United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge.
told with increasing frequency that “[p]re-trial
discovery under modern federal practice has become a monster
on the loose and that “[p]re-trial proceedings have
become more costly and important than trials themselves,
'” ADD MODERN CASE A.H. Robins Co. v.
Piccinin, 788 F.2d 994, 1013 (4th Cir. 1986). Indeed we
have it on the highest authority that “protracted
pretrial discovery is the bane of modern federal
litigation.” Rossetto v. Pabst Brewing Co.,
Inc., 217 F.3d 539, 542 (7th Cir. 2000). Accord,
Menard v. CSX Transp., Inc., 2014 WL 359956, at *1
(D. Mass. 2014). The present controversy is an example of why
these concerns about discovery continue to b expressed.
September 16, 2019, the plaintiff filed a Motion to Deem
Admitted the Defendants' Answers to the Plaintiff's
Requests 1-24. [Dkt. # 144]. At the time the case was
assigned to Magistrate Judge Finnegan as the designated
magistrate. The case was terminated in September of 2017 due
to “inability of Plaintiff to litigate the case.”
[Dkt. # 124]. One of plaintiff's expert witnesses was
stricken by a serious illness. [Dkt. #122]. Magistrate Judge
Finnegan understandably closed the referral. [Dkt. # 125].
About a year later, plaintiff moved to reopen the case, and
Judge Coleman - who was newly assigned to the matter, and the
third District Judge to preside over this case - granted the
motion. [Dkt. ## 129, 131]. Judge Coleman referred the
plaintiff's recent motion to me on October 11, 2019.
[Dkt. # 153]. For the reasons discussed below, the
plaintiff's motion is denied.
factual issue underlying the case involves what happened
between three police officers - Vincent Clark, Martin
Creighton, and Robert Lee - and the plaintiff, Frances Reitz,
inside and just outside the home of third party defendant,
Anthony Garcia, who was also present. [Dkt. ## 23, 29, 61,
63]. Plaintiff alleges she was forcibly thrown to the ground
and wrongfully arrested. The police have a very different
view of what happened. So, there are perhaps five or six
versions of what would not appear to be a complicated
occurrence. Yet, this case is well into its fifth year - or
its fourth, if one discounts the year of hiatus as a result
of the illness of a witness.
plaintiff has asked for, and has been given, at least four
extensions of the discovery deadline. [Dkt. ## 64, 71, 95,
97, 101, 103, 108, 110, 122]. All told, minus the year that
this case was on hold due to the illness of plaintiff's
witness, as of April 2019, the original discovery deadline
has been extended by two years [Dkt. ## 10, 137], for a total
of more than three years of discovery. But, as all things,
good and bad, must end, including discovery. Flint v.
City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015);
Liqwd, Inc. v. L'Oreal USA, Inc., 2019 WL
2083299, at *2 (D. Del. 2019). Judge Coleman thus ordered
discovery closed on May 16, 2019. [Dkt. #137].
means that plaintiff's motion to deem admitted was due no
later than April 15, 2019. Fed.R.Civ.P. 36(a)(3); Local Rule
16.1(4). Failure to timely respond results in the matter
being deemed admitted. Id. But, in her motion,
plaintiff tells us that she did not submit her
“requests to admit” to defendants until three
months after that, on July 26, 2019. [Dkt. #144]. Her
motion is exceedingly and unjustifiably late. Plaintiff
neither moved for, nor was granted any additional extension
of time in which to complete discovery. Even though
procrastination can be fatal in these matters,
Rivera-Almodovar v. Instituto Socioeconomico Comunitario,
Inc., 730 F.3d 23, 28 (1st Cir. 2013), on August
16th, Judge Coleman generously allowed
plaintiff's late submissions and ordered defendants to
respond to the plaintiff's requests to admit by September
9, 2019. [Dkt. #141].
all discovery matters, a district court has significant
discretion in ruling on a motion under Fed.R.Civ.P. 36.
Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1059
(7th Cir. 2000). Within that range of discretion, it
certainly would be unfair, given that plaintiff was not held
to the letter of the discovery deadline, see Edeh v.
Equifax Info. Servs., LLC, 2013 WL 12304665, at *2 (D.
Minn. 2013)(collecting cases holding requests to admit to
discovery deadlines) - not to mention several discovery
deadlines prior to that - to hold defendants to the letter of
Fed.R.Civ.P. 36 and grant plaintiff the harshest sanction
available under the Rule. Every accommodation allowed one
side has a corresponding effect on the other.
it is not as though defendants failed to respond at all;
plaintiff just does not like their responses, especially
since they fail specifically to state that reasonable inquiry
was made before the denial. The movants note that the Rule
requires that a reasonable inquiry be made as a precondition
to a denial. Fed.R.Civ.P. 36(a)(4). In most instances, when
that is the issue, the harshest remedy is to allow the
responding party to amend its answers to conform with the
Rule. See, e.g., Brown v. Overhead Door Corp., 2008
WL 4614299, at *2 (N.D. Ill. 2008); Loudermilk v. Best
Pallet Co., LLC, 2009 WL 3272429, at *7 (N.D. Ill.
2009); Adams v. Cananagh Communities Corp., 1988 WL
64097, at *2 (N.D. Ill. 1988).
36, Federal Rules of Civil Procedure, is, under the view of
many, not really a discovery device in the traditional sense
that it is used to unearth unknown relevant facts, but rather
to establish facts without the necessity of formal (often
contested) proof at trial. United States v.
Kasuboski, 834 F.2d 1345 (7th Cir.1987); Anderton v.
Walmart Stores, Inc., 2012 WL 3526788 at *4 (S.D.Ill.
2012); Sommerfield v. City of Chicago, 251 F.R.D.
353, 356 (N.D.Ill. 2008); Nat'l Semiconductor Corp.
v. Rantron Intern'l Corp.., 265 F.Supp.2d 71, 74-75
(D.D.C. 2003). See 7 Moore's Federal
Practice § 36.02 (3d ed. 2000) (“Because Rule
36 was not designed to elicit information, to obtain
discovery of the existence of facts, or obtain production of
documents, requests for admission should not be used as a
method of discovery for those purposes.”);
Stallings-Daniel v. The Northern Trust Co., 2002 WL
424629, at * 1 (N.D.Ill.2002); National Semiconductor
Corp. v. Ramtron Intern'l Corp., 265 F.Supp.2d 74,
75 (D.D.C. 2003).
used, requests to admit serve the expedient purpose of
eliminating the necessity of proving at trial essentially
undisputed issues of fact. See Donovan v. Carls Drug Co.,
Inc., 703 F.2d 650, 652 (2d Cir.1983); Moosman v.
Joseph P. Blitz, Inc., 358 F.2d 686, 688 (2d Cir.1966);
Yahaya v. Hua, 1989 WL 214481, at *6 (S.D.N.Y.1989);
State of Vermont v. Staco, Inc., 684 F.Supp. 822,
829 (D.Vt.1988); Thalheim v. Eberheim, 124 F.R.D.
34, 35 (D.Conn.1988). “‘Rule 36 should not be
used unless the statement of fact sought to be admitted is