United States District Court, W.D. Kentucky, Paducah Division
OPINION AND ORDER
LANNY KING, Magistrate Judge.
Plaintiffs Malissa and Michael Stack (the "Stacks"), pursuant to Rule 36(a)(6) of the Federal Rules of Civil Procedure, moved this Court in their Motion to Order Requests for Admission as Admitted or Alternatively, Motion to Compel Responses to Requests for Admission to order 28 responses to requests for admission admitted, or alternatively to require amended responses. (Docket # 92). For the reasons stated in this opinion and order, the Court grants the Stacks' motion as to 24 requests, ordering two requests admitted and ordering amended responses to 22 requests. The Court denies the Stacks' motion as to four requests.
The Stacks filed their Complaint in a separate action, No. 5:13-CV-18-TBR (W.D. Ky. Feb. 6, 2013), that District Judge Russell consolidated with this case. (Docket # 30). Their Complaint alleges that Defendant Roy Hastings crashed a van on Interstate 24, in a one-vehicle accident, while an agent or employee of Defendant Prestige Delivery Systems, Inc.'s ("Prestige"). Compl. at paras 7, 9, Stack v. Hastings, No. 5:13-CV-18-TBR (W.D. Ky. Feb. 6, 2013). The Stacks, traveling in a tractor-trailer, later collided with Mr. Hastings' van, which came to rest blocking both lanes of the interstate. Id. at paras. 9-10. The Stacks sued Mr. Hastings and Prestige for negligence. Id. at paras. 15-18.
Mr. Hastings disappeared at the time of the collision. (Docket # 60). His counsel has stated that "it is believed that he [Mr. Hastings] was thrown or jumped from the roadway into the Cumberland River below [the bride where the accident occurred] and perished." Id. The parties have kept the Court aware of state-court proceedings in Ohio required to declare Mr. Hastings dead and begin probate. (Docket # 76). The Court addresses the sufficiency of Prestige's responses to the requests for admission based on the requirements of Rule 36, keeping in mind that Mr. Hastings' presumed death limits the sources Prestige may consult in formulating its responses and in specifying a reasonable inquiry when it cannot admit nor deny.
Rule 36 Motions
Rule 36 provides one means for a discovering party to address a response to a request for admission. That party may move the Court to determine the sufficiency of an answer or objection to a request to produce. Fed.R.Civ.P. 36(a)(6). In determining the sufficiency of an objection, the Court may sustain the objection or order an answer served. Id. In determining the sufficiency of an answer, the Court may find the answer sufficient or, if insufficient, either order the matter deemed admitted or that the responding party serve an amended answer. Id. In the instant matter, the Stacks challenged the sufficiency of 28 of Prestige answers to requests to produce: requests numbered 2-13, 16-20, 25-28, 30, 33, 34, 36, 43a, 43b,  and 54. (Docket # 92). Prestige raised objections and made answers to each of these requests. (Docket # 93-1).
Prestige made two sets of objections to each request for admission. First, Prestige raised what it called preliminary objections. After stating these objections, Prestige proceeded to answer the requests, "without waiving" the preliminary objections. Second, in response to each and every request, Prestige began with a list of objections, identical for each request. Many of these repetitive objections repeated preliminary objections. Prestige then answered each request "without waiving" its objections. (Docket # 93-1).
An objecting party must object with specificity to particular requests for admission. Henry v. Champlain Enters., Inc., 212 F.R.D. 73, 78 (N.D.N.Y. 2003); Diederich v. Dept. of the Army, 132 F.R.D. 614, 616 (S.D.N.Y. 1990); see also Janko Enters., Inc. v. Long John Silver's, Inc., No. 3:12-CV-345-S, 2013 WL 5308802, at *7 (W.D. Ky. Aug. 19, 2013) (stating a party must make specific objections related to requests to produce and interrogatories). The lack of specificity in Prestige's objections left the Stacks without the ability to address the grounds for objection squarely. Prestige bears the burden of explaining the propriety of its objections and boilerplate objections do not accomplish this task. 2013 WL 5308802, at *7 (citing McLeod, Alexander, Powell & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)). Therefore, the Court overrules the objections, preliminary and intra-response, because they lack specificity and fail to meet Prestige's burden when stating an objection.
"Requests for admission are not a general discovery device." Misco, Inc. v. U.S. Steel Corp., 784 F.2d 198, 205 (6th Cir. 1986). Rule 36 serves two purposes-to narrow the list of contested issues prior to trial (and thereby avoid wasting resources) and to elicit proof on the remaining issues. Fed.R.Civ.P. 36 advisory committee notes; O'Neill v. Medad, 166 F.R.D. 19, 21 (E.D. Mich. 1996). These purposes further support overruling the objections because Prestige stated them in a "without waving" fashion. The rules require a party to either answer or object to a request for admission, not both. Fed.R.Civ.P. 36(a)(3) ("A matter is admitted unless... the party... serves... a written answer or objection." (emphasis added)). A party may move the court to overrule an objection. Fed.R.Civ.P. 36(a)(6). An answer to a request for admission also entails consequences. An admission conclusively establishes the matter; a denial may result in sanctions. Fed.R.Civ.P. 36(b), 37(c)(2).
Other district courts that have found the discovery rules do not permit "subject to" or "without waiving" discovery responses. E.g., Mann v. Island Resports Dev., Inc., 2009 WL 6409113, at *3 (N.D. Fla. Feb. 27, 2009) (addressing requests for admission alongside requests for production and interrogatories and stating that "without waiving" objections fail because they lack a basis in the discovery rules, the (admittedly limited) caselaw and commentary support the conclusion, and the practice "lacks any rational basis") (citing Meese v. Eaton Mfg. Co., 35 F.R.D. 162, 166 (N.D. Ohio 1964); 8B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2173 (3d ed. 2010)). But see Nix v. Holbrook, No., 2015 WL 733778, at *4 (D.S.C. Feb. 20, 2015) (recognizing the split of authority on the subject, in the context of interrogatories, and citing precedent for both outcomes). This Court agrees with the reasoning that "without waiving" objections are improper and waive the objections. Moreover, much of the caselaw allowing "without waiving" objections relies on the 1993 amendment of Rule 33 to state that an "interrogatory must, to the extent it is not objected to, be answered separately and fully." Fed.R.Civ.P. 33(b)(3) (emphasis added); see e.g., Schipper v. BNSP Ry. Co., No. 2:07-CV-02249-JWL-DJW, 2008 WL 2358748, at *1 (D. Kan. June 6, 2008). Rule 36 does not contain language allowing a party to answer a request to the extent not objected to. Compare Fed.R.Civ.P. 33(b)(3), with Fed.R.Civ.P. 36(a)(3).
The Court holds that a party cannot cloak its answers in without-waiving objections. That practice has no basis in the Rule 36 and would avoid the rule's narrowing-of-issues goal. For each instance when Prestige answered a request for admission after asserting objections, the Court overrules its objections. To the extent this Court orders Prestige to serve amended responses, Prestige must make either a specific objection or an answer, not both.
The Court addresses Prestige's answers to the Stacks requests in groups, according to the common ...