Slip Op. 09‐12
UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
:
Kahrs International, Inc., :
:
Plaintiff, :
: Court No. 07‐00343
v. :
: Before:
United States, : Gregory W. Carman, Judge
:
Defendant :
__________________________________________:
[Held: Defendant’s motion for withdrawal of deemed admissions pursuant to USCIT R. 36 is
GRANTED.]
Law Offices of George R. Tuttle, A.P.C. (Carl D. Cammarata, George R. Tuttle, and
Stephen P. Spraitzar) for Plaintiff.
Gregory G. Katsas, Assistant Attorney General; Jeanne E. Davidson, Director, Commercial
Litigation Branch, Civil Division, United States Department of Justice (Mikki Cottet) for
Defendant.
February 19, 2009
OPINION & ORDER
CARMAN, JUDGE: Before the Court is Defendant United States’ motion to withdraw its
“deemed admissions” pursuant to Rule 36(b) of the Rules of the U.S. Court of
International Trade. Plaintiff Kahrs International, Inc. (“Kahrs”) opposes this motion.
PROCEDURE & BACKGROUND
Case No. 07‐00343 Page 2
Kahrs filed its law suit against the United States Customs and Border Protection
(“CBP” or the “Government”) on September 12, 2007 alleging seven causes of action
concerning the denial of its protest over the “liquidation, classification, duties, and fees
assessed on the pre‐finished, veneered, hardwood, flooring strips,” which were
imported by Kahrs. (Complaint (“Compl.”) 1.) The Government filed its Answer to the
Complaint on February 14, 2008 denying, inter alia, many of the allegations contained in
the first two causes of action.
Shortly thereafter,1 Plaintiff filed its First Motion For Summary Judgment On The
First Cause of Action on March 10, 2008. Included with its submission, Plaintiff
annexed a USCIT R. 56(h) statement attesting that there are no genuine issues of
material fact in dispute concerning Plaintiff’s first cause of action. However, many of
the allegations alleged in Plaintiff’s R.56(h) statement were the same as, or similar to,
Plaintiff’s Complaint, which were denied, in whole or in part, in the Government’s
Answer on the grounds of lack of information or knowledge sufficient to form a belief
1
The Parties consented to a scheduling order enlarging the time for Defendant’s
response to the Complaint to February 14, 2008, which this Court granted on January
11, 2008. (Docket No. 11.) Curiously, on January 24, 2008, Plaintiff proceeded to file its
First Motion For Summary Judgment On The First Cause of Action, notwithstanding
having consented to enlarging Defendant’s time to file an Answer. (Docket No. 12.) On
January 29, 2008, the Clerk of the United States Court of International Trade issued a
Notice of Rejection of Plaintiff’s motion as premature and in excess of the Court’s page
limitations. (Docket No. 13.) Following the filing of Defendant’s Answer (Docket No.
14), Plaintiff re‐filed its First Motion For Summary Judgment On The First Cause of
Action. (Docket No. 15.)
Case No. 07‐00343 Page 3
as to the allegations’ truthfulness. Compare Compl. & Def.’s Answer ¶¶ 2, 7, 10, 13, 16,
19, 20, 22 with Pl.’s First Request for Admission (Def.’s Motion to Withdraw at Ex. 1)
pp.7‐10, ¶1; 10‐11, ¶2; 11, ¶3, et seq.
The parties then entered into discussions regarding scheduling, which yielded no
accord. As a result, on April 14, 2008, Defendant filed a motion for a scheduling order
and an order to stay its response to Plaintiff’s Summary Judgment motion pending
limited discovery as to the first cause of action. Plaintiff opposed this motion and
separately requested that the Court order Defendant to expeditiously file a response to
its Motion for Summary Judgment. Plaintiff contended that there would be no need for
discovery because its motion on its first cause of action was dispositive of the entire
matter. After deciding that Defendant was entitled to discovery, the Court granted the
Government’s motion, ordered limited discovery, and established a scheduling order.
See Order, dated May 1, 2008 (Docket No. 18.). Ultimately, discovery was to be
completed by September 1, 2008.
On May 8, 2008, Plaintiff served upon the Government certain requests for
admission, interrogatories and requests for production of documents related to the first
cause of action (“Pl.’s First Request for Admission”), which consisted of 52 separately
numbered paragraphs. (See Def.’s Amd. Mot. To Withdraw Deemed Admissions
(“Def.’s Motion to Withdraw”) at Exhibit (“Ex.”) 1.) Subject to the rules of this court,
Case No. 07‐00343 Page 4
Defendant’s responses were due on June 13, 2008. (Id. at 4.) However, as the
Government concedes, its responses were served by mail on June 27, 2008, some two
weeks late. (Id.) Because the Government had failed to respond to Plaintiff’s requests
to admit on the first cause of action within 30 days of service, the matters therein were
deemed admitted under USCIT R. 36(a).
On May 29, 2008, Plaintiff served upon the Government certain requests for
admission, interrogatories and requests for production of documents related to the
second cause of action (“Pl.’s Second Request for Admission”), which consisted of 16
separately numbered paragraphs. (Pl.’s Resp. To Def.’s Amd. Mot. To Withdraw
Admissions (“Pl.’s Resp.”) at Ex. 1.) The Government’s responses were due on July 3,
2008, however “as a result of inadvertence,” its responses were served on July 8, 2008,
some five days late. (See Def.’s Motion to Withdraw at 5 n.4.) Because the Government
had failed to respond to Plaintiff’s requests to admit on the second cause of action
within 30 days of service, the matters therein were deemed admitted under USCIT R.
36(a).
Plaintiff then served discovery requests on the Government pertaining to causes
of action three through seven, which consisted of 113 separately numbered paragraphs.
(Id.) Responses to these request were timely served by the due date of September 2,
2008. (Id.)
Case No. 07‐00343 Page 5
On July 9, 2008, Plaintiff served a “reply” on the Government pertaining to the
Government’s responses to its discovery requests related to the first cause of action.
This document consisted of some 77 pages of material challenging each of the
Government’s responses, item by item. (See Def.’s Mot. to Withdraw at Ex. 2.)
Subsequently, on July 25, 2008, Plaintiff served the Government with its second
request for admissions pertaining to the first cause of action, revised to consist of 62
separately numbered paragraphs. (See id. at Ex. 3.) Thought the Government’s
responses to this request were due on August 29, 2008, the Government “objected to
Kahrs’ second set of discovery requests on the first cause of action and did not further
respond to it.” (Def.’s Mot. to Withdraw at 5.)
The Government now moves this Court for an order, pursuant to USCIT R. 36(b)
to permit it to withdraw the “deemed” admissions arising from Kahrs’ requests for
admissions, interrogatories, and requests for production of documents related to the
first and second causes of action. (Id. at 1.)
DISCUSSION
I. USCIT Rule 36
Rule 36(a) of the U.S. Court of International Trade provides, in relevant part, that
a matter is deemed admitted “unless, within 30 days after service of the request . . . the
party to whom the request is directed serves upon the party requesting the admission a
written answer or objection addressed to the matter, signed by the party or by the
Case No. 07‐00343 Page 6
party’s attorney.” USCIT R. 36(a). Once the assertion is admitted, the matter “is
conclusively established unless the court on motion permits withdrawal or amendment of
the admission” pursuant to Rule 36(b). USCIT R. 36(b) (emphasis added); cf. Avanti
Prod., Inc., 16 CIT 453 (1993). Notwithstanding, this 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.
USCIT R. 36(b) (emphasis added).
USCIT Rule 36(b) is a permissive rule and this Court is certainly not required to
grant the Government’s withdrawal of admissions.2 See Conlon v. United States, 474 F.3d
616, 621 (9th Cir. 2007). The Court may, exercising its discretion, grant relief from an
admission made under Rule 36(a) where (1) “the presentation of the merits of the action
will be subserved,” and (2) “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.” USCIT R. 36(b); Conlon, 474 F.3d at 621; Hadley v. United
States, 45 F.3d 1345, 1348 (9th Cir. 1995); see also 7 JAMES WM. MOORE, FED. PRAC. § 36.13
2
USCIT R. 36 is practically indistinguishable from rule 36 of the Federal Rules of
Civil Procedure. Therefore, federal cases interpreting Fed. R. Civ. P. 36 are helpful in
explicating USCIT R. 36.
Case No. 07‐00343 Page 7
(Matthew Bender 3d ed.).3 The two‐prong test of Rule 36(b) directs the Court to focus
on the effect of granting withdrawal upon the litigation and prejudice to the opposing
party, “rather than focusing on the moving party’s excuses for an erroneous
admission.” F.D.I.C. v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994).
As an important litigation tool, admissions are sought to narrow the issues
before trial by eliminating those that can be dispensed with. See Conlon, 474 F.3d at 622;
Beker Indus. Corp. v. United States, 7 CIT 361, 362 (1984). Rule 36 admissions are “not to
be used in an effort to ‘harass the other side’ or in the hope that a party’s adversary will
simply concede essential elements.” Conlon, 474 F.3d at 622 (quoting Perez v. Miami‐Dade
County, 297 F.3d 1255, 1268 (11th Cir. 2002)). Thus, the rule is meant to serve two vital
purposes in litigation: “truth‐seeking in litigation and efficiency in dispensing justice.”
Id. (citing Fed. R. Civ. P. 36(b) advisory committee note); see also In re Manley, 3 B.R. 97,
3
Plaintiff advocates a rigid application of Rule 36. However, “[t]he sanctions
expressed by Rule 36(a) are not mandatory: The Rule expressly provides that the court
may shorten or lengthen the time a party is allowed to respond.” Local Union No. 38 v.
Tripodi, 913 F. Supp. 290, 293 (S.D.N.Y. 1996) (emphasis added). Accordingly, because a
court has the power to permit a longer time period, many commentators and courts
have interpreted this to mean that a court, in exercising its discretion, may permit the
filing of an answer that would otherwise be untimely. See id. (quoting Gutting v. Falstaff
Brewing Corp., 710 F.2d 1309, 1312 (8th Cir. 1983) (citation omitted)); accord Manatt v.
Union Pacific R.R. Co., 122 F.3d 514, 517 (8th Cir. 1997); 8A C. WRIGHT, A. MILLER & R.
MARCUS, FEDERAL PRACTICE & PROCEDURE (“WRIGHT & MILLER”) § 2257 (1994).
“Therefore, the failure to respond in a timely fashion does not require the court
automatically to deem all matters admitted.” Local Union No. 38, 913 F. Supp. at 294.
Case No. 07‐00343 Page 8
98 (S.D.N.Y. 1980) (Fed. R. Civ. P. 36 discovery is not necessarily meant to obtain
information, but to narrow issues for trial and establish certain material facts as true,
thus narrowing the range of issues.).4 This Court, therefore, should bear in mind these
policy consideration as it considers the Defendant’s motion in light of the rule’s
mandatory factors.
A. Presentation of the Merits
The first prong of Rule 36(b) requires this Court to determine whether granting
Defendant’s motion for withdrawal will have subserved the presentation of the merits
of Plaintiff’s first and second causes of action. This part of the test “emphasizes the
importance of having the action resolved on the merits.” Smith v. First Nat’l Bank of
Atlanta, 837 F.2d 1575, 1577 (11th Cir. 1988). It is satisfied “when upholding the
admissions would practically eliminate any presentation of the merits of the case.”
Conlon, 474 F.3d at 622; accord Hadley, 45 F.3d at 1348.
In this case, Plaintiff’s first and second causes of action are statutory claims
4
The Court notes that a significant number the Plaintiff’s admission requests
appear to ask the Government to admit to Plaintiff’s claims (i.e., questions of law). See,
e.g., Pl.’s First Request for Admission (Def.’s Motion to Withdraw at Ex. 1) pp.7‐10, ¶1;
10‐11, ¶2; 11, ¶3, etc. It is generally inappropriate to employ requests for admission for
questions of law. Lakehead Pipe Line Co. v. Am. Home Assurance, 177 F.R.D. 454, 458 (D.
Minn. 1997). Moreover, strictly speaking, a Rule 36 request is not a discovery device.
Bouchard v. United States, 241 F.R.D. 72, 75‐76 (D. Me. 2007). Plaintiff is encouraged to
bear these rules in mind when proceeding through discovery. See also 8A WRIGHT &
MILLER §§ 2253 n.1 and 2255 n.8 (Pocket Part 2008).
Case No. 07‐00343 Page 9
alleging that CBP violated various aspects of 19 U.S.C. §§ 1625(c) and 1315(d)
respectively. (See Compl. ¶¶ 1‐29; 30‐39.) The particular admissions that the
Government seeks to withdraw “essentially admit the necessary elements of plaintiff’s
first and second causes of action, in contravention of the Government’s answer to
plaintiff’s complaint . . . .” (Def.’s Motion to Withdraw at 9; see also Def.’s Answer ¶¶ 1‐
39.) Indeed, outside of the rote operation of Rule 36, the Government has nowhere
abandoned its denial of Plaintiff’s first two counts in its complaint as recorded in its
Answer. The Court finds that the Government would not have admitted these essential
elements of Plaintiff’s first two claims but for its failure to timely respond to the
requests to admit.
Plaintiff responds that the Government is required to show “good cause for the
untimely responses” or that “the material facts asserted [in the deemed admission]. . .
are not true.” (Pl.’s Resp. at 10.) However, these points are unavailing because they are
neither required by Rule 36(b) nor the weight of the relevant case law. Cf., e.g., Mid
Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1391 (E.D. Cal. 1991) (“[T]he [Court’s]
discretion should not be exercised in terms of the defaulting party’s excuses, but in
terms of the effect upon the litigation and prejudice to the resisting party.”).
Accordingly, denying withdrawal of the Government’s deemed admissions
would eliminate the need for a presentation on the merits as to Plaintiff’s first two
Case No. 07‐00343 Page 10
causes of action. See Perez, 297 F.3d at 1266 (Permitting withdrawal where “[d]eeming
this element [of a claim] admitted took the wind out of the defendants’ sails and
effectively ended the litigation.”). Thus, the first prong of the Rule 36(b) test is met
because withdrawal of the admissions will subserve the presentation of the merits of
Plaintiff’s first and second causes of action.
The Plaintiff, however, argues that withdrawal of the admissions would result in
prejudice to the Plaintiff’s case. Therefore the Government’s motion turns on the
second prong of the Rule 36(b) test.
B. Prejudice to the Plaintiff
The second prong of Rule 36(b) requires this Court to determine that the party
who obtained the admission will suffer “prejudice . . . in maintaining the action” should
the admissions be withdrawn. USCIT R.36(b). The party relying on the deemed
admissions bares the burden of persuasion and must satisfy the court that they will
indeed suffer prejudice. Id.; Conlon, 474 F.3d at 622. The prejudice contemplated by
Rule 36(b)
“is not simply that the party who initially obtained the
admission will now have to convince the fact finder of its truth.
Rather, it relates to the difficulty a party may face in proving
its case, e.g., caused by the unavailability of key witnesses,
because of the sudden need to obtain evidence”
concerning issues previously deemed admitted. Brook Village N. Assocs. v. General Elec.
Case No. 07‐00343 Page 11
Co., 686 F.2d 66, 70 (1st Cir. 1982); accord Hadley, 45 F.3d at 1348; Conlon, 474 F.3d at 622.
In other words, there is no prejudice if granting the motion to withdraw would merely
result in the Plaintiff now having to prove its underlying case. See F.D.I.C., 18 F.3d at
640. Similarly, having to “prepar[e] a summary judgment motion in reliance upon an
erroneous admission” does not constitute prejudice. Id.; accord Raiser v. Utah County,
409 F.3d 1243, 1246 (10th Cir. 2005).5 The prejudice that is contemplated by Rule 36(b)
“relates to the difficulty a party may face in proving its case, e.g., caused by the
unavailability of key witnesses, because of the sudden need to obtain evidence with
respect to the questions previously deemed admitted.” Hadley, 45 F.3d at 1348 (internal
quotes omitted); see also Coca‐Cola Bottling Co. v. Coca‐Cola Co., 123 F.R.D. 97, 106 (D. Del.
1988) (“Generally, courts have defined the prejudice as relating to the difficulty a party
may face in proving its case because of the sudden need to obtain evidence required to
prove the matter that had been admitted.”) (internal quotes omitted).
Plaintiff contends that it would be “severely prejudiced” because its reliance on
the deemed admissions had obviated its need to seek the depositions of certain CBP
employees involved in the examinations of the entries of pre‐finished, veneered,
hardwood, flooring strips at the heart of this matter. (Pl.’s Resp. at 17‐18.) Moreover,
5
Awarding costs, however, under appropriate circumstances not present here,
might be warranted. See, e.g., Mid Valley Bank, 764 F. Supp. at 1391.
Case No. 07‐00343 Page 12
Plaintiff would be required to seek the re‐opening of discovery in order to accomplish
this feat. (Id.) Plaintiff also argues that it prepared its summary judgment papers based
upon these deemed admissions “spen[ding] considerable time and expense” in their
preparation. (Id. at 20.) Additionally, Plaintiff is alleging that it has incurred added
expenses in responding to the Government’s motion here, id., as well as will have to
incur expenses in order to submit a revised Rule 56(h) statement. (Id. at 20‐21.)
The Court finds that Plaintiff has not met its burden under Rule 36(b). First,
analyzing the amount of time that the Government was tardy in its responses to
Plaintiff’s request for admission as a predicate for Plaintiff’s supposed prejudice
amounts to a de minimus error.6 The Government responded to Pl.’s First Request for
Admission 14 days late (Def.’s Motion to Withdraw at 4) and responded to Pl.’s Second
Request for Admission five days late (Def.’s Motion to Withdraw at 5). It is well within
this Court’s discretion to excuse the Governments neglect here where no prejudice
flowed from the act of the tardy responses. See, e.g., Novopharm Ltd., v. Torpharm, Inc.,
181 F.R.D. 308, 310 (E.D.N.C. 1998) (court found no prejudice where responses were
6
Plaintiff argues that the Government’s default stemmed from its blatant failure
to comply with the court rules. (See Pl.’s Resp. at 1, 20.) The Court disagrees with
Plaintiff’s characterization. Nevertheless, counsel is reminded that “[t]hese rules
govern the procedure in the United States Court of International Trade. They should be
construed and administered to secure the just, speedy, and inexpensive determination
of every action and proceeding.” USCIT. R. 1.
Case No. 07‐00343 Page 13
served only 12 days after due date); United States v. Branella, 972 F. Supp. 294, 301 (D.
N.J. 1997) (no prejudice found where response was merely two weeks late).7 Second,
notwithstanding that the case was filed in September 2007, and notwithstanding the
abundance of motion practice, this case is still in an early stage (i.e., before trial)
whereby a court is more likely to find no prejudice from granting a motion for
withdrawal. See Hadley, 45 F.3d at 1349. See also Am. Auto. Ass’n v. AAA Legal Clinic, 930
F.2d 1117, 1120 (5th Cir. 1991); 7 MOORE’S FED. PRAC. § 36.13, at pp. 44–45 (Matthew
Bender 3d ed.) (“Courts are more likely to find prejudice from the withdrawal of an
admission when the motion for withdrawal of the admission is made in the middle of
trial.”). Finally, the cases relied upon by Plaintiff to demonstrate prejudice vis‐à‐vis the
depositions it may have to take if the admissions are withdrawn are inapposite.
Plaintiff’s attempts to recast its objection to the Government’s motion as “prejudice” in
order to merely avoid the effort of proving the merits of its case, is not the same as a
showing that it will endure significant difficulties “in proving its case, e.g.,caused by the
unavailability of key witnesses.” Brook Village N. Assocs., 686 F.2d at 70. “Cases finding
7
Additionally, this Court generally disfavors defaults against the United States
and prefers resolving disputes on the merits. See USCIT R. 55(e) (“No judgment by
default shall be entered against the United States . . . unless the claimant establishes a
claim or right to relief by evidence satisfactory to the court.”); AutoAlliance Int’l, Inc. v.
United States, 28 CIT 1856, 1858, 350 F. Supp.2d 1244, 1245‐46 (2004) (“default judgment
against the government cannot be granted based simply on the failure to file within a
prescribed deadline.”) (internal quotes and cites omitted).
Case No. 07‐00343 Page 14
prejudice to support a denial generally show a much higher level of reliance on the
admissions.” Hadley, 45 F.3d at 1349. Any inconvenience to the Plaintiff occasioned by
a petition for the reopening of discovery is minimal and is certainly not the type of
prejudice contemplated that would preclude the withdrawal of the subject deemed
admissions under USCIT R. 36(b).
In the analysis of the second prong of R.36(b), Plaintiff has not met its burden in
demonstrating prejudice to its case, and this Court finds none. Because a presentation
on the merits would be subserved and because the government would not have been
prejudiced by the withdrawal, this Court holds that the Government’s motion to
withdraw its deemed admissions is hereby GRANTED, and those admissions are
deemed withdrawn.
SO ORDERED.
/s/ Gregory W. Carman
Gregory W. Carman
Dated: February 19, 2009
New York, New York
ERRATA
Slip Op 09‐12
On Page 1: in the text listing the appearances in this matter, “Gregory G. Katsas,
Assistant Attorney General; Jeanne E. Davidson, Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice (Mikki Cottet) for
Defendant” should be deleted and replaced with “Michael F. Hertz, Deputy Assistant
Attorney General; Jeanne E. Davidson, Director; Barbara S. Williams, Attorney in Charge,
International Trade Field Office, Commercial Litigation Branch, Civil Division, United States
Department of Justice (Mikki Cottet), for Defendant.”
On Page 5, 2d ¶: in the text “Thought the Government’s responses”, “Thought” should
be replaced with “Though”.
On Page 6, 1st ¶: the citation “Avanti Prod., Inc., 16 CIT 453 (1993)”, should be deleted
and replaced with “Avanti Prods., Inc. v. United States, 16 CIT 453 (1992)”.
On Page 7‐8: the citation “In re Manley, 3 B.R. 97, 98 (S.D.N.Y. 1980)”, “(S.D.N.Y. 1980)”
should be replaced with “(Bankr. S.D.N.Y. 1980)”.
On Page 14, 2d ¶: the text “because the government would not have been prejudiced”,
should be deleted and replaced with “because the Plaintiff would not be prejudiced”.
Dated: February 20, 2009