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Patterson v. Burge

July 29, 2008


The opinion of the court was delivered by: Judge Joan B. Gottschall

Magistrate Judge Geraldine Soat Brown


Defendants Richard A. Devine ("Devine"), State's Attorney of Cook County, and former Assistant State's Attorney Peter Troy ("Troy") have moved to have the court determine the sufficiency of plaintiff Aaron Patterson's ("Patterson") responses to Devine and Troy's requests to admit, and to have the requests deemed admitted pursuant to Federal Rule of Civil Procedure 36(a)(6).*fn1 For the reasons set forth below, the court grants in part Devine and Troy's motion and deems admitted Requests Nos. 4, 5, 6, 7, 18, 21, 27, 31, 32, 37, and 38. The court denies Devine and Troy's motion with respect to Requests Nos. 1, 2, and 3 and deems those responses denied by Patterson.


On May 29, 2007, Devine and Troy sent their first set of Requests to Admit to Patterson. On June 30, 2007, Patterson served his responses to Devine and Troy's Request to Admit. Devine and Troy argue that Patterson's responses to Requests Nos. 1-7, 18, 21, 31, 32, 37, and 38 (the "Requests") are insufficient under Rule 36.

On July 11, 2007, in a letter to Patterson's attorney, Carl Barry ("Barry"), Devine and Troy called attention to what they perceived as deficiencies in Patterson's answers to the Requests. In a subsequent telephone call, Barry indicated that amended responses would be provided shortly. On August 24, 2007, Troy and Devine left a follow-up telephone message with Barry, indicating that the amended responses had not yet been received and inquiring as to when they might be expected. Barry replied via a telephone message, allegedly informing Troy and Devine that he would "work it out regarding amending the responses" and invoking the court's stay order of August 29, 2007.*fn2

On October 2, 2007, Devine and Troy again wrote to Barry, requesting that, in light of the expiration of the 30-day stay order, Patterson's amended responses be transmitted to them within 14 days. On October 15, 2007, Troy and Devine again called Barry to inquire as to when the requested amended responses would be forthcoming. In that call, Devine and Troy indicated that, in view of their lack of success in obtaining amended answers to the Requests, they would have no alternative but to file a motion asking the court to deem the Requests admitted. In response, Barry sent an email to Devine and Troy on October 17, 2007, indicating that at the time he was then on trial, but that he would submit the amended responses "as soon as possible." Devine and Troy responded on October 24, 2007, indicating that, in light of Barry's representations in his latest email, they would temporarily forego filing their motion.

On November 14, 2007, Devine and Troy again emailed Barry, inquiring as to when the amended responses would be provided. That email went unanswered. On November 28, 2007, Devine and Troy called Barry and were referred to his partner, Adam Loewy ("Loewy"), whom Barry said was handling the matter at that time. Mr. Loewy allegedly stated the he was unable to say when, if ever, the amended answers would be forthcoming and stated further that he believed the original answers were sufficient.

In response, Devine and Troy filed the instant motion on November 20, 2007. On January 18, 2008, Magistrate Judge Brown set a briefing schedule for the motion, ordering Patterson to respond by February 1, 2008 and setting a hearing date of February 13, 2008. No responsive brief was filed by Patterson or his attorneys by the required date. On February 7, 2008 this court ordered that the referral to Magistrate Judge Brown be withdrawn, requiring that the instant motion (and all other matters) be noticed for hearing before the court. The hearing date before Magistrate Judge Brown was consequently stricken on February 13, 2007.

Devine and Troy renewed their motion before this court on March 17, 2008 and, on March 20, 2008, the court again set a briefing schedule on the motion, ordering Patterson to respond by May 21, 2008 and Devine and Troy to respond by June 11, 2008. Neither party has submitted briefs in response to that order and the court consequently considers the matter fully briefed.


Under Federal Rule of Civil Procedure 36(a)(3), a request to admit the truth of any matter relating to the present action is deemed admitted, unless the party to whom the request is directed serves on the requesting party a written answer or objection, signed by the responding party or his attorney, within 30 days. Fed. R. Civ. P. 36(a)(3). Moreover, if the responding party refuses to admit the matter in question, his answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. Fed. R. Civ. P. 36(a)(4). A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. Id. 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 deny. Id. Finally, the grounds for objecting to a request must be stated. Fed. R. Civ. P. 36(a)(5). A party must not object solely on the ground that the request presents a genuine issue for trial. Id. On finding that an answer does not comply with Rule 36, the court may order either that the matter is admitted or that an amended answer be served. Fed. R. Civ. P. 36(a)(6); see also Avante Int'l. Technology, Inc. v. Hart Intercivic, Inc., Civil No. 07-169-DRH, 2008 WL 2074093, at *1 (S.D. Ill. May 14, 2008).

A. Request Nos. 1-7

Requests Nos. 1-7 comprise the following ...

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