United States District Court, W.D. Louisiana, Alexandria Division
MARKS REAL ESTATE CO.
RICHARD E. JEWELL, ET AL
L. Hornsby U.S. Magistrate Judge
Marks Real Estate Company, LLC (“Marks”)
contacted insurance agent Richard Jewell (“Mr.
Jewell”) about placing a flood insurance policy on a
structure in Rapides Parish. Jewell obtained a policy through
Wright National Flood Insurance Company
(“Wright”). The structure suffered flood damage,
but Wright denied the claim on the grounds the structure was
built entirely over water and, therefore, ineligible for
served requests for admissions and other written discovery on
local counsel for Wright on or about January 14, 2019. Due to
an administrative error, the discovery was not brought to
Wright's counsel's attention. On February 20, 2019,
Marks' counsel emailed Wright's counsel and asked
about the status of the outstanding discovery. Wright's
counsel responded by asking how the discovery was sent
because she did not see where she had received it. About 20
minutes later, and before Marks' counsel could respond,
Wright's counsel advised that she found the discovery
requests at her legal assistant's desk. At that time,
Wright's counsel requested a 30-day extension of time to
respond. In response, Marks' counsel pointed out the
requests for admissions were deemed admitted, but Marks'
counsel agreed to a 20-day extension of time to answer the
requests for production. Wright's counsel responded to
the requests for admissions a few hours later.
the court is Wright's Motion to Withdraw or Amend its
Deemed Admissions. Doc. 41. Wright argues that the responses
were only a day or so late, the delay was caused by
inadvertence and excusable neglect, and there is no actual
prejudice to Marks.
argues that the untimely responses submitted by Wright were
not valid responses because they were not signed or verified
by the client. Marks points out that it was its counsel's
inquiry to Wright's counsel regarding the lack of
responses that caused the so-called short delay in
Wright's response. Marks suggests that allowing
withdrawal of the admissions would essentially penalize Marks
for inquiring about the status of its outstanding discovery
requests. Marks also argues that it would be prejudiced if
the admissions are withdrawn, because Marks will not have a
sufficient opportunity to obtain the facts sought prior to
the March 20, 2019 oral argument on a pending Report and
Rule of Civil Procedure 36(a) provides that requests for
admissions are deemed admitted if not answered within 30
days. Any matter admitted under Rule 36(a) is deemed
conclusively established unless the court permits withdrawal
of the admission. Fed.R.Civ.P. 36(b). The court may permit
withdrawal of an admission if the withdrawal (1) would serve
the presentation of the case on its merits, but (2) would not
prejudice the party that obtained the admission in its
presentation of the case. Kingman Holdings, LLC
v. Bank of America, 2015 WL 11661768 (W.D. Tex.
2015), citing In re Carney, 258 F.3d 415, 419 (5th
Cir. 2001). Even when the two-prong test is satisfied,
however, the court retains discretion to deny a request to
withdraw an admission. Id.
first prong of the Rule 36(b) framework requires that the
withdrawal promote the presentation of the claims on the
merits of the case. Mendez v. Joeris General Contractors,
Ltd., 2013 WL 3153982 (W.D. Tex. 2013). Withdrawal of a
deemed admission is appropriate in cases in which the
admissions at issue directly bear on the merits of the case.
second prong established by the Rule 36(b) framework requires
that the party opposing withdrawal not be prejudiced by the
withdrawal. Mendez, supra. Prejudice may
occur where the party faces special difficulties caused by a
sudden need to obtain evidence upon withdrawal or amendment
of an admission. American Automobile Ass'n v. AAA
Legal Clinic, 930 F.2d 1117, 1120 (5th Cir. 1991).
However, the necessity of having to convince a trier of fact
of the truth of a matter erroneously admitted is not
sufficient. North Louisiana Rehab Ctr., Inc. v. United
States, 179 F.Supp.2d 658, 663 (W.D. La. 2001).
consideration of the relevant factors, the best exercise of
this court's discretion is to grant the motion to
withdraw the admissions. The admissions directly bear on the
issue of whether federal funds are at risk in this case.
Indeed, Marks states that FEMA is presumed to pay the
litigation expenses and any resulting damages awards in the
absence of any written notification to the insurance carrier
that it will not. Because the admissions bear directly on a
key issue on the case, withdrawal is appropriate.
Marks has not satisfied the court that it would suffer any
real prejudice by the withdrawal. The parties' proposed
plan of work suggests August 30, 2019 as the deadline for
completion of fact discovery. Doc. 33. No. depositions have
been taken. The only pending substantive motion is a motion
to dismiss, and the withdrawal of the admissions will have no
effect on the outcome of that motion, which is limited to the
court's review of the pleadings.
district court's decision to permit the withdrawal of
admissions is reviewed by the Fifth Circuit for abuse of
discretion. Williams v. Wells Fargo Bank, 560
Fed.Appx. 233, 244 (5th Cir. 2014). This case is still in its
infancy. Therefore, it would likely be an abuse of this
court's discretion not to allow the withdrawal of the
admissions. Accordingly, Wright's Motion to Withdraw or
Amend its Deemed Admissions (Doc. 41) is ...