Central States, Southeast and Southwest Areas Pension Fund et al v. Profoam, L.L.C.

MOTION

N.D. Ill.April 13, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION CENTRAL STATES, SOUTHEAST AND ) SOUTHWEST AREAS PENSION FUND; ) CENTRAL STATES SOUTHEAST AND ) SOUTHWEST AREAS HEALTH AND ) WELFARE FUND; and ARTHUR H. BUNTE, ) Jr., as Trustee, ) Case No. 13-cv-9019 ) Plaintiffs, ) Judge Elaine E. Bucklo ) v. ) Magistrate Judge Schenkier ) PROFOAM, L.L.C., ) a Louisiana limited liability company, ) ) Defendant. ) PLAINTIFFS’ MOTION TO HAVE THEIR FIRST SET OF REQUESTS TO ADMIT DEEMED ADMITTED Pursuant to Federal Rule of Civil Procedure 36(a)(3), Plaintiffs, Central States, Southeast and Southwest Areas Pension Fund, Central States, Southeast and Southwest Areas Health and Welfare Fund, and Arthur H. Bunte, Jr., as Trustee, hereby move to have this Court deem admitted Plaintiffs’ First Set of Requests to Admit to Defendant Profoam, Inc. In support of this Motion, Plaintiffs state as follows: 1. Federal Rule of Civil Procedure 36(a)(3) provides that a matter set forth in a request to admit is “admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” The rule also states that a “shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.” Fed. R. Civ. P. 36(a)(3). TM: 544642 / 13310042 / 4/12/2016 1 2. Here, Plaintiffs previously served their First Set of Requests to Admit on Defendant. That set of requests, including copies of the exhibits thereto, is attached hereto as Exhibit 1. 3. As the Certificate of Service to the First Set of Requests to Admit shows, Plaintiffs’ undersigned counsel emailed that set of requests to Defendant’s counsel on February 3, 2016. (Ex. 1 at 11; Ex. 2, Affidavit of Andrew J. Herink (“Herink Aff.”), ¶ 2.) 4. Further, as the Certificate of Service also indicates, Plaintiffs’ undersigned counsel sent a copy of Plaintiffs’ First Set of Requests to Admit via overnight mail to Defendant’s counsel on February 3, 2016. (Ex. 1 at 11; Ex. 2, Herink Aff., ¶ 2.) 5. Accordingly, because service by mail is “complete upon mailing,” Fed. R. Civ. P. 5(b)(2)(C), Defendant was served with the First Set of Requests to Admit on February 3, 2016. 6. Yet, even though it has been more than 60 days since Defendant was served with Plaintiffs’ First Set of Requests to Admit, Defendant still has not served on Plaintiffs a written answer or objection to any of those requests. (Ex. 2, Herink Aff., ¶ 3.) 7. Further, the parties did not agree to modify the 30-day deadline set forth in Rule 36(a)(3). (Ex. 2, Herink Aff., ¶ 4.) Also, this Court has not entered any orders modifying that deadline. [Motion continues on next page.] TM: 544642 / 13310042 / 4/12/2016 2 8. Accordingly, because Defendant failed to respond to Plaintiffs’ First Set of Requests to Admit within 30 days, Plaintiffs move this Court to deem those requests admitted pursuant to Rule 36(a)(3). Plaintiffs are attaching as Exhibit 3 hereto a proposed order granting that relief, and they will also be emailing a copy of that proposed order to this Court’s proposed orders’ email address. WHEREFORE, Plaintiffs respectfully request that this Court deem admitted Plaintiffs’ First Set of Requests to Admit. Respectfully submitted, /s/Andrew J. Herink Andrew J. Herink (#6303510) Attorney for Plaintiffs Central States Law Department 9377 W. Higgins Road Rosemont, Illinois 60018 Telephone: (847) 939-2458 Fax: (847) 518-9797 Date: April 12, 2016 TM: 544642 / 13310042 / 4/12/2016 3 CERTIFICATE OF SERVICE I, Andrew J. Herink, one of the attorneys for Plaintiffs, certify that on April 12, 2016, I caused the foregoing Motion to be filed electronically. That filing was served on all necessary parties via the Court’s electronic filing system. /s/ Andrew J. Herink Andrew J. Herink (ARDC #6303510) Attorney Central States, Southeast and Southwest Areas Pension Fund 9377 West Higgins Road Rosemont, IL 60018-4938 (847) 939-2458 aherink@centralstatesfunds.org April 12, 2016 Counsel for Plaintiffs TM: 544642 / 13310042 / 4/12/2016 4