United States District Court, D. Maryland
R. ALEXANDER ACOSTA, Secretary of Labor, U.S. Department of Labor Plaintiff,
MEZCAL, INC. d/b/a MEZCAL MEXICAN RESTAURANT & BAR, et al. Defendants.
K. Bredar, Chief Judge.
R. Alexander Acosta, Secretary of Labor, United States
Department of Labor ("Plaintiff'), filed suit to
enjoin Mezcal, Inc., a corporation, d/b/a Mezcal Mexican
Restaurant & Bar, and Carlos Ulloa, individually, and in
his capacity as manager, owner, and corporate officer of the
corporation, from allegedly violating various provisions of
the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
§ 201, et seq. ("the Act"). Plaintiff
also seeks back wage compensation and liquidated damages. Now
pending before the Court is Defendants' Motion to
Withdraw or Amend Deemed Admissions. (ECF No. 39.) Also
pending before the Court is Plaintiffs Motion for Summary
Judgment, which relies in part on the admissions Defendant
seeks to withdraw. (ECF No. 43.) No. hearing is required.
See Local Rule 105.6 (D. Md. 2016).
reasons set forth below, Defendants' Motion will be
granted in part and denied in part. In light of that ruling,
Plaintiffs Motion for Summary Judgment will be denied without
prejudice in order to allow time for Plaintiff to supplement
served a first set of requests for production,
interrogatories, and admissions on Defendants on August 28,
2017. (Mot. to Extend at ¶ 1, ECF No. 18.) After
Defendants failed to respond within the thirty-day deadline
or the ensuing two months, on December 4, 2017, the Court
ordered Defendants to respond, which they did on December 6,
2017. (Id. at ¶ 2 (referring to Order of the
Court, ECF No. 17).) Plaintiff then submitted a motion
seeking, inter alia, to confirm that the request for
admissions would be deemed admitted under Federal Rule of
Civil Procedure 36(a)(3), notwithstanding Defendants'
late response. (Id. at 3.) Defendants did not file
any papers in opposition, and the motion was granted on
January 3, 2018. (ECF No. 20.)
months later, at the close of discovery, and with Defendants
represented by new counsel, the parties filed a joint status
report, in which Plaintiff requested additional clarification
that the January 3rd order had in fact confirmed that the
Requests for Admission were deemed admitted. (Am. Joint
Status Rep. at 3, ECF No. 28.) Once again, and now with the
benefit of new counsel, Defendants raised no objection and
made no motion to withdraw or amend the deemed admissions.
The Court confirmed by paperless order on March 6, 2018, that
Plaintiffs December motion had been granted. (ECF No. 32.)
months after that, on the last day before the deadline for
dispositive motions, Defendants filed the present motion
seeking for the first time to withdraw or amend the
admissions. (Mot. to Withdraw or Amend Admissions, ECF No. 39
["Mot. Withdraw"].) Plaintiff subsequently filed a
motion for summary judgment, relying in part on the
challenged admissions. (Mem. Supp. Mot. Summ. J. at 5-6, ECF
No. 43-1.) Deadlines to complete briefing on the summary
judgment motion have been postponed, pending resolution of
Defendants' motion. (ECF No. 50.)
Legal Standard for Withdrawal or Amendment of Admissions
under Rule 36(b)
Rule 36, failure to respond to a request for admissions
within 30 days of being served results in the matter being
automatically deemed admitted. Fed.R.Civ.P. 36(a)(3). Once
admitted, a matter is "conclusively established"
unless and until the Court permits withdrawal or amendment.
Fed.R.Civ.P. 36(b). Withdrawal or amendment of admissions is
subject to the court's discretion, if such alteration
"would promote the presentation of the merits of the
action and if the court is not persuaded that it would
prejudice the requesting party in maintaining ... the action
on the merits." Id. District courts have
"considerable discretion over withdrawal of admissions
once they have been made." Kress v. Food Emp'rs
Labor Relations Ass'n, 285 F.Supp.2d 678, 681 (D.
Md. 2003) (quoting U.S. v. Turk, .139 F.R.D. 615,
618 (D. Md. 1991)), aff'd 391 F.3d 563 (4th Cir.
2004). However, both factors-impact on the merits and
prejudice-must be considered in exercising that discretion.
Bailey v. Christian Broadcasting Network, 483
Fed.Appx. 808, 810 (4th Cir. 2012) ("[F]ailure to
consider the Rule 36(b) factors in ruling on a motion
[functionally equivalent to a motion to withdraw admissions]
constitutes an abuse of discretion."). The party
opposing withdrawal or amendment bears the burden of
demonstrating prejudice. Sonoda v. Cabrera, 255 F.3d
1035, 1039 (9th Cir. 2001); Pulse Med. Instruments, Inc.
v. Drug Impairment Detection Servs., Inc., Civ. No.
DKC-07-1388, 2009 WL 6898404, at *16 (D. Md. Mar. 20, 2009).
motion focuses on four of the fifteen requests for admissions
that were previously deemed admitted. (Defs. Reply in Supp.
of Mot. Withdraw at 8, n.l, ECF No. 47 ["Def.
Reply"] (confirming that only four admissions are at
issue).) The admissions in question are:
• (No. 10) "Admit that during the relevant time
period, Defendant Carlos Ulloa made decisions relating to
Mezcal's policy regarding recordkeeping of hours by the
employees listed in Schedule A."
• (No. 13) "Admit that during the relevant time
period, Mezcal did not maintain records of the hours worked
by the individuals listed in Schedule A."
• (No. 14) "Admit that you told Wage and Hour you
used tip pool money for business expenses."
• (No. 15) "Admit that during the relevant time
period, you never distributed tip pool money to any of the
employees listed on Schedule A."
First Request for Admissions at 2-3, Opp'n to Mot.
Withdraw Ex. C, ECF No. 46-4 ["PL RFA"].) The Court
must consider whether the withdrawal and amendment of each of
the above admissions will promote the presentation of the
merits of this case and, if so, whether prejudice suffered by