity), opposed the motion. (Doc. # 147.) Merkelbach filed a reply. (Doc. # 153.)
Generally, this case concerns the legal status of certain real property located in Douglas County, Nevada. Pursuant to the most recent scheduling order issued in the case, the discovery cutoff date was January 15, 2014. (Doc. # 113.)
Fidelity propounded discovery, including requests for admission, on Merkelbach on November 27, 2013, making the responses due on or before December 30, 2013. (Doc. # 147 at 3 ¶¶ 3- 4.) No extension of time was sought to respond to the requests. (Id. ¶ 5.) Merkelbach did not serve responses to the discovery by December 30, 2013. (Id. ¶6.) According to Merkelbach, she did not serve responses or objections to the requests because Fidelity, in briefing dated November 25, 2013, related to Merkelbach's motion to dismiss, made a representation that discovery in the case had been stayed for much of the pendency of the action, and was "once again halted" with the filing of the motion to dismiss. (See Merkelbach's Mtn., Doc. # 142 at 2:23-25; Pl.'s Opp. To Mtn. to Dismiss, Doc. # 132 at 3:20-24.) In the interim, on December 23, 2013, Fidelity filed a motion seeking to extend the discovery cutoff date. (Doc. # 137.)
Merkelbach then contacted Fidelity's counsel on January 9, 2014, ten days after the responses were due, asking when she should respond to the discovery it had propounded. (Doc. # 142 at 3:16-19; Doc. # 147 at 4 ¶ 8.) Fidelity's counsel indicated it was Plaintiff's position that the discovery responses were past due. (Doc. # 142 at 3:20-22.) Fidelity asserts that because Merkelbach did not timely respond (or respond at all) to Fidelity’s discovery, “this court should deem Plaintiff’s requests for admissions admitted.” (Doc. # 147 at 20.) Merkelbach argues that withdrawal of the admissions should be permitted under Federal Rule of Civil Procedure 36(b) to promote the proper presentation of the merits of this action, and because Fidelity will not suffer any prejudice as a result of the withdrawal. (Doc. # 142 at 8.)
According to Fidelity, the remark in its brief opposing Merkelbach's motion to dismiss that discovery was being halted, "merely referred to the fact that in preparing an opposition to Merkelbach's motion to dismiss, [counsel] had to divert...efforts from conducting discovery and, instead, focus on responding to the motion." (Doc. # 147 at 4 ¶ 12.) In addition, Fidelity argues that Merkelbach's argument does not make sense because the discovery was propounded after the remark in the opposition was made. (Id. ¶ 13.) Next, Fidelity points out that there was in fact no discovery stay in place when the discovery was served; nor had any party applied for a discovery stay while the discovery requests were outstanding. (Id. ¶ 14.) It was for this reason that Fidelity had proceeded with serving the discovery. (Id.) Finally, Fidelity reiterates that Merkelbach never contacted Fidelity for an extension to respond to the discovery, or if they believed an extension was implied, to confirm as much. (Id. at 5 ¶ 15.)
In the reply brief, Merkelbach first states that to the extent Fidelity is arguing that Merkelbach is just attempting to excuse her noncompliance with its discovery requests and further delay discovery in this case, Fidelity did not even serve any discovery on Merkelbach until after it filed its First Amended Complaint. (Doc. # 153 at 5.) Merkelbach characterizes Fidelity's position as an "attempt to capitalize on its misrepresentation to the Court that discovery was halted by refusing Merkelbach the opportunity to submit timely responses to Plaintiff's Requests for Admissions." (Id. at 5-6.) Merkelbach represents that if permitted, she will respond to all of the outstanding discovery. (Id. at 6.)
Federal Rule of Civil Procedure 36(a) permits "[a] party to serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents." Fed.R.Civ.P. (a)(1).
The rule further provides: "A matter is admitted unless, within 30 days after being served" the responding party serves a written answer or objection. Fed.R.Civ.P. 36(a)(3). The rule allows for the period of time to respond or object to be extended by stipulation or court order.
A court order to deem unanswered admissions “admitted” is unnecessary:
Recognizing the unavailability of a motion to compel answers to the requests for admissions, the Plaintiff seeks an order from the Court confirming that the matters in the requests for admission are deemed admitted. Rule 36 does not require a motion for the Court’s imprimatur on the unanswered requests for admission. The rule is self-executing. Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial ¶ 11:812 (The Rutter Group 1997). A motion to establish or affirm the admissions upon a party’s failure to admit ...