THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Leeruw v. Yap ,
4 FSM Intrm. 145 (Yap 1989)

[4 FSM Intrm. 145]

ESTATE OF ESTHER LEERUW et  al.,
Plaintiffs,

vs.

YAP STATE HOSPITAL et  al.,
Defendants.

FSM CIV. NO. 1986-3012

OPINION AND ORDER

Before Edward C. King
Chief Justice
September 11, 1989

[4 FSM Intrm. 146]

APPEARANCES:
For the Plaintiffs:        Mariano W. Carlos
                                     Attorney at Law
                                     P.O. Box 91
                                     Colonia, Yap  96943

For the Defendants:   Cyprian J. Manmaw
                                     Attorney General
                                     Office of the Attorney General
                                     Colonia, Yap  96943

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HEADNOTES
Civil Procedure - Admissions
     Although the court may allow for an enlargement or a restriction of the time in which to respond to a request for admissions, a complete failure to respond within that allotted time automatically constitutes an admission, without any need for the requesting party to move for a declaration by the court that the matters are deemed admitted.  Leeruw v. Yap, 4 FSM Intrm. 145, 148 (Yap 1989).

Civil Procedure - Admissions
     Once matters have been admitted through a failure to respond to a request for admissions, a motion by the responding party to file a late response to the request for admissions will be treated as a motion to withdraw and amend the admissions.  Leeruw v. Yap, 4 FSM Intrm. 145, 148 (Yap 1989).

Civil Procedure - Admissions
     One purpose of requests for admissions is to relieve the parties of having to prove facts which are not really in dispute.  Leeruw v. Yap, 4 FSM Intrm. 145, 149 (Yap 1989).

Civil Procedure - Admissions
     If a requesting party relies on admissions to its prejudice, it would be manifestly unjust to allow the responding party to amend its responses at a later time, but the sort of prejudice contemplated by the rule regards the difficulty the requesting party may have in proving the facts previously admitted, because of lack of time or unavailability of witnesses or evidence, not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth.  Leeruw v. Yap, 4 FSM Intrm. 145, 149 (Yap 1989).

Civil Procedure - Admissions
     FSM Civ. R. 36, regarding requests for admissions, is intended to expedite discovery and trial, to simplify issues and make litigation more efficient.  Leeruw v. Yap, 4 FSM Intrm. 145, 149 (Yap 1989).

Civil Procedure - Admissions
     When a party who has admitted matters through a failure to respond to a request for admissions later moves to withdraw and amend its response, and the

[4 FSM Intrm. 147]

requesting party has not relied on the admissions to its detriment, the imposition of penalties other than conclusive admission is a sensible approach, as it both avoids binding a party to an untrue and unintended admission and yet helps insure respect for the importance of the rules of procedure and the need for the efficient administration of justice.  Leeruw v. Yap, 4 FSM Intrm. 145, 149-50 (Yap 1989).

Attorney, Trial Counselor and Client; Courts
     Courts have inherent power, and an obligation, to monitor the conduct of counsel and to enforce compliance with procedural rules.  Leeruw v. Yap, 4 FSM Intrm. 145, 150 (Yap 1989).

*    *    *    *

COURT'S OPINION
EDWARD C. KING, Chief Justice:

I.  Factual Background
     The plaintiffs in this action delivered a request for admissions to the defendants, Yap State Hospital and Yap State Government, on February 16, 1988, pursuant to Rule 36(a) of this Court's Rules of Civil Procedure.  On March 14, 1988 the defendants requested an enlargement of time in which to respond to the request for admissions, until June 10 of that year, which the Court granted. Nevertheless, defendants never responded to the request, either at that time or since then.

     On June 29, 1989, over a year after the expiration of the time granted in which to respond to the request for admissions, this Court brought the matter to the attention of defendants' counsel during a pretrial hearing.  Subsequently, the plaintiffs filed a motion requesting that the statements set forth in the request for admissions be considered conclusively admitted.  Defendants have opposed this motion, and ask now for leave to file a late response to the request for admission.1

     Following the plain language of the Rules of Civil Procedure, this Court now finds that the defendants' failure to timely respond to the request for admissions did in fact constitute an admission of the statements contained in the request. However, in the interests of allowing full consideration of the merits of the case and absent a showing of undue prejudice to the plaintiffs, the Court grants the defendants ten days leave to file an amended response to the request for admissions, subject to the condition that within that same ten days period defendants shall pay a sanction of $500.00, imposed to offset plaintiffs' costs and expenses on this matter.

II.  Legal Analysis
     Rule 36 of the FSM Rules of Civil Procedure states that:  "Each matter [of which an admission is requested] is admitted unless, within 30 days after service of the request, or within such shorter or longer

[4 FSM Intrm. 148]

time as the Court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection... " FSM Civ. R. 36(a).  The language of the rule is clear and unambiguous.  Although the Court may allow for an enlargement or a restriction of the time in which to respond to a request for admissions, a complete failure to respond within that allotted time constitutes an admission.  The rule does not require that the requesting party move for a declaration by the Court that the matters are deemed admitted; rather, the admission is automatic.

     Although this Court has had no prior opportunity to comment on Rule 36, it is modeled on Rule 36 of the United States Federal Rules of Civil Procedure, which this Court has adopted virtually word for word.  Thus, the analysis of the rule in the courts of the United States can help guide our interpretation in this jurisdiction as well.  Cf. Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984); FSM v. Ponape Builders Constr. Inc., 2 FSM Intrm. 48, 52 (Pon. 1985).  In the extensive American jurisprudence regarding Rule 36, the prevailing rule is that if a party fails to timely answer a request for admissions, the requested items are deemed admitted, even when the matters in question are material facts that conclusively establish or preclude a claim.  Brook Village North Associates v. General Electric Co., 786 F.2d 66, 70 (1st Cir. 1982); Anchorage-Hynning & Co. v. Moringiello, 687 F.2d 356 (D.C. Cir. 1983).  There is no need for the requesting party to take any positive action to have a failure to respond considered to be an admission. Weva Oil Corp. v. Belco Petroleum Corp., 68 F.R.D. 663 (N.D. W. Va. 1975); Federal Procedure 26:294 (L. Ed. 1981).

     In the present case, the defendants completely failed to respond to the plaintiffs' request for admission, even after having been granted an extension of time.  We see no reason that such a failure should not be regarded as an admission upon which the plaintiffs could fully rely in preparing their case for trial.

     Next, we turn to the defendants' motion for leave to file a late response to the request for admission.  Since the defendants have already admitted the matters in question through their failure to respond, we will treat this motion more properly as the defendants' motion to withdraw and amend their admissions.  Again, other courts have agreed with this understanding of a late response.  Smith v. First Nat'l Bank of Atlanta, 837 F.2d 1575 (11th Cir. 1988);  Gutting v. Falstaff Brewing Co., 710 F.2d 1309 (8th Cir. 1983); Westmoreland v. Triumph Motorcycle Corp., 70 F.R.D. 192 (D. Conn. 1976).

     Rule 36(b) lays out the standard that this Court must use to determine whether it is proper to allow later amendments to admissions: "the court may permit withdrawal or amendment [of the admission] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits."

[4 FSM Intrm. 149]

FSM Civ. R. 36(b).

     There is no question that the merits of this case will be more fully served by not binding the defendants to admissions regarding material facts which may be false.  One purpose of Rule 36 and requests for admissions is to relieve the parties of having to prove facts which are not really in dispute.  8 C. Wright & A. Miller, Federal Practice and Procedure 2252 (1970 & Supp. 1987).  The statements set forth in the request for admissions apparently are disputed facts. Thus, forbidding amendment would not further the underlying purpose of the rule.

     Of course, if plaintiffs had relied on the admissions to their prejudice, it would be manifestly unjust to allow the responding party to amend its responses at a later time.  The sort of prejudice contemplated by the rule regards the difficulty the requesting party may have in proving the facts previously admitted, because of lack of time or unavailability of witnesses or evidence.  It is "not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth."  Brook Village, 786 F.2d at 70.  See also Westmoreland, 71 F.R.D. at 192.  Plaintiffs here, however, have not claimed any reliance on the admissions in virtue of which they would be unduly prejudiced by the withdrawal and amendment of the defendants' admissions.  Discovery is still open in the case, and the trial is not scheduled to begin for nearly five months.

     Consequently, the Court finds the defendants' motion for leave to file an amended response appropriate in the circumstances; it will aid in the presentation of the merits at trial, and will not prejudice the plaintiffs in the preparation of their case.  We grant leave for the defendants to file amended responses to the plaintiffs' request for admission within 10 days of this order.

     At the same time, however, the Court must express its dissatisfaction with the delay and negligence of defendants in this matter.  For over a year, defendants failed to take notice of the request for admissions.  Rule 36 is intended to expedite discovery and trial, to simplify issues and make litigation more efficient. 8 C. Wright & A. Miller, 2252.  The defendants' delay in responding has contributed to the already excessively protracted pre-trial period in this action and has unnecessarily delayed the plaintiffs' efforts at discovery.  Defendants' counsel has offered his own negligence as an explanation and excuse in this matter.  If that is the case, then counsel has seriously jeopardized his clients' case and risked having its merits ignored.  It would be within the Court's discretion to deny the defendants' motion because of this negligence.

     In similar instances, other courts have imposed penalties on the delaying party, such as conditioning the leave to amend after a complete failure to respond on an acceptance of costs or a shifting of the burden of proof. Jackson v. Kotzebue Oil Sales, 17 F.R.D. 204 (D. Alaska 1955); Hadra v. Herman Blum Consulting Engineers, 74 F.R.D. 113 (N.D. Tex. 1977).  We find the imposition of penalties other than conclusive admission a sensible approach in

[4 FSM Intrm. 150]

this case, as it both avoids binding a party to an untrue and unintended admission and yet helps ensure respect for the importance of the rules of procedure and the need for the efficient administration of justice.

     Courts have inherent power, and an obligation, to monitor the conduct of counsel and to enforce compliance with procedural rules.  An exercise of that power is required here.  As a condition to the right of the defendants to amend this response to the requests for admissions as authorized in this opinion, defendants are ordered to pay a sanction of $500 to the Court on or before filing the amended response.  This amount shall then be delivered to counsel for plaintiffs to reimburse plaintiffs for inconveniences and expenses sustained by plaintiffs and their counsel as a result of defendants' failure to file timely responses to the request for admissions.

     So ordered the 4th day of September, 1989.

*    *    *    *

Footnote:

1.  All parties have agreed to waive oral argument on this motion.
                                                                                                                                                                                                                                                                                                           
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