United States District Court, D. Maryland
CX Reinsurance Company Limited, f/k/a CNA Reinsurance Company Limited
Devon S. Johnson
LETTER TO COUNSEL
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE
to Judge Titus's January 19, 2017 Order, this matter has
been referred to me for discovery disputes and related
scheduling matters. [ECF No. 40]. Presently pending is CX
Reinsurance Company Limited's (“CX Re”)
Motion to Deem Facts Admitted by Intervenor-Defendant Devon
Johnson [ECF No. 98], Intervenor-Defendant Devon S.
Johnson's (“Johnson”) Opposition [ECF No.
100], and CX Re's Reply [ECF No. 102]. I find that no
hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). For the following reasons, CX Re's Motion to Deem
Facts Admitted is denied, although Johnson is ordered to
amend certain responses in accordance with this letter
action, CX Re seeks to rescind commercial general liability
insurance policies (“Policies”) issued to
Benjamin L. Kirson (“Kirson”), and other named
insureds in 1997, 1998, and 1999. Pl.'s First Am. Compl.,
[ECF No. 17 ¶¶ 1, 7, 8]. The Policies provide
insurance coverage for certain risks, including lead
exposure, relating to specified residential rental properties
in Baltimore, Maryland (“Properties”).
See Policies, [ECF Nos. 1-2, 1-3].
particular, CX Re alleges that Kirson made a
misrepresentation of material fact by falsely answering
“No” to Question 16 of the Application upon which
the Policies were issued, which asks whether “the
[i]nsured ever had any lead paint violations in the
buildings.” [ECF No. 17 ¶¶ 1, 13, 19-24]. CX
Re argues that, if Kirson had answered this question
truthfully, CX Re would not have issued the Policies, or
would have issued the Policies subject to substantially
higher premiums or substantially different terms.
Id. ¶ 32. CX Re asserts that, “after
learning of and investigating Kirson's misrepresentation
. . ., [it] filed this rescission action.” Id.
August 8, 2016, Johnson won a $1, 628, 000.00 judgment
against Kirson in State court, representing damages for
injuries sustained from lead paint exposure at a property
covered by CX Re's policy (741 East 36th Street,
Baltimore, Maryland). Devon Johnson, A Minor By His Next
Friend v. Benjamin L. Kirson, 24-C-14005926; [ECF No. 19
¶ 2]. Thus, to protect his interests, demonstrate that
CX Re's policy remains in effect, and ensure that
“rescission is inoperative and invalid as to his
claims[, ]” Johnson intervened in this action on
January 18, 2017. [ECF Nos. 19 ¶ 3, 38]. Thereafter, on
November 1, 2017, CX Re served on Johnson its Requests for
Admission [“RFAs”] [ECF No. 98-3], and, on
November 8, 2017, Johnson served his responses thereto [ECF
instant discovery dispute revolves around CX Re's RFA
Nos. 1-24 and 26-29. [ECF No. 98 at 6]. These RFAs seek four
categories of admissions: (1) admissions relating to
Kirson's procurement of the Policies at issue (RFA Nos.
1-3, 14, 15); (2) admissions relating to the contents
contained within the Kirson Application (RFA Nos. 4-13, 26,
28, 29); (3) admissions relating to a lead paint violation at
721 East 23rd Street in Baltimore (RFA Nos. 16-20); and (4)
admissions relating to Johnson's tenancy at 341 East 36th
Street in Baltimore (RFA Nos. 21-24, 27). [ECF No. 98-3].
Johnson responded to the first two categories of RFAs (RFA
Nos. 1-15, 26, 28, 29), relating to the procurement of the
policies and the information contained in the Application,
stating that he had “no personal knowledge with which
to either admit or deny th[e] request, as he was not a party
to the application/contract in question. Th[e] request is
more properly directed to the former Kirson parties.”
[ECF No. 98-4 at 1-6, 12, 13-14]. Further, Johnson denied (in
his amended responses) each RFA in the third category,
relating to 721 East 23rd Street, stating that he had
“no knowledge of any contact with a property located
at” that address. [ECF No. 98-5 at 7]. Finally, Johnson
responded to the fourth category, relating to his tenancy at
741 East 36th Street, stating that “he ha[d] no
personal recollection from which to either admit or deny
th[e] request, as he was born on 4/18/97 and was age 0-3 when
he resided” there between 1997-2000. Id. CX Re
requests that this Court deem each of these RFAs admitted,
arguing that, had Johnson conducted a reasonable inquiry into
the RFAs, as required by Federal Rule of Civil Procedure 36,
Johnson would necessarily have admitted each of the facts
contained therein. [ECF No. 98 at 6].
Rule of Civil Procedure 36 provides that “[a] party may
serve on any other party a written request to admit . . .
the truth of any matters within the scope of Rule 26(b)(1)
relating to: (A) facts, the application of law to fact, or
opinions about either; and (B) the genuineness of any
described documents.” Fed.R.Civ.P. 36(a)(1). “The
purpose of Rule 36(a) is to expedite trial by establishing
certain material facts as true and thus narrowing the range
of issues for trial.” Louis v. Martinez, No.
5:08-CV-151, 2011 WL 1832808, at *3 (N.D. W.Va. May 13,
2011). In responding to a request:
[i]f a matter is not admitted, the answer must specifically
deny it or state in detail why the answering party cannot
truthfully admit or deny it. . . . The answering party may
assert lack of knowledge or information as a reason for
failing to admit or deny only if the party states that it has
made reasonable inquiry and that the information it knows or
can readily obtain is insufficient to enable it to admit or
Civ. P. 36(a)(4). As such, “a party may not refuse to
admit or deny a [RFA] based upon a lack of personal knowledge
if the information relevant to the request is reasonably
available to him.” Martinez, 2011 WL 1832808,
at *3 (citation omitted). Moreover, pursuant to the
Rule's language, “[i]f the party is asserting that
it cannot admit or deny due to lack of knowledge or
information, it must state that it has first made a
reasonable inquiry into the matter.” Ball-Rice v.
Bd. of Educ. of Prince George's Cty., No. CIV.A.
PJM-11-1398, 2013 WL 2299725, at *2 (D. Md. May 24, 2013)
(citing Fed.R.Civ.P. 36(a)(4)). “What constitutes a
‘reasonable inquiry' . . . depends upon the facts
of each case.” Bado v. Southland Indus., Inc.,
No. CV PJM-07-1081, 2008 WL 11366413, at *1 (D. Md. May 21,
2008) (citing T. Rowe Price Small-Cap Fund, Inc. v.
Oppenheimer & Co., Inc., 174 F.R.D. 38, 43 (S.D.N.Y.
1997)). “Generally, a ‘reasonable inquiry' is
limited to review and inquiry of those persons and documents
that are within the responding party's control[, ]”
and includes investigation of the party's
“officers, administrators, agents, employees, servants,
enlisted or other personnel, who conceivably, but in
realistic terms, may have information which may lead to or
furnish the necessary and appropriate response.” T.
Rowe Price, 174 F.R.D. at 43; see Dulansky v.
Iowa-Illinois Gas & Elec. Co., 92 F.Supp. 118, 123
(S.D. Iowa 1950) (holding that it would be improper to
“require a respondent to ascertain from third persons,
known to him and to the court to be hostile or interested in
the outcome of the suit, facts upon which to predicate a
sworn response[.]”); but see Uniden Am. Corp. v.
Ericsson Inc., 181 F.R.D. 302, 304 (M.D. N.C. 1998)
(hereinafter Uniden America) (holding that a
respondent “must make inquiry of a third party when
there is some identity of interest manifested, such as by
both being parties to the litigation, a present or prior
relationship of mutual concerns, or their active cooperation
in the litigation, and when there is no manifest or potential
conflict between” them).
“[o]n 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.” Fed.R.Civ.P.
36(a)(6). “Ordinarily, a district court should first
order an amended answer, and deem the matter admitted only if
a sufficient answer is not timely filed. . . .”
Louis, 2011 WL 1832808, at *2. However, “[i]t
is often appropriate to order the matter admitted where a
party responds to a Rule 36 request in bad faith or does so
evasively.” Ball-Rice, 2013 WL 2299725, at *2.
Moreover, courts have deemed RFAs admitted when a party fails
to state that it made reasonable inquiry before asserting a
lack of knowledge or information as a reason for failing to
admit or deny a request. See e.g., Louis,
2011 WL 1832808, at *3 (admitting defendants' responses
because, in failing to state that they made a reasonable
inquiry, “[a]t best, Defendants committed an oversight
and, at worst, Defendants abused the discovery process by
answering with multiple evasive and meritless
responses.”); Poole ex rel. Elliott v. Textron,
Inc., 192 F.R.D. 494, 499 (D. Md. 2000) (“Failure
to adhere to the plain language of this statute requires that
the fact in question be admitted.”) (citing Asea,
Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1245 (9th
Johnson's Failure to State that He Made a
“Reasonable Inquiry” is Harmless asto RFA Categories 1, 2, ...