Opinion
Civ. No. 99-2172-GTV.
March 21, 2000.
MEMORANDUM AND ORDER
Plaintiff pro se has filed numerous items in this case. This Memorandum and Order addresses those items relating to admissions filed by plaintiff. On May 13, 1999, plaintiff filed a "Notice of Admission" (doc. 5) and served it upon defendant. He later filed and served documents entitled "Notice of Admission" 2 through 16 (docs. 20, 22, 35, 37, 39, 41, 45, 46, 47, 48, 49, 53, 54, 56, and 92). In each "Notice of Admission," except the first, plaintiff requested "the court to make a finding of fact after the defendants [sic] have filed a response to this admission." Defendant filed and served responses to the first Notice (doc. 15) and to Notices 2, 3, 4, 5, 6, and 7 (docs. 42, 43, 83, 84, 85, and 86). The responses object to the form of the ostensible admissions and assert that plaintiff has served no requests for admission pursuant to Fed.R.Civ.P. 36(a). It denies the admissions suggested by the first seven notices, nevertheless, to the extent they can be construed as requests pursuant to Fed.R.Civ.P. 36.
Plaintiff has also filed a "Plaintiff Objection to Defense" (doc. 71). It states that defendant objected to some unidentified requests for admissions on grounds of vagueness and ambiguity. Plaintiff seeks an order deeming the matters contained in those admissions admitted. Defendant has not responded to the filed objection.
Plaintiff has also filed six motions, relating to the notices of admission: Plaintiff [sic] Request to Compel the Defendant to Respond to Admissions (doc. 17); Motion to Determine Sufficiency of Answer to Admission (doc. 31); Motion to Determine Sufficiency of Response to Admission 3 (doc. 58); Motion to Determine Sufficiency of Answer to Admission (doc. 59); Motion to Determine Sufficiency of Answer to Admission 4-7 (doc. 91); and Motion to Determine Sufficiency of Answer to Admissions 8, 10-15 (doc. 111). Defendant opposes the motions and seeks an award of fees and costs incurred in responding to the fifth motion.
Showing reasonable leniency to the pro se plaintiff, the Court construes the notices served and filed by plaintiff as requests for admission served pursuant to Fed.R.Civ.P. 36(a). Although plaintiff could have more clearly requested defendant to admit the matters set forth in the notices, each notice contains numbered paragraph(s) containing matters to which plaintiff apparently wants an admission by defendant. Excluding the first notice, furthermore, each notice mentions Fed.R.Civ.P. 36 and requests the Court to make a finding of fact after the defendant files a response. In addition defendant has responded to the first seven notices to cover the possibility that the Court might construe them as requests for admission. The record, furthermore, reflects service of responses to the other nine notices. ( See Certs. of Serv., docs. 94, 106, 108, and 127.) Defendant will thus incur no prejudice, if the Court construes the notices as requests for admission.
If plaintiff intends to proceed without counsel, he should familiarize himself with the Rules of Practice of the United States District Court for the District of Kansas, as well as the Federal Rules of Civil Procedure. D.Kan. Rule 26.3, for example, provides that parties not file requests for admission. Parties should file a certificate of service, stating the type of discovery served, the date and type of service, and the party served. Plaintiff here filed each notice of admission. He also served notices without leave of court before the time specified in Fed.R.Civ.P. 26(d). Such service violates Fed.R.Civ.P. 36(a). These procedural infirmities can create confusion and uncertainty as to whether the notices are intended to be requests pursuant to Fed.R.Civ.P. 36(a).
Fed.R.Civ.P. 36(a) governs requests for admission. It provides:
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)(1) 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. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Without leave of court or written stipulation, requests for admission may not be served before the time specified in Rule 26(d).
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing, subject to Rule 29, 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 the party's attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
The notices of admission here request the Court to "make a finding of fact" after defendant responds to them. He cites no authority or reason for the Court to do so at this stage of the litigation. Upon a proper motion to determine the sufficiency of an answer, the Court may deem a matter admitted. It may also order defendant to serve an amended answer. To the extent plaintiff intends the notices to be motions to determine the sufficiency of future answers of defendant, the Court overrules them as premature. A party should not move to determine sufficiency, until the time for responding to the requests for admission has elapsed. The responses may be adequate. If so, there is no occasion for a motion. Defendant has denied or asserted an objection, furthermore, to the sixteen notices filed in this case. Timely denials or objections preclude the Court from deeming the requested matters admitted, until the parties have addressed their adequacy or inadequacy.
By his Objection to Defense (doc. 71), plaintiff asserts that defendant has responded to several requests for admission by asserting that they are vague or ambiguous. Plaintiff hypothesizes that defendant may consider such assertions as seeking a more definite statement. He thus suggests that defendant does not comply with Fed.R.Civ.P. 12(e), the rule governing motions for more definite statement. Plaintiff misses the point. By asserting that the requests are vague or ambiguous, defendant does not make a motion for more definite statement. Such a motion addresses only the pleadings in the case. Pleadings allege substantive claims and defenses of the parties. Pleadings do not include motions. See Fed.R.Civ.P. 7. Nor do they include requests for admission under Fed.R.Civ.P. 36. Defendant here has merely set forth a reason for neither admitting nor denying the requests. Fed.R.Civ.P. 36(a) permits parties to object to requests for admission. Plaintiff may move to determine the sufficiency of objections. He may not properly ask the Court to deem them admitted, however, if the respondent has asserted an objection. If plaintiff intends the Objection to Defense to be a motion, the Court overrules it.
The Court now proceeds to the documents specifically titled motions. By his motion to compel, plaintiff wants an order to compel defendant to respond to "all admissions." The other motions ask the Court to determine the sufficiency of the responses to his notices of admission, other than Notices 9 and 16. Defendant has denied each notice at issue, except for Notice 15. It objects that Notice 15 exceeds the number of requests for admission permitted by the Scheduling Order in this case.
The Court overrules these motions. Parties may properly respond to a request for admission with a denial. No further response is warranted. Neither the Federal Rules of Civil Procedure nor the Rules of Practice of the United States District Court for the District of Kansas require parties to explain a denial. Fed.R.Civ.P. 37(c)(2) provides the proper recourse, if plaintiff can later prove a denied matter is actually true. The Rule provides:
If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 36(a), or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (D) there was other good reason for the failure to admit.
(emphasis added).
In filing his several "admissions" and motions, plaintiff appears to misunderstand the purpose and use of admissions under Rule 36. Requests for admissions, when properly used, can simplify and expedite the trial of a case. A party who admits a relevant matter eliminates the requirement for his opponent otherwise to prove it. If not admitted and the opponent later proves the requested matter, Rule 37(c) may apply to authorize sanctions of reasonable expenses and attorney's fees. A party requesting an admission, however, may not force his opponent to admit and not deny. The requesting party must instead proceed to trial and prove whatever relevant matter has thus been denied.
A party may also properly object that a request for admission exceeds the permissible number of requests. In this instance, the parties agreed to limit the number of requests for admission to twenty-five. ( See Form 35 Report of Parties' Planning Meeting, doc. 11.) The Court adopted the provisions of this report. (Scheduling Order, doc. 12, ¶ c.) The provision thus controls.
Plaintiff has served more than twenty-five requests for admission. One must count the number of actual requests for admission, not the number of documents served. The Court thus sustains the objection to Notice 15. The Scheduling Order provides that it "shall not be modified except by leave of Court upon a showing of good cause." ( Id. at 3.) Plaintiff has neither sought leave nor shown good cause to modify the Scheduling Order. Without good cause to modify the Scheduling Order, plaintiff is limited to the twenty-five requests for admission he has already served. Defendant need not respond to Notice 15.
Defendant seeks its fees and expenses incurred in responding to the fifth motion of plaintiff here at issue. Not counting the caption, certificate of service, and signature line, the response covers just over half a page. Although plaintiff perhaps took an unjustified position on the motion, the Court finds the burden to defendant in responding to be minimal. Monetary sanctions are unwarranted. The Court will admonish plaintiff, however, that Fed.R.Civ.P. 11 and 26(g) apply to his filings with the Court and appropriate sanctions can flow from taking an unjustified position on a motion.
Plaintiff makes numerous arguments, comments, suggestions, and accusations in the briefing before the Court. Other than the ones discussed herein, the Court finds none that warrant discussion.
For the foregoing reasons, the Court overrules the following motions filed by plaintiff: Request to Compel the Defendant to Respond to Admissions (doc. 17); Motion to Determine Sufficiency of Answer to Admission (doc. 31); Motion to Determine Sufficiency of Response to Admission 3 (doc. 58); Motion to Determine Sufficiency of Answer to Admission (doc. 59); Motion to Determine Sufficiency of Answer to Admission 4-7 (doc. 91); and Motion to Determine Sufficiency of Answer to Admissions 8, 10-15 (doc. 111). It also overrules the following filings to the extent plaintiff intended them as some sort of motion: Notices of Admission (docs. 5, 20, 22, 35, 37, 39, 41, 45, 46, 47, 48, 49, 53, 54, 56, and 92), and Plaintiff [sic] Objection to Defense (doc. 71).
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 21st day of March.
cc: All counsel and pro se parties
* Parties * * Attorneys *
THOMAS E SCHERER Thomas E Scherer plaintiff [COR LD NTC] [PRO SE] 7916 West 60th Street Merriam, KS 66202 913-831-3654
v.
GE CAPITAL Brian J. Finucane defendant [COR LD NTC] Nancy M. Leonard [COR LD NTC] Bioff, Singer Finucane 400 Stilwell Bldg. 104 West Ninth Street Kansas City, MO 64105 816-842-8770 FTS 842-8767