Motion to Deem Requests for Admissions Admitted?
May 12, 2011 1 Comment
One of legal listservs I subscribe to recently had several questions and answers regarding requests for admissions. Rule 36 provides in part
A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons upon that party.
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer 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 addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons upon him. If objection is made, the reasons therefor shall be stated.
The rule is simple enough. The matter is admitted if you fail to provide a written answer or objection. However, attorneys are still questing whether or not a “motion to deem requests for admissions admitted” is necessary when you don’t receive a response to your requests. At least one attorney relayed that a Circuit Judge in Hinds County required such a motion prior to the requests actually being admitted.
So what does our Supreme Court have to say about the issue?
We find that it was unnecessary for the Pendletons to petition the chancellor to deem the requests for admission admitted. Consequently, the chancellor was in error for denying the request as being untimely filed. According to Mississippi Rule of Civil Procedure 36(a), a “matter is admitted unless, within thirty days after service of the request … the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.” Thus, a judge does not have the discretion to deem the matter admitted, because a request is conclusively established upon a party’s failure to answer within thirty days, or such time as the judge has determined appropriate. Miss. R. Civ. P. 36(b).
In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 433 (Miss. 2009). So there you have it. No need to file that motion. However, if the judge is just insistent that you file such a motion, your failure to do so is at your own peril. That brings up another rule absent from the Mississippi Rules of Civil Procedure….”Know thy judge.”