Summary: Defendant Fargo Assembly filed a motion to deem facts admitted as a result of plaintiff's failure to answer a Request for Admissions. Plaintiff objected to the Request for Admission because they were served with insufficient time to respond within the scheduling order deadlines. The Request for Admissions at issue were more akin to Interrogatories than Requests for Admission, and in the court's view were being used as a discovery device. Plaintiff's objection to the timeliness was sustained. Defendant's Motion to Deem Facts Admitted was denied.

Case Name: EEOC v. Fargo Assembly Co.
Case Number: A3-99-27
Docket Number: 55
Date Filed: 6/28/00
Nature of Suit: 442

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

Equal Employment Opportunity Commission,

Plaintiff,

-vs-

Fargo Assembly Company,

Defendant.

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) Civil No. 3:99cv27
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) ORDER
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Defendant Fargo Assembly Company ("Fargo Assembly") has filed a motion to deem facts admitted (Doc. # 37), asserting that the Plaintiff Equal Employment Opportunity Commission ("EEOC") failed to respond to its Request for Admissions Directed to Plaintiff, Set II served April 13, 2000. In response to the motion, EEOC contends that it properly objected to the Request for Admissions as untimely. EEOC further contends that the remedy sought by Fargo Assembly is not warranted, but rather if the court finds the objection insufficient, the appropriate relief is to order EEOC to answer the Requests.

Fargo Assembly takes the position that since Requests for Admissions are not discovery devices, the discovery deadlines found in the scheduling order of this court do not apply to the request it served in April.(1)

In support of its motion, Fargo Assembly cites several cases which suggest that a Request for Admission, although found in the discovery section of the Rules of Civil Procedure, is not exclusively a discovery device. See O'Neill v. Medad, 166 F.R.D. 19 (E.D. Mich. 1996); Greenfeld v. Memorial Kettering Hosp., 2000 WL 351395, at 5 (S.D.N.Y. April 5, 2000). The court in Greenfeld v. Memorial Kettering Hosp., 2000 WL 351395, at 5 (S.D.N.Y. April 5, 2000) recognized a contradiction in its own circuit and entered an order allowing an untimely Request for Admissions on the basis that Admissions were never contemplated at the time of the scheduling conference and were "not deemed part of the discovery schedule." Id. at 4. The court in Greenfeld further found that the circumstances surrounding the timeliness of the request, recent production of a relevant document related to the request, explained and excused the tardiness of the request. The Greenfeld court did not affirmatively hold that a Request for Admission is not a discovery device, but rather found in that instance, given the nature of the request, the plaintiff's request would not now be barred because of the schedule. Id. at 4.

EEOC argues that Requests for Admission are discovery and to conclude otherwise would not only be contrary to the rules, but would wreak havoc on scheduling matters. EEOC also cites numerous cases in support of its position. In Bailey v. Broder, 1997 WL 752423 (S.D.N.Y. 1997), the plaintiff served numerous requests for admission in contravention of the court's order, arguing such was permissible "because a request for admission under Fed. R. Civ. P. 36 is 'not a discovery procedure at all' and therefore 'not within the parameters of a general cutoff for discovery in a scheduling order.'" The court, in recognizing that there is a disagreement among the districts, held that the judges in the Southern District of New York "have consistently held that requests for admission are to be made within the discovery deadline." Id. at 3 (citing Giraldi v. Mann, No. 93-CV-693, 1995 WL 574451 9N.D.N.Y. Sept. 22, 1995); Siao-Pao v. George, No. 90 Civ, 5376, 1992 WL 236184 (S.D.N.Y. Spt. 10, 1992)). See also Jarvis v. Wal-Mart Stores, Inc., 161 F.R.D. 337, 339 (N.D. Miss. 1995); Bieganek v. Wilson, 110 F.R.D. 77, 78 (N.D.Ill. 1986) (Requests for admissions treated as discovery devices for scheduling purposes).

In its reply brief to the Motion to Deem Facts Admitted Fargo Assembly asserts that the Request for Admissions was necessitated, in part, by the EEOC's failure to comply with certain discovery requests previously served. The court has ordered that EEOC produce the requested documents, to the extent that it is able. Although this court recognizes that a Request for Admissions can be used either as a discovery device or a means to narrow the issues at trial, by their nature the Request for Admissions at issue are more akin to Interrogatories than Requests for Admission, particularly in the light of the attached interrogatory, such that they are clearly being utilized by Fargo Assembly as a discovery device. Therefore, the EEOC's objection to the Request for Admissions as untimely is sustained. Fargo Assembly's Amended Motion to Deem Facts Admitted (doc #37) is DENIED.

Pursuant to Local Rule 72.1 (E)(3) any party may appeal from this order within ten (10) days after being served with a copy.

Dated this ____ day of June, 2000.


Karen K. Klein
United States Magistrate Judge

1. The Request for Admissions was served April 13, 2000. The scheduling order provides that discovery must be completed on or before April 30, 2000. Given the late service of the Request for Admissions EEOC's responses were not due until after the close of discovery. Hence, the objection. Fargo Assembly does not argue that the Request for Admissions were timely served if it is to be considered discovery.