OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO DEEM ADMISSIONS
I. INTRODUCTION
This matter is presently before the Court on Plaintiff Dwuan Freeman’s Motion to Deem Admissions to have been admitted by Defendant Police Officer James Napier. Defendant, through counsel, has responded to Plaintiffs Motion.
Having reviewed and considered the parties’ briefs and supporting exhibits, and the entire record of this matter, the Court finds that the pertinent facts and legal contentions are sufficiently presented in these materials, and that oral argument would not assist in the resolution of this matter. Accordingly, pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), the Court will decide Defendant’s motion “on the briefs.” This Opinion and Order sets forth the Court’s ruling.
II. DISCUSSION
Plaintiff claims that on July 7, 2010, he served upon Defendant James Napier 57 Requests for Admission and therein informed Defendant that his responses were due within 30 days, i.e., on August 9, 2010. No proof of service, however, has been filed or otherwise provided to the Court verifying this assertion. Nor has Plaintiff filed or otherwise provided to the Court a copy of these Requests for Admission. Eastern District of Michigan Local Rule 26.2 requires the filing of such discovery requests when, as here, they provide factual support and/or are germane to a party’s motion. See also, Fed. R.Civ.P. 5(d)(1) (requiring the filing of depositions, interrogatories, requests for documents or tangible things or to permit entry on land, and requests for admission when they are used in the proceeding).
Defendant’s counsel, however, claims that he was never properly served with the Requests for Admission but that on September 21, 2010, nearly two months after the discovery cutoff and three weeks after the motion cutoff and after Defendants had filed their motion for summary judgment in this case,
Having failed to establish proper service of the Requests for Admission during the discovery period, Plaintiff is precluded from attempting to deem the Requests admitted based on Defendant’s failure to respond within 30 days of July 7 or 10, 2010 (i.e., the dates on which Plaintiff alleges to have originally served Defendant).
Furthermore, even assuming Plaintiff properly served Defendant with the Requests in July 2010 (within the discovery period), his Motion to Deem Admissions was not filed until September 29, 2010. The Scheduling Order entered by the Court in this matter provides that any discovery motions must be filed within 14 days of the date that requested discovery was due. [See January 7, 2010 Scheduling Order, ¶ 2A (Dkt. # 13); see also June 14, 2010 Order Granting Extension of Deadlines (Dkt. # 17) (extending deadlines but providing that “[i]n all other respects, the provisions of the original Scheduling Order remain in full force and effect.”).] Plaintiffs Motion to Deem Admissions was not filed within this 14-day time limit.
Plaintiff argues that Requests for Admission are not a general discovery device and, therefore, he did not have to comply with July 31, 2010 discovery deadline set in this case or the Court’s 14-day discovery motion rule. While it is true that the Sixth Circuit did state in Misco, Inc. v. United, States Steel Corp.,
[A] district court has broad discretion in regulating discovery. (Citation omitted). Misco’s filing of 2,028 “requests for admissions” was both an abuse of the discovery process and an improper attempt to circumvent the local district court rule which limited the number of interrogatories to thirty. Accordingly, the district court clearly acted properly in limiting Misco’s discovery in this respect.
As a number of courts within this Circuit have noted, there is a split among the circuits and dissension among the district courts as to whether requests for admission are subject to discovery deadlines in scheduling orders. See e.g., EEOC v. Rentr-A-Center, Inc.,
As the District Court for the Middle District of Tennessee found in United States v. Guidant, the better reasoned cases hold that requests for admission are subject to court-ordered discovery deadlines.
This Court agrees with these cases and joins the majority in concluding that requests for admission are subject to the deadlines set by the Court in its Scheduling Orders.
Plaintiff’s Motion to Deem Admissions here was filed well-beyond the expiration of the 14-day deadline provided in the Court’s Scheduling Order. Therefore, the Motion will be denied.
However, even assuming the timeliness of Plaintiffs Motion to Deem Admissions would not necessarily mean that Plaintiff is entitled to a ruling in his favor on this matter.
Pursuant to Rule 36, “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Fed.R.Civ.P. 36(b). A court may allow a party to amend or withdraw its responses when (1) it would be beneficial to the presentation of the merits of the case and (2) it would result in no prejudice to the party obtaining the admission in its claims or defenses. O’Neill v. Medad,
The first prong of this test is satisfied when the admissions would “practically eliminate” the presentation of the contested issues by the parties. See EEOC v. Rentr-A-Center, supra,
In this case, the discovery deadline has passed, depositions have been taken, interrogatories and other discovery devices have been propounded and responses provided. The requests for admission did not influence Plaintiff in his decisions in discovery, i.e., he did not decide whose depositions to take or what interrogatories to propound based upon the defaulted admissions. All matters on the Scheduling Order (except for the final pretrial conference and trial itself) have been completed. Plaintiff has not articulated any prejudice due to the unavailability of witnesses, for example, that may result if the defaulted admissions are withdrawn. Furthermore, Defendant Napier moved in a timely manner to respond to the requests for admission once they were finally received by his counsel.
The only prejudice Plaintiff can assert is that he will have to prove the merits of his case rather than simply relying on the defaulted admissions to establish his claims. There is no prejudice in requiring a plaintiff to perform the tasks he originally set out to fulfill by bringing a lawsuit. See EEOC v. Rent-A-Center, supra. Requiring Mr. Free
CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs Motion to Deem Admissions [Dkt. # 22] is DENIED.
Notes
. Included among the correspondence and pleadings emailed to defense counsel on September 21, 2010 was an unsigned purported "proof of service” which stated that Plaintiff's counsel personally hand-delivered the disputed Requests for Admission to the City of Detroit Law Department on July 10, 2010 (See Defendant’s Ex. A). However, the City Law Department was closed and its doors locked on July 10, 2010 as it was a Saturday. No delivery was ever received by Defendant's counsel.