Diversified Communications, Inc. v. Godard

549 A.2d 362 (1988)

DIVERSIFIED COMMUNICATIONS, INC. v. Ivan GODARD, d/b/a "The Back Forty".

Supreme Judicial Court of Maine.

Argued September 6, 1988.

Decided October 19, 1988.

*363 Stuart M. Cohen, Jay Otis (orally), Cohen & Cohen, Bangor, for plaintiff.

Ivan Godard, Deer Isle, pro se, (orally).

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and HORNBY, JJ.

HORNBY, Justice.

The defendant appeals the Superior Court's (Penobscot County; Browne, J.) affirmance of the District Court's (Bangor; Cox, J.) grant of summary judgment to the plaintiff. The District Court based its award of summary judgment upon matters the defendant was deemed to have admitted by failing to file a timely response to requests for admissions. We affirm.

The District Court's finding that the plaintiff properly served the requests for admissions upon the defendant is not clearly erroneous. Responses were not served within the 30 days required by M.R. Civ.P. 36 and indeed were not served until the day of the hearing on the plaintiff's motion for summary judgment. As a result, the matters were properly deemed admitted under the Rule. Contrary to the defendant's argument, the fact that some of the requests went to the ultimate issue, involved matters that were contested in answers to interrogatories or otherwise, entailed legal conclusions or were inadmissible at trial did not make them invalid. The defendant should have filed objections rather than failed to answer the requests. See Rule 36(a).

Although the District Court could on motion have permitted withdrawal or amendment of the deemed admissions if there were no showing of prejudice to the plaintiff, see Rule 36(b), the defendant made no such motion. Since the District Court was therefore never asked to exercise the discretion it possesses under the Rule, we have no occasion to review whether there was an abuse of discretion.

The entry is:

JUDGMENT AFFIRMED.

All concurring.