United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
a wrongful death action asserting both federal civil rights
and state law claims. Plaintiff alleges that her son, Edward
Murphy ("Murphy"), suffered a heart attack while
incarcerated for twelve (12) hours in the Assumption Parish
Detention Center ("Detention Center") and died
shortly afterwards. Plaintiff claims that the decedent was
stopped by a Louisiana state police officer in Napoleonville,
Louisiana, for a sticker inspection and suspicion of driving
while intoxicated; that he was arrested and booked in the
Detention Center on February 3, 2018, around 6:30 p.m; and
that on the way to the Detention Center, Murphy told the
officer he had a heart condition and needed to take his
medication three (3) times a day. Record Doc. No. 1,
Complaint at pp. 3-4. Plaintiff alleges that the officer
stopped at Murphy's home and retrieved his medication
before going to the Detention Center, but that employees at
the Detention Center failed to provide Murphy with his
medication, which caused him to go into cardiac arrest at
about 6:25 a.m. and die at 8:11 a.m. Id. at p. 4.
Motion for Partial Reconsideration Pursuant to Fed.R.Civ.P.
59(e) and to Withdraw Admissions of Fact Pursuant to
Fed.R.Civ.P. 36(b), Record Doc. No. 20, is now pending before
me. Plaintiff filed a timely opposition memorandum, Record
Doc. No. 23. The motion is GRANTED IN PART AND DENIED IN PART
motion is denied insofar as it seeks reconsideration of my
previous order, in which I found that defendant had waived
all objections to interrogatories and requests for production
of documents by failing to respond to discovery requests
issued to defendant Rodrigue. Record Doc. No. 16. A Rule
59(e) motion “is not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been
offered or raised before the entry of judgment.”
Templet v. HydroChem, Inc., 367 F.3d 473, 479 (5th
Cir. 2014) (citation omitted); accord Naquin v. Elevating
Boats, L.L.C., 817 F.3d 235, 240 n.4 (5th Cir. 2016);
LeClerc v. Webb, 419 F.3d 405, 412 n.13 (5th Cir.
2005). “These motions cannot be used to raise
arguments which could, and should, have been made before
the judgment issued. Moreover, they cannot be used to
argue a case under a new legal theory.”
Naquin, 817 F.3d at 240 n.4 (quotation and citations
omitted) (emphasis added).
their opposition memorandum to plaintiff's motion to
compel, Record Doc. No. 13, defendants failed to make any
argument that their responses applied to both
defendants. Though plaintiff attached an email exchange
between counsel for both sides that mentioned that the
responses would apply to both defendants, Record Doc. No.
12-7 at p. 2, plaintiff's motion still sought responses
from defendant Rodrigue and defendant Falcon's discovery
responses on their face in no way indicated that they applied
to both defendants. Record Doc. No. 12-4 at pp. 1-20.
Accordingly, defendant's motion is denied and all
objections-except attorney-client privilege and work product-
motion is granted, however, insofar as it seeks withdrawal of
deemed admissions. The court may permit withdrawal or
amendment of matters deemed admitted by operation of law
“if it would promote the presentation of the merits of
the action and if the court is not persuaded that it
would prejudice the requesting party in maintaining or
defending the action on the merits.” Fed.R.Civ.P. 36(b)
(emphasis added). Relying heavily upon Carney v. Internal
Rev. Serv., 258 F.3d 415 (5th Cir. 2001), the Fifth
Circuit has summarized the law concerning withdrawal of
Although the court has considerable discretion to permit
withdrawal or amendment, a deemed admission may only be
withdrawn when the moving party satisfies the conditions set
forth in Rule 36(b). American Auto. Ass'n v. AAA
Legal Clinic, 930 F.2d 1117, 1119 (5th Cir. 1991);
Carney v. IRS, 258 F.3d 415, 419 (5th Cir. 2001).
Under Rule 36(b), “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.” Fed.R.Civ.P.
36(b). And, even when Rule 36(b)'s two-factor
test has been satisfied, the district court “still has
discretion to deny a request to withdraw or amend an
admission.” Carney, 258 F.3d at 419. . . .
[O]ther factors considered are whether the [moving party] has
demonstrated that the merits would be served by advancing
evidence showing “the admission is contrary to the
record of the case, ” or that the admission “is
no longer true because of changed circumstances or [that]
through an honest error a party has made an improvident
admission.” N. La. Rehab. Ctr. Inc. v. United
States, 179 F.Supp.2d 658, 663 (W.D. La. 2001) (quoting
Ropfogel v. United States, 138 F.R.D. 579, 583 (D.
Kan. 1991)); accord Branch Banking & Trust Co. v.
Deutz-Allis Corp., 120 F.R.D. 655, 658-59 (E.D. N.C.
1988) (denying withdrawal because the movants for withdrawal
proffered “no affidavit, verified pleading, or other
evidence . . . to suggest the admission, if left standing,
would render an unjust result under the law”). This
circuit has also determined that a court acts within its
discretion in considering the fault of the party seeking
withdrawal, Pickens v. Equitable Life Assurance
Soc., 413 F.2d 1390, 1394 (5th Cir. 1969) or its
diligence in seeking withdrawal, Covarrubias v. Five
Unknown INS/Border Patrol Agents, 192 Fed.Appx. 247,
248[, 2006 WL 1816311, at *1] (5th Cir. 2006) (per curiam)
Turning to Rule 36(b)'s second requirement, . . .
“[c]ourts have usually found that the prejudice
contemplated by Rule 36(b) relates to special difficulties a
party may face caused by a sudden need to obtain evidence
upon withdrawal or amendment of an admission.”
American Auto., 930 F.2d at 1117. The Eighth Circuit
has interpreted this standard to not encompass the increased
expenses caused by the need for additional discovery to
replace withdrawn admissions, Gutting v. Falstaff Brewing
Corp., 710 F.2d 1309, 1314 (8th Cir. 1983), and other
courts contemplating the standard have concluded that merely
having to prove the matters admitted does not constitute
prejudice. No. La. Rehab. Ctr., 179 F.Supp.2d at
663. Courts have also considered, however, within the
prejudice analysis, the timing of the motion for withdrawal
as it relates to the diligence of the party seeking
withdrawal and the adequacy of time remaining for additional
discovery before trial. See, e.g., Branch
Banking & Trust Co., 120 F.R.D. at 660
(denying withdrawal where party, with due diligence, could
have accessed the information needed to respond to request
for admissions yet had failed to do so); No. La. Rehab.
Ctr., 179 F.Supp.2d at 663 (permitting withdrawal when
party obtaining the admissions failed to show that it would
not be able to present alternative evidence and adequate time
remained before trial to conduct limited discovery).
Le v. Cheesecake Factory Restaurants Inc., No.
06-20006, 2007 WL 715260, at *1-3 (5th Cir. Mar. 6, 2007)
instant case illustrates the kinds of difficulties that
result from sloppy lawyering arising from failure to comply
with the precise requirements of the Federal Rules.
Nevertheless, balancing the foregoing factors militates in
favor of permitting withdrawal of the deemed admissions. In
support of this motion, defendants have persuasively argued
and I find that the merits would best be served by permitting
withdrawal of the deemed admissions. Defendants assert that
the parties had reached an agreement that the responses to
the requests for admissions to defendant Falcon were also
meant to apply to defendant Rodrigue. This assertion is
supported by an email from plaintiff's counsel to
defendants' counsel confirming their understanding that
the responses on behalf of one defendant only were intended
to apply to both defendants.
Doc. Nos. 20-1 at pp. 3-4 and 12-7 at p. 2. Ample time
remains before trial, so that plaintiff will not be unduly
prejudiced in her ability to obtain evidence or bear her
burden of proof without reliance on the deemed admissions. I
discern no bad faith or dilatory motive on the part of
defendants in connection with the formerly deemed admissions.
On the contrary, the prompt filing of this motion and the
service (albeit late) of responses to the requests for
admissions and supplemental responses to plaintiff's
other discovery requests, Record Doc. No. 20-4, establish
some level of due diligence on the part of defendants in
correcting this situation.
the deemed admissions are withdrawn. However, IT IS
ORDERED that, no later than June 12,
2019, counsel for defendants must confirm in writing
and file in the record an affidavit attesting that the
admissions served on plaintiff on behalf of defendant Falcon
also apply to defendant Rodrigue. Thereafter, defendants'
responses and/or denials served on plaintiff will constitute
both defendants' responses to plaintiff's
requests for admissions in this case. Defense counsel is
hereby instructed to pay close attention to the precise
requirements of the applicable Federal Rules and the Rule 16
deadlines established by the court. See Record Doc.
No. 8 at p. 1 ("deadlines . . . are not
'suggestions' but firm deadlines which will
be strictly enforced"). ...