Requests for admission

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 255-276

10-251

ProPounD requests for aDmission task 52

TASK 52

Propound Requests for Admission

I. WHAT AND WHY

A. A request for admission under FRCP 36(a)(1) is a

statement in the form, “Admit that...,” which any

party can use to ask any other party to admit the

truth of any:

1. Fact: “Admit that you owned the automobile

on the day of the accident.”

2. Opinion: “Admit that you believed defendant

owned the automobile in question.”

3. Application of law to fact: “Admit that

California law required you to stop before mak-

ing your right turn.” In re Rail Freight Fuel

Surcharge Antitrust Litigation, 81 Fed. Rules

Serv. 3d 105 (D.D.C. 2011) (requests asking

party t o admit that if a certain fact or factual

situation did or did not exist, a certain outcome

or legal conclusion would follow, are proper).

4. Genuineness of documents: “Admit that the

document attached as Exhibit A is a true and

correct copy of your 1995 financial statement.”

5. Admissibility of documents: “Admit that the

document attached as Exhibit A was prepared

by defendant corporation in the ordinary

course of its business.”

B. Requests for admission are powerful discovery

tools. Use them to:

1. Narrow the focus of your case. ARP v.

Amezaga (In re Amezaga), 195 B.R. 221, 229

(Bankr. D.P.R. 1996).

2. Eliminate issues from trial. See Chicago Dist.

Council of Carpenters Pension Fund v. P.M.Q.T.,

Inc., 169 F.R.D. 336, 341 (N.D. Ill. 1996); Howell

v. Maytag, 168 F.R.D. 502, 504 (M.D. Pa. 1996);

ARP v. Amezaga (In re Amezaga), 195 B.R. 221,

229 (Bankr. D.P.R. 1996).

3. Form the basis for a motion for summary judg-

ment or summary adjudication. See Huon Le

v. Krepps, 476 Bankr. 646 (S.D. Ga. 2012)

(debtor admitted that he acted with intent to

hinder, delay, or defraud his creditors in quit-

claiming property; summary judgment avoid-

ing fraudulent transfer granted ); Bronson v.

Adams, 59 Fed Rules Serv. 3d 196 (Bankr.

N.D. Iowa 2004) (summary judgment granted

where bankruptcy trustee’s admission resolved

case’s only factual issue).

4. Set up possible sanctions for false denials. See

Section I.F. below.

5. Authenticate evidence and establish its

admissibility.

C. Admissions a party gives to requests for admis-

sion conclusively establish those matters for trial.

FRCP 36(b); Banos v. City of Chicago, 398 F.3d

889 (7th Cir. 2005) (admissions are treated like

sworn testimony and once made, should not be

revisited).

D. An admission is allowed for the pending action

only. See FRCP 36(b). Requests for admission

may relate to any matter that is relevant to the

action’s subject matter and is not privileged. See

FRCP 26(b)(1), 36(a)(1). Requests for admission

may relate to claims or defenses of the requesting

party or of any other party, such as the:

1. Existence, description, nature, custody, condi-

tion, location or admissibility of documents or

other tangible things. FRCP 26(b)(1).

CHAPTER 10: REQUESTS FOR ADMISSION

TASKS

Task 52 Propound Requests for Admission

Task 53 Respond to Requests for Admission

Task 54 Determine Whether Responses Are Sufficient

Task 55 Withdraw or Amend Admissions

Task 56 Cure Deemed Admissions After Default

FORMS

Form 18 Requests for Admission

Form 19 Responses to Requests for Admission

Form 20 Memorandum in Support of Motion

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task 52 requests for aDmission

2. Identity and location of persons with knowl-

edge of any discoverable matter. FRCP 26(b)(1).

E. A request for admission may not ask a party to

admit to interpretations or summaries of docu-

ments. See Bausch & Lomb, Inc. v. Alcon Lab.,

Inc., 173 F.R.D. 367, 377 (W.D.N.Y. 1995).

Similarly, a request for admission may not ask a

party to admit the accuracy of quoted text from a

particular document. Henry v. Champlain Enters.,

212 F.R.D. 73 (N.D.N.Y. 2003).

F. Requests are deemed admitted if the responding

party does not answer on time. See FRCP 36(a)

(3); Carney v. Internal Revenue Service, 258 F.3d

415 (5th Cir. 2001) (summary judgment based on

deemed admissions was properly granted when

party failed to respond timely to requests, failed to

support claim that parties had stipulated to extend

time to respond, and failed to move to withdraw

or amend admissions); Woodrome v. Scott, 69

Bankr 540 (E.D. Tex. 2013) (summary judg-

ment granted based on deemed admissions after

failure to respond timely to requests); Huon Le v.

Krepps, 476 Bankr. 646 (S.D. Ga. 2012) (answers

to interrogatories did not relieve party of duty to

answer requests for admissions, facts conclusively

established). However, the admissions are bind-

ing only on the party who fails to timely respond,

not on coparties. See Becerra v. Asher, 105 F.3d

1042, 1048 (5th Cir.), reh’g en banc denied, 111

F.3d 894 (5th Cir. 1997); National Independent

Truckers Ins. Co. v. Gadway, 860 F. Supp.2d 946

(D. Neb. 2012) (deemed factual admissions by

insurer’s employee could not be dispositive of

insurer’s claim for rescission of policy). Moreover,

the admissions are still subject to admissibility

objections at trial. See Palmetto State Medical Ctr.

v. Operation Lifeline, 117 F.3d 142, 146 (4th Cir.

1997) (district court erred in allowing admissions

into evidence when not probative of claim); Walsh v.

McCain Foods, 81 F.3d 722, 726-27 (7th Cir. 1996)

(affirming exclusion of admissions as hearsay).

G. If a responding party denies a request to admit and

the requesting party establishes that fact at trial,

the responding party may have to pay the costs

and attorney’s fees the requesting party incurred

to prove that fact. FRCP 37(c)(2); Marchand

v. Mercy Medical Ctr., 22 F.3d 933, 937 (9th

Cir. 1994); Securities & Exchange Commission

v. Happ, 295 F. Supp. 2d 189 (D. Mass. 2003)

(monetary sanctions imposed for plaintiff’s unwar-

ranted refusal to stipulate to authenticity of tele-

phone billing records and refusal to admit that no

call was made at time in question). However, an

adverse verdict does not automatically justify an

award of fees if the party’s denial of a request has

reasonable grounds. See U.S. v. Pecore, 664 F.3d

1125 (7th Cir. 2011) (expense award denied where

there was reasonable confusion surrounding fac-

tual matters underlying requests such that party’s

position on requests was reasonably justified);

McMahan v. Adept Process Services, Inc., 81

Fed. Rules Serv. 3d 184 (E.D. Va. 2011) (expense

award denied where party’s denial of requests

either arose from its theory of case or related to

matters of no substantial importance to issues

adjudicated).

H. The FRCP does not limit the number of requests

for admission you may serve. See Kershner v.

Beloit Corp., 106 F.R.D. 498 (D. Me. 1985).

However, local rules, standing orders or pretrial

orders may limit them. See Misco, Inc. v. United

States Steel Corp., 784 F.2d 198 (6th Cir. 1986).

Also keep in mind the restrictions of FRCP 26(c)

(1) which may limit requests to protect against

annoyance, oppression and undue burden or

expense. See Estate of Manship v. United States,

232 F.R.D. 552 (M.D. La. 2005) (substantial num-

ber of requests permitted in large, complex tax

case where admissions would authenticate docu-

ments, resolve or narrow issues, and would not be

unduly burdensome to answer).

I. A request for admissions may not seek answers to

pure questions of law. See National Independent

Truckers Ins. Co. v. Gadway, 860 F. Supp.2d

946 (D. Neb. 2012) (party who failed to answer

requests could not be deemed to have admitted

legal conclusions); Disability Rights Council of

Greater Washington v. Washington Metropolitan

Area Transit Authority, 234 F.R.D. 1 (D.D.C.

2006) (admissions asking plaintiff to state under-

standing of federal statutes and regulations inap-

propriate); United States v. Estate of Dickerson,

189 F. Supp. 2d 622 (W.D. Tex. 2001) (admis-

sion by executor of taxpayer’s estate that he was

personally liable for value of property distributed

from estate was purely legal matter, and thus not

conclusive evidence on issue of executor’s per-

sonal liability for decedent’s unpaid taxes); com-

pare Huon Le v. Krepps, 476 Bankr. 646 (S.D. Ga.

2012) (whether debtor acted with intent to hinder,

delay, or defraud his creditors in quitclaiming

property was question of fact); In re Rail Freight

Fuel Surcharge Antitrust Litigation, 81 Fed. Rules

Serv. 3d 105 (D.D.C. 2011) (requests asking party