Westfield Group v. Kentucky Utilities Co. et al, No. 5:2012cv00241 - Document 35 (E.D. Ky. 2013)
Court Description: MEMORANDUM OPINION AND ORDER: 1) 20 Motion for Summary Judgment is DENIED WITHOUT PREJUDICE. 2) 24 Motion for Leave to Withdraw and Amend Responses to KU's Request for Admissions is GRANTED. 3) Pla's 26 Motion for Continuance to Complete Additional Discovery is DENIED AS MOOT. 4) 25 Motion to File an Amended Complaint is GRANTED. Signed by Judge Joseph M. Hood on 6/28/2013. (SCD)cc: COR
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON WESTFIELD GROUP A/S/O KENTUCKY EAGLE, INC., ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. KENTUCKY UTILITIES CO., et. al., Defendants. Civil Case No. 5:12-cv-241-JMH MEMORANDUM OPINION & ORDER *** This matter is before the Court on Defendant Kentucky Utilities summary Company s judgment ( Kentucky [D.E. 20], Utilities ) Plaintiff motion Westfield for Group s ( Westfield ) motion under Federal Rule of Civil Procedure 56(d) to continue discovery [D.E. 26], Westfield s motion for leave Utilities to withdraw request for or amend admissions responses under to Federal Kentucky Rule of Civil Procedure 36(b) [D.E. 24], and Westfield s motion to file an amended complaint [D.E. 25]. For all of the above- listed motions, either the time has expired for a response, or the appropriate responses [D.E. 26, D.E. 32] and replies [D.E. 30, D.E. 34] have been filed. are now ripe for review. Court will deny Thus, these motions For the reasons which follow, the Kentucky Utilities motion for summary judgment [D.E. 20], grant Westfield s motion for leave to withdraw request or for amend the Westfield s denied as moot. discovery and Utilities motion to file an amended complaint [D.E. 25]. continue 24], Kentucky Westfield s to [D.E. to grant motion admissions responses under Rule 56(d) will case arises be [D.E. 26]. I. FACTUAL AND PROCEDURAL BACKGROUND The traffic underlying accident dispute that took in this place on July Southland Drive in Lexington, Kentucky. that evening, ( Kentucky one Eagle ) of Plaintiff employees was a 2010, on [D.E. 1 at 3]. On Kentucky 27, from Eagle, lawfully Inc. s operating a tractor-trailer owned by Kentucky Eagle when he collided with overhead electric and/or telephone lines. 3]. [D.E. 1 at The electric and telephone lines were attached to a mast, which, as a result of the collision, fell over and caused an electrical fire to break out at Hunan Restaurant. [D.E. 1 at 3]. Ohio Casualty Company was the insurer for the owner and tenant of Hunan Restaurant. [D.E. 26-3 at 2]. As the liability insurer for Kentucky Eagle, Westfield paid claims on its behalf to Ohio Casualty Company. 3]. filed [D.E. 26-3 at 2 Afterwards, Westfield, as subrogee of Kentucky Eagle, a complaint in this action seeking relief from Kentucky Utilities and Windstream Kentucky East, LLC, the 2 respective owners of the electrical and phone lines that allegedly, according to Westfield, caused the accident. [D.E. 1 at 2 3]. The present admissions January served 28, 2013. dispute on arises Westfield Westfield over by a Kentucky failed to request for Utilities respond to on the request for admissions within the time allotted by Federal Rule of Civil Procedure 36(b) due to a filing error.1 The request for admissions served upon Westfield essentially asked it to admit their entire legal case. example, by not responding to the request, For Westfield admitted that Kentucky Eagle, Inc. and/or John Porter is at fault for causing the subject fire and that it has no evidence to Eagle truck struck an electrical line and not a telephone line. [D.E. 20-3 at 1]. establish th61at the Kentucky Therefore, because Westfield never answered the request, Kentucky Utilities, without first contacting Westfield about their failure to respond, filed a summary judgment motion on May 2, 2013. followed with a motion to [D.E. 20]. continue 1 Kentucky Westfield Utilities It is a sad day when counsel chooses to play gotcha with opposing counsel. A simple telephone call or email would have allowed counsel to determine whether opposing counsel intended not to respond to the requests for admission, thereby saving the Court and the parties much time, money, and effort, since the parties could have then worked out a resolution without troubling the Court. 3 motion under Rule 56(d) until the end of the discovery period set by this Court s scheduling order [D.E. 26], a motion for leave to withdraw or amend its response to the request for admissions under Rule 36(b) [D.E. 24], and a motion to file an amended complaint [D.E. 25]. II. ANALYSIS A district court has considerable discretion over whether to permit withdrawal or amendment of admissions. Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 154 (6th Cir. 1997) (internal citation and quotation marks omitted). However, [t]he court's discretion must be exercised in light of Rule 36(b), which permits withdrawal (1) when the presentation of the merits of the action will be subserved thereby, and (2) when the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party action or defense on the merits. in maintaining the Id. (quoting Fed. R. Civ. P. 36(b)). The first prong of the test articulated in Rule 36(b) is satisfied when upholding the admission would practically eliminate any presentation on the merits of the case. Riley v. Kurtz, No. 98-1077, 194 F.3d 1313, *2 (6th Cir. Sept. 28, citation 1999) and (unpublished quotation marks 4 table opinion) omitted). (internal Further, the prejudice contemplated by the second prong of Rule 36(b) is not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth. Kerry Steel, 106 F.3d at 154. Instead, prejudice under Rule 36(b) relates to special difficulties a party may face caused by a sudden need to obtain evidence upon withdrawal or amendment of an admission. Riley, 194 F.3d at *2 (quoting Kerry Steel, 106 F.3d at 154). There is no doubt that upholding Westfield s admissions in this case would eliminate any resolution of this issue on the merits. The request asked Westfield to admit point blank that it had no evidence to establish that the Kentucky Eagle truck struck an electrical line, and that Kentucky Eagle was at fault for causing the fire at issue. amend [D.E. 20-3 at 1]. the 36(b), admissions since Thus, permitting Westfield to satisfies allowing the the first amendment prong would of Rule certainly promote the presentation of the merits of the action. Fed. R. Civ. P. 36(b). The Sixth Circuit s decision in Riley supports this conclusion. Riley, 194 F.3d at 1313. In Riley, the Defendant overlooked the word falsely in the request for admissions served upon him. inadvertently admitted to Id. at *2. falsely 5 As a result, he making accusations against the Plaintiff, which was a core issue in the case. Id. to The Sixth Circuit noted that permitting the Defendant withdraw prong amend the Rule of or 36(b) because undeniably allowed adjudicated. the Id. omission an satisfied merits of the first would amendment the have case to be An identical conclusion is appropriate here. Further, Kentucky Utilities will not be prejudiced in maintaining and defending the action on the merits, as it will not be confronted with any special difficulties from a sudden need to obtain evidence upon . . . amendment. Kerry Steel, 106 F.3d at 154 (internal citation omitted). This is particularly the case because the parties discovery period, as set forth in this Court s December 14, 2012 scheduling order [D.E. 15], sets the deadlines for completion expert of discovery parties have significant Kentucky granted fact yet on that on December to take discovery. Utilities is discovery will 30, suffer the if 9, 2013. depositions Thus, Kentucky September Further, or only will and both conduct prejudice Westfield s Utilities 2013, any that motion is have to now convince the fact finder of the truth of the unanswered request for admissions, an 6 undertaking which is not considered prejudice under Rule 36(b). Kerry Steel, 106 F.3d at 154. This conclusion precedent. is supported by Sixth Circuit For example, in Clark v. Johnston, 413 F. App x 804 (6th Cir. 2011) (unpublished), a panel determined that a plaintiff was not prejudiced by the district court s grant of leave to the defendant to withdraw responses to admissions because the plaintiff still had plenty of time during the discovery process to introduce other evidence that the court could have considered in deciding a summary judgment motion. Similarly in this case, Kentucky Utilities has plenty of time to conduct discovery and file a summary judgment motion on the merits of the action. Cf. Riley, 194 F.3d at *2 (holding that the defendant would be prejudiced if the plaintiff were granted leave to amend his responses because the plaintiff did not move to amend until the third day of trial after the close of his case). Accordingly, [b]ecause the risk of prejudice to [Kentucky Utilities] is low and the request at issue goes to the heart of the dispute, the Court will use its considerable discretion to grant Westfield s motion for leave to amend or withdraw the responses to request for admissions. Scott v. Garrard Cnty. Fiscal Court, No. 5:08- cv-273-JMH, 2012 WL 619230, at *2 (E.D. Ky. Feb. 24, 2012); 7 Kerry Steel, 106 F.3d at 154; [D.E. 24]. Because Westfield s failure to respond to the request is the only basis upon which Kentucky Utilities moved for summary judgment, the summary judgment motion is, therefore, denied without prejudice. pursuant to scheduling the Discovery shall continue in this case deadlines order. [D.E. set forth 15]. in this Therefore, Court s Westfield s motion for a continuation to complete additional discovery is denied as moot. Westfield also filed a motion seeking permission to file an amended complaint in this action. [D.E. 25]. This motion is unopposed, as the time has expired for a response to be filed. The only amendments suggested in the proposed amended complaint are to change the address of Defendant Windstream Kentucky East, LLC, so that the address is correctly reflected in the record, and the correction of a typographical motion was error filed in in a paragraph timely 11. fashion [D.E. on May 25]. The 22, 2013, pursuant to the Court s scheduling order, which required amended pleadings to be filed by June 6, 2013. Plaintiff s motion is granted. III. CONCLUSION For the reasons stated above, IT IS ORDERED: 8 Thus, 1) that Defendant s Motion for Summary Judgment [D.E. 20] is DENIED WITHOUT PREJUDICE; 2) that Plaintiff s Motion for Leave to Withdraw and Amend Responses to KU s Request for Admissions [D.E. 24] is GRANTED; Plaintiff has ten (10) days to serve complete responses to Kentucky Utilities Request for Admissions on Defendant; 3) that Plaintiff s Motion for a Continuance to Complete Additional Discovery [D.E. 26] is DENIED AS MOOT. Discovery shall run until the specified times in this Court s scheduling order [D.E. 15]; 4) that Plaintiff s Motion Complaint [D.E. 25] is GRANTED. This the 28th day of June, 2013. 9 to File an Amended
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