United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge
March 2, 2016, Plaintiff Kristofer Prusin filed a complaint
against Defendants Canton's Pearls, LLC's (d/b/a
“Canton Dockside”) and its owner, Eric K.
Hamilton, alleging violations of the Fair Labor Standards Act
(“FLSA”) and Maryland State law. [ECF No. 1].
Presently pending is Plaintiff's Motion to Deem Admitted
Unanswered Second Set of Requests for Admission. [ECF No.
22]. I have also reviewed Defendants' opposition, [ECF
No. 26], and Plaintiff's reply thereto, [ECF No. 30]. No
hearing is necessary. See Local Rule 105.6 (D. Md.
2016). For the reasons set forth herein, Plaintiff's
Motion will be DENIED.
17, 2016, the Court entered a scheduling order providing a
discovery deadline of October 17, 2016. [ECF No. 7]. On July
28, 2016, Judge Bredar held a telephone conference and
extended the discovery deadline to November 17, 2016. [ECF
No. 12]. On October 12, 2016, Plaintiff served Defendants
with a second set of requests for admission due November 11,
2016. [ECF No. 22]. On November 7, 2016, the parties
submitted a joint status report informing the Court that they
would be unable to complete discovery by November 17, 2016.
[ECF No. 19]. On November 9, 2016, the Court approved the
parties' joint status report and ordered that dispositive
motions were to be due 30 days after the new discovery
deadline, which has yet to be determined. [ECF No. 20].
Defendants subsequently failed to respond to Plaintiff's
second set of requests for admission by the November 11, 2016
Second Set of Requests for Admission asked Defendants to
admit eleven items, many of which pertained to the issue of
Defendants' treatment of mandatory service charges.
Plaintiff now moves the Court to deem all eleven statements
admitted, because Defendants failed to timely respond. [ECF
No. 22]. In opposition, Defendants contend that admission is
unwarranted. [ECF No. 26]. Additionally, Defendants submitted
substantive responses to Plaintiff's Second Set of
Requests for Admission as an attachment to their opposition.
Rule of Civil Procedure 36 governs requests for admission.
Under that rule, a party “may serve on any other party
a written request to admit, for purposes of the pending
action only, the truth of any matters within the scope of
Rule 26(b)(1)” that relate to “facts, the
application of law to fact, or opinions about either”
and “the genuineness of any described documents.”
Fed.R.Civ.P. 36(a)(1). In response to a request for an
admission, the answering party must either admit the matter
requested or, “[i]f a matter is not
admitted…specifically deny it or state in detail why
the answering party cannot truthfully admit or deny
it.” Fed.R.Civ.P. 36(a)(4). “[A] party's
failure to respond to a request for admission within 30 days
of service will result in admission by default.”
Union Pac. R. Co. v. Baltimore & Annapolis R.
Co., No. CIV. SKG-08-2685, 2009 WL 3633349, at *2 (D.
Md. Oct. 27, 2009); see Fed. R. Civ. P. 36(a)(3);
see also Fed. R. Civ. P. 36(b) (“A matter
admitted under this rule is conclusively established unless
the court, on motion, permits the admission to be withdrawn
Fed.R.Civ.P. 36 does not require the Court to treat all facts
as admitted when a party fails to timely respond to requests
for admission. See Uribe v. Aaron's,
Inc., No. GJH-14-0022, 2014 WL 4851508, at *3 (D. Md.
Sept. 26, 2014); see also United States v. Turk, 139
F.R.D. 615, 617-18 (D. Md.1991) (recognizing that “the
sanctions expressed by Federal Rule of Civil Procedure 36(a)
are not mandatory” for the court). Specifically,
Fed.R.Civ.P. 36 provides that this Court may shorten or
lengthen the time a party is allowed to respond to requests
for admission. See Fed. R. Civ. P. 36(a)(3);
Uribe, 2014 WL 4851508, at *3. “As such, the
Court may, in its discretion, allow a party more time to file
a response to requests for admission even though that
response might otherwise be untimely.” Uribe,
2014 WL 4851508, at *3; see, e.g.,
Nguyen v. CNA Corp., 44 F.3d 234 (4th Cir. 1995)
(noting that it is within the district court's discretion
whether to deem requests as admitted or whether to allow an
extension of time to respond); Donovan v. Porter,
584 F.Supp. 202, 208 (D. Md. 1984) (same); Turk, 139
F.R.D. at 618 (same).
arguments in response to Plaintiff's motion are largely
unpersuasive. Defendants first claim that admission by
default would be improper because Defendants responded to
Plaintiff's requests in discovery. Specifically,
Defendants claim that “[a]t the time Plaintiff served
his Second Set of Requests for Admission, Plaintiff had
already reviewed Defendants' Expert Witness Report which
specifically asserts that the mandatory service charges
imposed by Canton Dockside are given back to tipped
employees[.]” [ECF No. 26]. That argument is
unavailing, because “[f]ailure to respond to requests
for admission cannot be excused with the simple response that
[Plaintiff] possessed the relevant documents.”
Grabey v. Ford Motor Co., 89 F.R.D. 575, 576 (E.D.
Pa. 1981). Accordingly, the fact that Defendants allegedly
answered Plaintiff's requests in their expert witness
report does nothing to vitiate their obligation to respond
directly to Plaintiff's requests for admission. Next,
Defendants claim that admission would be improper because
Defendants' obligation to respond to Plaintiff's
requests was stayed. [ECF No. 26]. Although the Court
approved the parties' joint status report, which
acknowledged the parties' inability to complete discovery
by the November 17, 2016 deadline, the Court did not stay
Defendants' discovery obligations. See [ECF Nos.
19, 20]. Indeed, Defendants' argument is belied by their
contemporaneous claim that they have continued to produce
discovery. See, e.g., [ECF No. 25].
Finally, Defendants argue that admission would be improper
because Plaintiff's requests seek legal conclusions. [ECF
No. 26]. Contrary to Defendants' assertion,
Plaintiff's requests are proper. Specifically,
Plaintiff's requests regarding Defendants' mandatory
service charges are “questions of fact” permitted
under Fed.R.Civ.P. 36. See Fed. R. Civ. P.
36(a)(1)(A) (“A party may serve on any other party a
written request to admit, for purposes of the pending action
only, the truth of any matters within the scope of Rule
26(b)(1) relating to facts, the application of law to fact,
or opinions about either.”). Plaintiff's requests
do not seek legal conclusions, and therefore are not
objectionable, merely because Defendants' answers may
have legal consequence. See [ECF No. 30].
those unsuccessful arguments, it would not further the
interests of justice to admit Plaintiff's requests for
admission by default. Notably, Plaintiff seeks the admission
of central facts in dispute between the parties. See
Uribe v. Aaron's, Inc., No. GJH-14-0022,
2014 WL 4851508, at *3 (D. Md. Sept. 26, 2014) (citing
Pickens v. Equitable Life Assur. Soc. of U.S., 413
F.2d 1390, 1393 (5th Cir.1969) (holding that requests for
admission regarding central facts in dispute are beyond the
proper scope of the rule that requests not specifically
denied or objected to in writing shall be deemed admitted)).
Indeed, Plaintiff's requests go to the heart of his case
against Defendants; namely, whether Canton Dockside's
service charge payments may be counted towards
Defendants' wage obligations under the FLSA. See
[ECF No. 21]. An admission that Canton Dockside did not
include mandatory service charges in its gross receipts would
vitiate Defendants' argument that it met its FLSA
obligations through the tip credit provision. Thus, “to
conclusively find the facts central to this litigation
against [Defendants'] without giving [them] an
opportunity to be heard would not further the interests of
justice.” Turk, 139 F.R.D. at 618. Moreover,
“Defendants did file responses to [Plaintiff's]
requests for admission, albeit in an untimely fashion.”
Donovan v. Porter, 584 F.Supp. 202, 208 (D. Md.
1984); see [ECF No. 26, Ex. 3]. To deem
Plaintiff's requests admitted despite Defendants'
untimely answers would be inconsistent “with the
purpose of Rule 36(b) which ‘emphasizes the importance
of having the action resolved on the merits, while at the
same time assuring each party that justified reliance on an
admission in preparation for trial will not operate to his
prejudice.'” Uribe, 2014 WL 4851508, at *3
(quoting Fed.R.Civ.P. 36 Advisory Committee's Note on
Rules-1970 Amendment). Moreover, Defendants are entitled to
dispute Plaintiff's argument regarding their mandatory
service charges, and Plaintiff will suffer no prejudice if
Defendants' late answers are allowed. Therefore, the
Court will not admit Plaintiff's requests for admission.
Rather, the Court will accept Defendants' belated answers
as attached to their opposition, and Plaintiff's Motion
[ECF No. 22] is DENIED.
the informal nature of this letter, it will be flagged as an
Opinion and docketed as an Order.