Opinion
Case No. 4:03-cv-0105-DFH-VSS.
September 7, 2004
ENTRY ON MOTION FOR SUMMARY JUDGMENT
In this diversity action, plaintiff Maleah Smith has sued her former attorney, Dwight Cosby, for legal malpractice. Cosby represented Smith in an employment discrimination case against her former employer, Smith v. Jeffboat, LLC, Cause No. NA 01-226-C H/H. This court dismissed the Jeffboat case on September 3, 2002 based on the plaintiff's repeated failures to comply with court orders, though the court did not distinguish between attorney and client in allocating blame for those failures. Four months later, attorney Cosby filed a motion for relief from the judgment, which the court denied on February 24, 2003. Smith then filed this action against Cosby on May 22, 2003.
The record in this case reflects a similar pattern of failure to comply with deadlines and with court orders. First, defendant Cosby failed to file a timely response to the complaint. Default was entered against him pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. That entry of default crossed in the mail with Cosby's belated "Motion for Enlargement of Time after Expiration of Time." The court granted relief from the default, noting:
In light of the allegations in plaintiff Smith's complaint against Cosby — involving a case with which this judge is familiar — the defendant's failure to meet the original deadline is troubling, and the court has doubts about defendant's need "to further investigate the allegations in the Plaintiff's Complaint." Nevertheless, because defendant has now appeared, because he has at least colorable defenses, and because decisions on the merits are favored over defaults, the court hereby VACATES the Entry of Default on June 30, 2003 and the damages hearing scheduled for September 15, 2003.
This near-miss apparently did not affect defendant Cosby's approach to the lawsuit. He then failed to file or serve initial disclosures required by Rule 26(a)(1) of the Federal Rules of Civil Procedure. He also failed to provide time responses to plaintiff Smith's discovery requests served on September 16, 2003. Those requests included a number of requests for admissions pursuant to Rule 36 of the Federal Rules of Civil Procedure. The requests for admissions asked Cosby to admit a number of specific failings in his prosecution of the Jeffboat suit. The requests for admissions also asked Cosby to admit that his representation "was beneath the applicable standard of care" and that his actions "caused damage to Maleah Smith."
On November 18, 2003, after Cosby had failed to serve timely responses to the requests for admissions, plaintiff Smith filed a motion for summary judgment on the basis of the matters deemed admitted by Cosby's failure to respond, as well as his failure to identify any witnesses or evidence that would support any defense he might have to the malpractice claim.
After obtaining an extension of time, Cosby responded to the motion for summary judgment on January 20, 2004. He also filed the same day his late Rule 26(a)(1) disclosures and a preliminary witness and exhibit list. Cosby's response to the motion for summary judgment asserted, without supporting evidence, that Ms. Smith had been responsible for the problems that led to dismissal of the Jeffboat lawsuit. His response, however, completely missed the point of Smith's motion — his failure to respond to the requests for admissions. On that point, he said only that plaintiff's argument was "now moot as the Defendant has provided answers and responses to the discovery request." That response revealed a serious misunderstanding of the consequences of the missed deadlines and the applicable law.
On July 29, 2004, in reviewing the ripe motion for summary judgment, the court noted Cosby's failure to provide any accompanying proof or explanation for his failure to respond to the requests for admissions. The court also noted that such proof or explanation is ordinarily required for relief from an admission, quoting Rule 36(b) of the Federal Rules of Civil Procedure. The court therefore ordered Cosby to show cause no later than August 16, 2004 why the court should permit withdrawal of the admissions in question.
As the reader might have predicted by now, Cosby failed to respond to the order to show cause. The motion for summary judgment is now ripe for decision. The court grants the plaintiff's motion for summary judgment as to liability and sets a damages hearing.
Under Rule 36 of the Federal Rules of Civil Procedure, a party may serve a written request on another party for an admission, for purposes of the case, of the truth of any matters properly subject to discovery. Under Rule 36(a), the party served with such requests has 30 days to respond. The rule addresses failure to respond: "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," the party to whom the request is directed serves a written answer or objection signed by the party or attorney. When a matter is deemed admitted, such as when no timely response is served, the matter is
conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provision of Rule 16 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 that party in maintaining the action or defense on the merits.
Defendant Cosby has asserted only in conclusory terms that he has good defenses to Smith's claim. In the spirit of Rule 36(b), and despite Cosby's failure to invoke its protections properly, the court's July 29th order to show cause gave Cosby a final opportunity to show that he should be granted relief under Rule 36(b). That rule gives the court discretion to show such flexibility in the interest of deciding cases on their merits. E.g., Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1059 (7th Cir. 2000). Cosby, however, failed to respond even to that invitation (framed, of course, as an order). In short, Cosby has repeatedly failed to show that he should be relieved from the effects of his admissions.
The Seventh Circuit has often affirmed summary judgments resulting from requests for admission, including failures to serve timely responses to requests for admissions. See, e.g., Kalis, 231 F.3d at 1059 (affirming summary judgment for defendant where plaintiff failed to respond to requests for admissions and only belatedly asked to withdraw admissions); United States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987) (affirming summary judgment for plaintiff where defendant failed to respond to requests for admissions in tax case and failed to seek to withdraw admissions). As the Seventh Circuit explained in Kasuboski: "The failure to respond to admissions can effectively deprive a party of the opportunity to contest the merits of a case. This result, however, is necessary to insure the orderly disposition of cases; parties to a lawsuit must comply with the rules of procedure. In addition, the harshness is tempered by the availability of the motion to withdraw admissions, a procedure which the defendants did not employ." 834 F.2d at 1350.
Those comments apply directly to this case. In light of the history of Cosby's performance in the Jeffboat case, the earlier default in this case, and his failure to respond to the order to show cause in the present case, there is no reason here to relieve Cosby of the consequences of his unexplained and unexcused failure to serve a timely response to the requests for admissions.
Defendant Cosby is therefore deemed to have admitted that he owed a professional duty of care to plaintiff Smith, that he breached that duty of care, and that the breach caused damage to Smith. See Requests for Admission Nos. 1, 18, and 19. To prove a legal malpractice claim, a plaintiff-client must show: (1) employment of the attorney (the duty); (2) failure by the attorney to exercise ordinary skill and knowledge (the breach); (3) proximate cause (causation); and (4) loss to the plaintiff (damages). Picadilly, Inc. v. Raikos, 582 N.E.2d 338, 344 (Ind. 1991), quoting Schneider v. Wilson, 521 N.E.2d 1341, 1343 (Ind.App. 1988); accord, e.g., Fricke v. Gray, 705 N.E.2d 1027, 1033 (Ind.App. 1999). In other words, Cosby's failure to respond to the requests for admission had the effect of admitting the essential elements of liability for legal malpractice, with only the amount of damages to be determined.
Accordingly, plaintiff Smith's motion for summary judgment as to liability is hereby granted. The court will hold an evidentiary hearing on damages on Monday, November 1, 2004, at noon in the Lee H. Hamilton United States Courthouse, New Albany, Indiana. The court intends to try the issues of damages to the court. If either party wishes to have a jury trial on damages, the party shall file with the court and serve on the opposing party notice of such request no later than September 30, 2004.
So ordered.