Lead Opinion
for the Court:
¶ 1. Bobbi J. Young and Lynda L. Carter, Next of Kin of Clarence S. Young, Deceased (‘Young”), appeal an Order of the Circuit Court of DeSoto County, Mississippi, which granted summary judgment in favor of Dr. Robert Smith and his employer, Baptist Memorial Hospital-DeSoto (“BMH-D”).
¶ 2. On August 22, 2001, Young filed a “wrongful death, medical malpractice claim” against health-care providers, including Dr. Smith and BMH-D. Young I,
1. Please admit that with regard to the care and treatment provided to [Young] by [Dr. Smith] you have no qualified medical expert who is expected to testify at the trial of this case that [Dr. Smith] deviated from the applicable standard of care for an emergency room physician.
2. Please admit that you have no qualified medical expert who is expected to state an opinion at trial that any alleged deviation from the applicable standard of care on the part of [Dr. Smith] proximately caused or contributed to the death of [Young].
(Emphasis added.) Pursuant to Rule 36(a), a “written answer or objection” to these requests for admission was due “within thirty days after service of the request.” Miss. R. Civ. P. 36(a). But during this period, Young filed no “written answer[s] or objection[s,]”
¶ 3. On December 21, 2001, seventy-one days after service of the “Requests for Admission,” Young filed responses which denied the requested admissions; identified Dr. David E. Hansen as one of Young’s medical experts; and “filed a motion for summary judgment against the individual doctors[,]” with an attached affidavit from Dr. Hansen which “stated that the doctors had been negligent in their care of [Clarence] Young, and had they provided timely and proper care, it was probable that Young would have survived.” Young I,
¶ 4. For several years thereafter, proceedings were delayed due to the insolvency of a liability insurance carrier for one of the defendants and the prior appeal to this Court. The prior appeal contested the grant of summary judgment. Young I,
¶ 5. In Young I, this Court chose not to address substantively the separate issue of “whether [Young’s] failure to respond to Dr. Smith’s requests for admissions warranted summary judgment in favor of Dr. Smith and his employer, BMH-D[,]” stating that because “the trial court has never ruled on this issue, we decline to address this assignment of error.” Id. at 371, 373. Following denial of the defendants’ motion for rehearing, this Court’s mandate was issued on February 17, 2009.
¶ 6. Upon remand, on February 19, 2009, BMH-D filed a “Renewed Motion for Summary Judgment” based upon Young’s failure to timely respond to the requests for admissions.
if that were the case, they could have moved for more time to respond; they could have responded as they were and then amended them when they got their expert opinions in, but they didn’t do that. They just simply didn’t respond. And then when they did respond, it took them years to even move to withdraw them....
Having offered no legitimate explanation or excuse to support the untimely motion to withdraw, Young leapfrogged to contesting the lack of prejudice to Dr. Smith and BMH-D. Counsel for Dr. Smith responded that the consequence of failing to comply with Rule 36 is an admission by operation of law, regardless of the defendants’ conduct.
¶ 7. After taking the matter under advisement for consideration, on September 9, 2009, the circuit court issued a five-page “Opinion.” The analysis began by quoting the pertinent portions of Rule 36. The learned circuit judge found, as follows:
Rule 36 is to be enforced according to its terns. Educational Placement Services v. Wilson,487 So.2d 1316 (Miss.1986). When a party does not respond or object to requests for admissions within the time period allowed by this Rule and does not seek an extension of time forresponding, a court does not abuse its discretion in striking untimely responses or refusing withdrawal of matters deemed admitted in untimely filed admissions. Sawyer v. Hannan, 556 So.2d 696 (Miss.1990).
If the plaintiff fails to communicate to the trial court a reason for the delay or a belief that they should have been allowed to delay their response, and the court can find no compelling circumstances to justify allowing an untimely reply to avoid admissions, the [cjourt does not abuse its discretion in not allowing the admissions to be withdrawn. Earwood v. Reeves,798 So.2d 508 , 514 (Miss.2001).
Requests are deemed admitted if the answers or objections are not served within 30 days of service. There appears to be no issue that [Young] did not file responses to the admissions within thirty days. The requests for admissions go to the heart of [Young’s] claims. [Young] asked to withdraw the admissions over seven years from when they were served. [Young] gave no explanation as to why they had not sought withdrawal of their responses which were deemed admitted thirty days after they were served until the Defendants filed their motions for summary judgment. The [cjourt also can find no compelling circumstances to justify allowing an untimely reply to avoid admissions. Therefore, the motion to withdraw the admissions will be denied.
(Emphasis added.) As to Young’s argument that Dr. Smith and BMH-D had waived their right to bring the “Renewed Motions for Summary Judgment,” the circuit court found:
[Rule] 36 provides that requests for admissions are deemed admitted by operation of law if a party does not respond within the required time. The party seeking the admissions are [sic] not required to take any affirmative action in this regard.... The [e]ourt does not find the cases regarding affirmative defenses being waived as persuasive or analogous. Also, [Rule] 56(b) provides that a motion for summary judgment can be made by the Defendant at any time. Therefore, the [c]ourt finds that the motions were timely filed and the arguments were not waived just because they were not asserted earlier.[7 ] The [cjourt finds it noteworthy that the Supreme Court did not make any finding that the argument was waived when they declined to rule on the issue.
(Emphasis in original.) The circuit court ultimately concluded that the “Renewed Motions for Summary Judgment” filed by Dr. Smith and BMH-D “should be granted.”
¶ 8. Thereafter, the circuit court entered an “Order Granting Motions for Summary Judgment” and a “Final Judgment” in favor of Dr. Smith and BMH-D, dismissing Young’s claims against both with prejudice. From those rulings, Young filed timely “Notice of Appeal.”
ISSUES
¶ 9. This Court will consider:
(1) Whether the circuit court abused its discretion in denying Young’s “Motion to Withdraw Admissions.”
(2) Whether the circuit court erred in granting summary judgment in favor of Dr. Smith and BMH-D.
I. Whether the circuit court abused its discretion in denying Young’s “Motion to Withdraw Admissions.”
¶ 10. This Court has stated that Rule 36 is “well-delineated” and “carries] harsh sanctions for failure to comply therewith.” Earwood,
(a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.
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Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons upon him.
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(b) Effect of Admission. Any matter established under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.
Miss. R. Civ. P. 36 (emphasis added).
¶ 11. In cases before and after DeBlanc v. Standi,
[w]e do not intend ... to suggest that any request for admissions to which a response, objection or motion for time has not been filed before the thirty-first day should be taken as irrevocably admitted. Necessary and practicable leniency, however, appear to have generated an air of benevolent gratuity about the administration of Rule 36. But, of course, there is no gratuity about it. Courts cannot give, or withhold at pleasure .... More than a year’s inaction on the part of the party to whom the request has been submitted must of necessity result in the matters being taken as admitted if the rule is to have any meaning of force at all. This is particularly so where, as in the case at bar, not one word of explanation or excuse appears either in the record or in his brief on appeal why Wilson could not have responded to the request.
Id. See also Langley v. Miles,
¶ 12. Young unpersuasively submits that “[i]n considering a motion to withdraw admissions, trial courts in Mississippi are required to engage in the two-prong analysis set out in Rule 36(b).” (Emphasis added.) Young seeks to expand or amend the rule by asking this Court to declare it would be “an abuse of discretion per se for a trial court to deny a motion to withdraw requests for admission without engaging in the two-prong Rule 36(b) analysis.”
¶ 13. Dr. Smith and BMH-D respond that Young “filed an untimely Motion to Withdraw Admissions long after Dr. Smith had filed his Motion for Summary Judgment. Moreover, [Young] failed to demonstrate justifiable excuse in their seven (7) year delay in attempting to withdraw the admissions.” As such, they contend that the circuit judge “was within his discretion and properly denied withdrawal of the admissions .... ” They further note that the analysis in Rule 36(b) includes the permissive term “may,” as opposed to the mandatory term “shall,” such that the consideration, vel non, of such factors is within the circuit court’s discretion.
¶ 14. A mandatory, two-pronged test urged by the dissent is contrary to both the plain language of Rule 36(b) and prior rulings of this Court. In using the permissive term “may” rather than the mandatory term “shall,” Rule 36(b) does not create a mandatory, per se requirement that the lower court must apply before denying the withdrawal or amendment of a deemed admission. See DeBlanc,
[notwithstanding the language of the rule, Earwood argues that, pursuant to M.R.C.P. 36, the court should have permitted withdrawal of the deemed admissions because the presentation of the case on the merits would be promoted and that permitting withdrawal would not result in undue prejudice or delay to Reeves in maintaining his action on the merits. Yet Earwood’s dilatory response had already delayed Reeves’s action. Earwood’s response was not forthcoming until almost ten months after the complaint, and only after Reeves filed a motion to deem requests admitted, to compel and for partial summary judgment. Therefore, the trial court’s reluctance to exercise its broad discretion in favor of Earwood is not illogical.
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Here, the trial court found no compelling reason to allow disrespect of M.R.C.P. 36 regarding the set time for responding to requests for admissions; and we find no compelling reason to hold that such was an abuse of discretion. Earwood knew or should have known the severe consequences of failing to timely respond.
Earwood,
¶ 15. The circuit court’s “Opinion” further reflects that the circuit court took into consideration all arguments presented, the applicable rule (Rule 36), and our established caselaw in rendering its decision. The circuit court began its analysis by emphasizing that Rule 36 should be “enforced according to its terms.” Educ. Placement Servs.,
¶ 16. “The requests for admissions submitted to [Young] were a simple matter which could have been answered in a few minutes time[,]” or for which a “motion for enlargement of time” could have been filed. Sunbelt Royalty, Inc. v. Big-G Drilling Co.,
¶ 17. For certain, all courts, counsel, and litigants would rather see cases decided on the merits. But this aspirational goal carries with it a commensurate responsibility imposed upon all to abide by the Rules and the decisions of our courts, as opposed to seeking a benevolent decision from a trial judge. See DeBlanc,
II. Whether the circuit court erred in granting summary judgment in favor of Dr. Smith and BMH-D.
¶ 18. “The standard of review for a trial court’s grant or denial of a motion for summary judgment is de novo.” J.R. v. Malley,
¶ 19. Young submits that Dr. Smith and BMH-D “waived” their “Renewed Motions for Summary Judgment” based upon the “failure to timely and reasonably pursue” a motion for summary judgment. Young further asserts that “[ejven without withdrawal of the 2001 admissions, a genuine issue as to deviations from the accepted standard of professional practice on the part of Defendants, and causation of the death of [Clarence Young] exists, and the trial court erred in granting summary judgment in favor of Defendants.”
¶ 20. As to Young’s waiver argument, Dr. Smith and BMH-D maintain that Rule 36 is a “self-executing” “discovery device” that “does not require any action on the part [of] a Defendant for matters to be deemed admitted and conclusively established. Because such failures to respond result in a judicial admission, and not the creation of an ‘affirmative defense,’ ... waiver arguments are misplaced.”
¶ 21. This Court rejects Young’s waiver argument based on the same reasoning and logic used by the circuit judge. See ¶ 7 supra. First, the admission exists by operation of law. See Miss. R. Civ. P. 36. An admission is not an affirmative defense. Rather, it establishes a factual matter for purposes of evaluating the elements of a party’s claim or defense. Mississippi Rule of Civil Procedure 56(b) provides that “[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” Miss. R. Civ. P. 56(b) (emphasis added). As a motion for summary judgment can be made at any time, it is incongruous to argue the “Renewed Motions for Summary Judgment” were untimely.
¶ 22. This Court has stated that “[a] matter that is deemed admitted does not require further proof. Any admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence.” DeBlanc,
CONCLUSION
¶ 23. In sum, this Court concludes that the circuit court did not abuse its discretion in denying Young’s “Motion to Withdraw Admissions.” Given those admissions, no genuine issues of material fact remain as to Young’s claims against Dr. Smith and BMH-D. Therefore, this Court affirms the circuit court’s “Order Granting Motions for Summary Judgment” in favor of Dr. Smith and BMH-D.
¶ 24. AFFIRMED.
Notes
. This Court previously has noted that "[t]he basis of the action against BMH-D was re-spondeat superior. Therefore, as the only employee of BMH-D in this case, summary judgment in favor of Smith would necessitate summary judgment in favor of BMH-D.” Young v. Meacham,
. Dr. Smith and BMH-D are the only parties as to which Young advances this appeal. This
. The underlying facts in this case were previously summarized by this Court. See Young I,
. Young did not present even an answer providing "lack of information or knowledge” as a basis for failing to admit or deny, which contended that a "reasonable inquiry” had been made and "the information known or readily obtainable ... [wa]s insufficient to enable [Young] to admit or deny.” Miss. R. Civ. P. 36(a).
. On March 13, 2009, Dr. Smith filed a substantively similar “Renewed Motion for Summary Judgment.”
. Additionally, counsel for BMH-D noted that Young was still shuffling experts at that time. Specifically, counsel for BMH-D stated that, on May 7, 2009, Young had filed a designation of a new nursing expert “to assert claims against [BMH-D,]” nearly four years after "[t]he deadline passed ... for [Young] to have their experts designated.” Counsel for BMH-D asserted that "Dr. Hansen's supplemental opinions ... were about [a separate defendant-physician], not about Dr. Smith[,]” such that those “supplemental opinions don't address the issue before the [c]ourt on this summary judgment motion with respect to Dr. Smith.”
. The circuit court added that Dr. Smith and BMH-D "had no reason to bring forth their motion until this [c]ourt’s ruling on the previous motion was reversed."
. In neither the record nor Young’s appellate brief does Young explain why no "lack of information or knowledge”-type response, objection, or motion for enlargement of time was interposed or filed. See Miss. R. Civ. P. 36(a); Educ. Placement Servs.,
. This should have been filed either before, or contemporaneously with, Young's untimely response.
. Dr. Smith and BMH-D add that to hold otherwise "would require them to predict the future of [Young’s] failure to comply with the discovery rules.”
. According to Dr. Smith and BMH-D, ”[a]s the motion to withdraw in this case was denied, ... [Young] w[as] not allowed to attempt to contradict the matters 'conclusively established.’ ”
.This is true unless the motions were in violation of a local rule or a pretrial order. See Miss. R. Civ. P. 16.
Dissenting Opinion
dissenting.
¶ 26. In DeBlanc v. Standi,
¶ 27. While the trial court generally has broad discretion over pretrial discovery matters, matters conclusively established are not necessarily “irrevocably admitted.” Educ. Placement Servs. v. Wilson,
While Rule 36 is to be applied as written, it is not intended to be applied in Draconian fashion. If the Rule may sometimes seem harsh in its application, the harshness may be ameliorated by the trial court’s power to grant amendments or withdrawals of admissions in proper circumstances. The trial court’s ruling in this regard is subject to review for abuse of discretion. The purpose of the rule is to determine which facts are not in dispute. [7 James W. Moore, et al., Moore’s Federal Practice ¶ 36.02[1] at 36-37) (3d ed. 2001) ]. It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance. Just as a matter admitted is “conclusively established” by the express terms of the Rule, the trial court is likewise directed to carefully examine a Rule 36(b) motion under the two-prong test there provided.
DeBlanc,
¶ 28. The trial judge in the present case denied the plaintiffs’ motion to withdraw the deemed admissions because (1) the plaintiffs did not offer an explanation for the seven-year delay in seeking a withdrawal and because (2) there were “no compelling circumstances to justify allowing an untimely reply to avoid admissions.” Although the trial judge’s opinion quoted the language of Rule 36(b), it did not apply the two-pronged test of that rule, that is, whether “the presentation of the merits of the action will be subserved” and whether “the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” M.R.C.P. 36(b). Instead, the trial court focused on the delay between the requests for admission and the motion for withdrawal, not on the effect his ruling would have on resolution of the case on its merits.
¶ 30. With respect to the first prong of the test, i.e., whether “the presentation of the merits of the action will be subserved” by allowing the withdrawal, the parties do not dispute that a trial on the merits is foreclosed if the default admissions are allowed to stand. Dr. Smith had asked the plaintiffs to admit that they had engaged no medical expert to testify on their behalf. Without an expert, one cannot establish causation in a medical malpractice case. Hubbard v. Wansley,
¶ 31. With respect to the second prong, this Court has not squarely addressed what constitutes prejudice with respect to Rule 36(b) motions. However, cases interpreting the federal rules of civil procedure hold that, “[t]he reference to ‘prejudice’ in Rule 36(b) is to the prejudice stemming from reliance on the binding effect of the admission.” 8B Charles Alan Wright, et al., Federal Practice and Procedure § 2264, at 387-95 (3d ed. 2010) (citations omitted).
¶ 32. It is plain that prejudice does not exist with respect to the defendants in this case; they cannot show that they relied on the default admissions either entirely or in part. The plaintiffs provided the defendants the identity of their expert and a summary of his expected testimony on December 21, 2001. Although Dr. Smith had filed a motion for summary judgment the day before, based on the plaintiffs’ failure to respond to requests for admission, Dr. Smith abandoned that motion and chose to proceed by fully engaging in the usual pretrial discovery. Both Dr. Smith and BMH-D participated in deposing Dr. Hansen, the plaintiffs’ expert, and both sought summary judgment based on Dr. Hansen’s deposition testimony. During that time, and through the ensuing years of active litigation of this case, Dr. Smith never sought to set his original summary judgment motion for hearing. That did not occur until March of 2009, when Dr. Smith “tagged along” in the hospital’s renewal of Dr. Smith’s dormant 2001 summary judgment motion. Notably, BMH-D did not raise the issue of the plaintiffs’ untimely response to Dr. Smith’s requests until the case was appealed to this Court on other grounds. Clearly, the defendants were not proceeding in reliance on the deemed admissions, but instead forsook them while actively engaging in the discovery process with respect to the plaintiffs’ medical expert. That the plaintiffs did not file a motion to withdraw the default admissions for seven years did nothing to affect defendants’ actions in defending this case. The seventy-one days between the day the requests were filed and the day they were answered is negligible when compared to the eight years that passed between the filing of the complaint and the latest motion for summary judgment.
¶ 33. The majority relies heavily on Earwood v. Reeves,
¶ 34. The opinion in Earwood,
¶ 35. Finally, I note that “the purpose of requests for admissions is to narrow and define issues for trial. Properly used, requests for admissions serve the expedient purpose of eliminating the necessity of proving essentially undisputed and peripheral issues of fact.” Haley v. Harbin,
¶ 36. The plain language of Rule 36(b) of the Mississippi Rules of Civil Procedure provides that a trial court may permit withdrawal or amendment, of admissions where to grant the motion would subserve the presentation of the merits of the case, and the party who obtained the admissions cannot show that withdrawal would prejudice his or her ability to present his or her position on the merits. Once a party has properly entered a motion to withdraw or amend admissions, the trial court should evaluate that motion according to the terms of the two-pronged test outlined in Rule 36(b). In the present case, the test was ignored. Because both prongs weigh heavily in favor of the plaintiffs, and because the defendants clearly did not rely on these deemed admissions while engaging in years of litigation, the trial court abused its discretion in denying the plaintiffs’ motion to withdraw. Accordingly, I would reverse summary judgment and allow the ease to proceed to an adjudication on the merits.
. Rule 36(b) of the Federal Rules of Civil Procedure is almost identical to our Rüle 36(b):
A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment 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. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.
Concurrence Opinion
specially concurring.
¶ 25. I agree with the majority’s affir-mance of summary judgment in favor of Dr. Robert Smith and Baptist Memorial Hospital-DeSoto, Inc. I write separately, however, to emphasize the two-pronged test outlined in Rule 36(b) of the Mississippi Rules of Civil Procedure. In deciding to allow withdrawal or amendment of a deemed admission, the trial judge should consider whether withdrawal or amendment promotes the presentation of the underlying merits, and whether the opposing party has shown that the withdrawal or amendment would result in unfair prejudice to the party’s ability to maintain the case or defend against it. M.R.C.P 36(b). This Court has directed trial courts to carefully examine Rule 36(b) motions under this two-pronged test. DeBlanc v. Stancil,
DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.