Opinion
Case No. 2:01-CV-973 ST
April 2, 2003
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
On December 11, 2002, Plaintiffs filed a Motion for Summary Judgment, arguing that due to the Defendants' failure to timely respond to the requests for admissions, pursuant to Fed.R. of Civ. P. Rule 36, that the requests for admissions are deemed admitted and can be used conclusively against Defendants in the Motion for Summary Judgment. On January 21, 2003, Defendants filed their response to Plaintiffs Motion for Summary Judgment. On February 10, 2003, Plaintiff submitted its reply. Upon consideration of the motion, memoranda, and being otherwise fully informed, the Court will DENY Plaintiffs Motion for Summary Judgment for the reasons set forth below:
DISCUSSION
Federal Rules of Civil Procedure Rule 36 provides that a party must answer each matter for which an admission is requested within 30 days or the matter is deemed admitted. Yet, any matter admitted "is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Fed.R.Civ.P. 36(b). The court may permit such withdrawal or amendment "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admissions fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits." Fed.R.Civ.P. 36(b).
The Court finds that the Defendants' response to Plaintiffs Motion for Summary Judgment was in essence, a motion for withdrawal of the admissions. See, e.g., Bergemann v. United States, 820 F.2d 1117, 1121 (10th Cir. 1987) (holding that Plaintiffs "motion for summary judgment and the recorded pre-trial hearings in this case, were, in essence, motions to withdraw the admissions."). Additionally, the Court finds that while the responses were late, the Defendants did file responses to both sets of Plaintiffs requests for admissions. The Court finds that permitting Defendants to withdraw the admissions promotes a decision on the merits. The Court further finds that the Plaintiff has failed to demonstrate prejudice. "The prejudice contemplated by Rule 36(b) is not simply that the party who obtained the admissions now has to convince the jury of its truth. Something more is required." Bergemann, 820 F.2d at 1121.
For the reasons set forth above, the Court hereby DENIES Plaintiffs Motion for Summary Judgment, without prejudice. The Defendants will be allowed to withdraw their admissions.
SO ORDERED.