United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING MOTION TO AMEND ADMISSIONS
L. LUDINGTON United States District Judge.
December 29, 2015, Plaintiff Kim Tillotson filed this suit
against Defendants The Manitowoc Company, Inc.
(“Manitowoc”), and Matrix Absence Management. ECF
No. 1. On January 6, 2016, Tillotson filed an amended
Complaint. ECF No. 4. In that amended Complaint, Tillotson
alleges that Defendants violated the Family Medical Leave
Act, 29 U.S.C. § 2601 et seq., and the Michigan
Elliot-Larsen Civil Rights Act, Mich. Comp. L. § 372201
et seq., by refusing to allow Tillotson to take
FMLA-qualifying medical leave and by engaging in age
discrimination. Id. On March 2, 2016, the parties
stipulated to the dismissal of Defendant Matrix Absence
Management. ECF No. 13.
August 19, 2016, Tillotson filed a motion for leave to amend
admissions made in response to Defendants' request for
admissions. ECF No. 20. In the motion, Tillotson explains
that two of Tillotson's counsel were working together to
prepare and review the responses prior to the deadline for
submitting them. Due to a miscommunication, each attorney
believed that the other was sending the responses to
Manitowoc. The miscommunication was not discovered until
after both attorneys had returned from vacations, at which
time the deadline to respond to the request for admissions
had passed. Tillotson now asks that the Court grant leave to
submit the responses to the request for admissions which were
prepared but not timely sent. Although approximately two
months have passed since Tillotson filed his motion,
Manitowoc has not filed a response brief. The Court will
grant the motion.
to Fed.R.Civ.P. 36, a party has 30 days to respond to a
request for admissions.
Further, A matter admitted under this rule is conclusively
established unless the court, on motion, permits the
admission to be withdrawn or amended. Subject to Rule 16(e),
the court may permit withdrawal or amendment if it 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 or defending the action on
Id. at 36(b).
request to file late answers to requests for admissions is
governed by the same test, quoted above, that governs whether
a party may withdraw or amend an admission. Herrin v.
Blackman, 89 F.R.D. 622, 623-24 (W.D. Tenn. 1981).
District courts have “considerable discretion” in
determining whether to allow withdrawal or amendment of
admissions. Am. Auto. Ass'n (Inc.) v. AAA Legal
Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1119
(5th Cir. 1991). See also Kerry Steel, Inc. v. Paragon
Indus., Inc., 106 F.3d 147, 154 (6th Cir. 1997).
“The first prong of the test articulated in Rule 36(b)
is satisfied ‘when upholding the admission would
practically eliminate any presentation on the merits of the
case.'” Riley v. Kurtz, 194 F.3d 1313 (6th
Cir. 1999) (quoting Hadley v. United States, 45 F.3d
1345, 1348 (9th Cir.1995)). The requesting party is
prejudiced under the second prong of the 36(b) test if the
party would have “‘special
difficulties'” in obtaining necessary evidence
after the admission was withdrawn or amended. Riley,
194 F.3d at 1313 (quoting Kerry, 106 F.3d at 154).
Prejudice is not established simply if the party will be
required to convince the factfinder of an additional fact.
case, both prongs are satisfied. First, the admissions
requested went to the heart of several ultimate issues in the
case, including whether Tillotson was even employed at
Manitowoc, whether Manitowoc interfered with Tillotson's
leave rights under the FMLA, and whether Manitowoc retaliated
against Tillotson for any FMLA leave requests. Requests for
Admissions at 4-8, ECF No. 20, Ex. 1. If Tillotson were not
given leave to file the admissions, there would be no genuine
issues of material fact remaining. Further, Manitowoc will
not be prejudiced. Although discovery in this case ended on
October 3, 2016, there is no indication that Manitowoc has
relied in any way on Tillotson's failure to respond to
the request for admissions. In fact, Manitowoc's decision
to not file a brief in opposition to Tillotson's motion
suggests that Manitowoc expects to have to defend this case
on its merits. Because Tillotson filed this motion well
before discovery ended, Manitowoc had significant notice that
it should conduct discovery as to the disputed issues of
fact, notwithstanding Tillotson's failure to respond to
the request for admissions. Thus, prejudice does not
exist. Because the Rule 36(b) test is satisfied,
Tillotson's motion will be granted.
it is ORDERED that Plaintiff Kim Tillotson's motion for
leave to amend admissions, ECF No. 20, is GRANTED.
further ORDERED that the hearing scheduled for October 24,
2016, is CANCELED.
 Should Manitowoc believe that
Tillotson's responses to the request for admissions
raises new issues or necessitates additional discovery, the
Court is amenable to allowing limited additional discovery
upon good cause shown. The Court expects Tillotson to
cooperate with reasonable requests to that effect by
Manitowoc. However, because Manitowoc had notice that
Tillotson had intended to respond to the request ...