The opinion of the court was delivered by: BARBARA JONES, District Judge
Eon appeals Special Master Peterson's Order of April 26, 2004
("Order"), which granted Astra's motion to withdraw and amend the default
admissions under Fed.R.Civ.P. 36(b), and denied Eon's motion to deem
its requests for admission conclusively established. For the reasons
below, the Order is AFFIRMED.
This opinion assumes familiarity with the factual circumstances leading
up to the Order, but summarizes pertinent facts for convenience.
Eon served Astra with its Fourth Set for Requests for Admission on
October 14, 2003 ("Requests" or "RFAs"). Astra initially took the
position that it was not required to file a response because the response
would have been due after the close of discovery under the scheduling
order then in place. However, when fact discovery was extended to
December 15, Astra acknowledged its duty to submit responses.
On March 4, 2004, Eon, having received no response to date, moved for an order holding all of its Requests conclusively
established, pursuant to Fed.R.Civ.P. 36.*fn1 In opposition, Astra
asserted that its failure to file responses was "inadvertent," urged the
Court to permit withdrawal of the default admissions, and attached for
the first time formal responses to Eon's Requests. (Ltr. from Astra to
Special Master Peterson, dated Mar. 15, 2004).
In the Order, the Special Master applied a two-prong test to decide
whether to allow Astra to withdraw its default and amend its response.
Specifically, he required the parties to show that, "(1) the presentation
of the merits must be subserved by allowing the amendment, withdrawal or
late response, and (2) the party that obtained the admission must not be
prejudiced in its presentation of the case if the amendment, withdrawal,
or late response is permitted."*fn2 Order at 2 (quoting 7-36 MOORE'S
FEDERAL PRACTICE CIVIL § 36.13 (Mathew Bender 2004)).
Applying this test to the facts as he found them, the Special Master held
that the merits would be subserved by not allowing Astra to amend, and
that Eon did not demonstrate that it would suffer prejudice sufficient to
deny Astra's motion to amend. Therefore, the Special Master held that Astra should be allowed to amend its
default responses. Eon appealed.
The Court reviews those portions of the Special Master's Order that Eon
appeals de novo, and "may adopt or affirm; modify; wholly or
partly reject or reverse" the Order pursuant to Federal Rules of Civil
Procedure 53. See F.R.C.P. 53(g)(3)-(4).
Eon argues that that the Order "was erroneously decided on the law and
the facts." (Ltr. from Eon to the Hon. Barbara S. Jones, dated 4/28/04
("4/28 Ltr."), at 1). Specifically, Eon asserts that the Second Circuit
uses more stringent standards for allowing amendment of responses that
were admitted by default than those used by the Special Master, which,
Eon argues, used precedent from different circuits and standards that
would apply to amendment of timely-made responses.
The Court recognizes that there are cases in this circuit that have
questioned whether the same standards should apply in analyzing a motion
to amend admissions that were properly and timely filed, and a motion to
amend admissions that were deemed admitted by default. See
Weinberger v. Provident Life & Cas. Ins. Co., 1999 WL 225537, *1
(S.D.N.Y. Apr. 19, 1999). However, none of these cases and no
cases that are binding upon this Court go so far as to hold squarely that this standard does not apply in
cases of default. See id. (declining to hold that the relief
afforded by Fed.R.Civ.P. 36(b) is not available in cases of default);
Baker v. Dorfman, 2000 WL 420551, *5-6 (S.D.N.Y. Apr. 17, 2000)
In addition, there are several courts in this circuit that have applied
the two-prong test to motions to amend responses admitted by default.*fn3
See, e.g., Securities and Exchange Comm'n v. Batterman, 2002 WL
31190171, *6 (S.D.N.Y. Sept. 30, 2002); Securities and Exchange
Comm'n v. Thrasher, 1996 WL 460148, *1 (S.D.N.Y. Aug. 13, ...