Slip Op. 14-152
UNITED STATES COURT OF INTERNATIONAL TRADE
SIGMA-TAU HEALTHSCIENCE, INC.
A.K.A. SIGMA-TAU HEALTHSCIENCE,
LLC,
Plaintiff, Before: Gregory W. Carman, Senior Judge
v. Court No. 11-00093
UNITED STATES,
Defendant.
MEMORANDUM AND ORDER
Upon consideration of Plaintiff Sigma-Tau HealthScience, Inc., a.k.a. Sigma-Tau
HealthScience, LLC’s Motion to Deem Admitted Certain Requests for Admission (“Pl.’s Mot.”)
(ECF No. 50), Defendant’s Response to Plaintiff’s Motion for an Order to Deem Admitted
Certain Requests for Admission and for Costs (“Def.’s Opp’n”) (ECF No. 55), and upon
consideration of all other papers and proceedings had herein, and upon due deliberation,
Plaintiff’s motion will be held in abeyance until January 28, 2015.
Plaintiff moves under USCIT Rule 36(a)(6), 1 challenging the sufficiency of Defendant’s
objections and requesting that the Court deem “admitted in full without objection” its requests
1
USCIT Rule 36(a)(6) provides:
(6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting
party may move to determine the sufficiency of an answer or objections. Unless
the court finds an objection justified, it must order that an answer be served.
On finding that an answer does not comply with this rule, the court may order
either that the matter is admitted or that an amended answer be served. The
court may defer its final decision until a pretrial conference or a specified time
before trial. Rule 37(a)(4) applies to an award of expenses.
Court No. 11-00093 Page 2
for admission 44 through 47. Pl.’s Mot. at 14. Plaintiff also requests an award of expenses
under USCIT Rule 37(a)(4), 2 which is cross-referenced in USCIT Rule 36(a)(6). Plaintiff
quoted another provision, USCIT Rule 37(c)(2), 3 to support its argument that the Court should
deem admitted its requests but this provision is a cost provision for failure to admit, which is
inapplicable at this juncture. See Pl.’s Mot. at 11. USCIT Rule 36(a)(6) is the basis for
Plaintiff’s motion. The purpose of “Rule 36 is to expedite trial by eliminating the necessity of
2
USCIT Rule 37(a)(4) provides:
(4) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After
Filing). If the motion is granted—or if the disclosure or requested discovery
is provided after the motion was filed—the court must, after giving an
opportunity to be heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that conduct, or both
to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
3
USCIT Rule 37(c)(2) provides:
(2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and
if the requesting party later proves a document to be genuine or the matter true,
the requesting party may move that the party who failed to admit pay the
reasonable expenses, including attorney’s fees, incurred in making that proof.
The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it might
prevail on the matter; or
(D) there was other good reason for the failure to admit.
Court No. 11-00093 Page 3
proving essentially undisputed and peripheral issues.” Beker Indus. Corp. v. United States, 7
CIT 361, 361 (1984). This motion to deem admitted certain requests for admission is premature
since the parties have not made a substantive good faith effort to resolve this dispute, which is a
requirement for an award of expenses pursuant to USCIT Rule 37(a)(4)(i). Thus, expenses will
not be awarded. During this period of abeyance, the Court provides the parties an opportunity to
make a substantive good faith effort to resolve this dispute.
The Court acknowledges that the parties’ correspondence appears to be an initial attempt
to resolve this dispute. See, e.g., Pl.’s Cert. of Good-Faith Efforts to Resolve Disc. Disputes
(ECF No. 50-2), Pl.’s Mot. Exs. F, G (ECF Nos. 50-6, 50-7), Def.’s Opp’n Ex. 1 (ECF No. 55-
1). However, the Court requests that the parties ramp up their efforts to a substantive level.
Substantive good faith efforts to resolve these disputes mean that Plaintiff must address
Defendant’s objections. 4 For example, if a request for admission deals with a document entirely
in a foreign language, then it is reasonable for the opposing party to request a certified
translation.
Substantive good faith efforts also mean that parties will not quibble over terminology
such as “reliable authority” versus “authoritative source” in requests for admission; the plain
meaning of both terms are synonymous and unambiguous. It should be noted that an academic
journal article is generally considered both a reliable authority and an authoritative source. It
4
Plaintiff’s Exhibit G, dated September 18, 2014, expresses its “concerns with the inadequacy of
[Defendant’s] original responses” to “Admissions Numbers 30 and 44-47” but then spends the
bulk of the letter discussing the U.S. Pharmacopeia, which is not at issue in this case, as an
authoritative source. A passing reference to admission requests without any substantive
discussion or explanation does not constitute a good faith attempt. Each disputed admission
request should be addressed with particularity.
Court No. 11-00093 Page 4
should also be noted that admission of authoritative sources does not require that a proposition
for which it supports be offered at this stage of litigation. Parties should make meaningful
efforts to address each other’s concerns and provide definitive, clear answers to disputed issues.
The Court will hold the motion in abeyance until January 28, 2015, because a review of
the briefs and exhibits shows that parties have not yet made a substantive good faith effort to
resolve admission requests 44 through 47 prior to seeking court action. By January 28, 2015
parties shall submit a joint status report indicating whether Plaintiff still seeks the relief set out in
its motion, whether Plaintiff intends to withdraw the motion, and whether either party wishes for
an opportunity for further briefing or whether the motion should be considered briefed as is.
Subsequent to this motion, Plaintiff filed two contested motions which the Court has
considered in conjunction with this motion—Plaintiff’s Motion for Oral Argument on Its Motion
to Deem Admitted Certain Requests for Admission (ECF No. 56) and Plaintiff’s Motion for
Leave to File Reply Memorandum in Support of Motion to Deem Admitted Certain Requests for
Admission (ECF No. 57).
For the foregoing reasons, it is hereby
ORDERED that Plaintiff’s Motion to Deem Admitted Certain Requests for Admission is
held in abeyance until January 28, 2015; and it is further
ORDERED that parties file a joint status report by January 21, 2015; and it is further
ORDERED that Plaintiff’s Motion for Oral Argument on Its Motion to Deem Admitted
Certain Requests for Admission is denied; and it is further
Court No. 11-00093 Page 5
ORDERED that Plaintiff’s Motion for Leave to File Reply Memorandum in Support of
Motion to Deem Admitted Certain Requests for Admission is denied. If necessary, parties will
have the opportunity to request further briefing in their joint status report.
It is so ORDERED.
/s/ Gregory W. Carman
Gregory W. Carman. Senior Judge
Dated: December 22, 2014
New York, New York