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Reitz v. Creighton

United States District Court, N.D. Illinois, Eastern Division

November 12, 2019



          Jeffrey Cole Magistrate Judge.


         We are 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.

         On 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.



         The 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.

         The 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].

         That 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].


         As with 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.

         Moreover, 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).

         Rule 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).[1] See 7 Moore's Federal Practice § 36.02[2] (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).

         Properly 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 ...

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