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Taylor v. McGill Environmental Systems of Nc, Inc.

United States District Court, E.D. North Carolina, Southern Division

March 12, 2015

VICTORIA L. TAYLOR, individually and as executrix of the estate of Brandon C. Taylor, and as mother and guardian ad litem of minor children CCT and BLT, Plaintiff,
v.
McGILL ENVIRONMENTAL SYSTEMS OF N.C. , INC., Defendant.

ORDER

ROBERT B. JONES, Jr., Magistrate Judge.

This matter comes before the court on several motions, namely (1) Plaintiffs Motion to Modify the Scheduling Order to Set a Date Certain for the Rule 30(b)(6) Deposition, to Extend the Time for the Naming of Experts, and for an Expediting Hearing [DE-28]; (2) Plaintiffs Motion to Allow Amendment of Deemed Admissions or to Extend Time for Service of Responses to Requests for Admissions [DE-30]; (3) Plaintiffs Motion for Leave to Amend the Complaint [DE-32]; (4) Plaintiffs Motion to Compel Rule 30(b)(6) Deposition [DE-44]; (5) Defendant's Motion for Protective Order [DE-47]; and (6) Defendant's Motion to Compel [DE-53]. All briefing is complete, and the motions are ripe and have been referred to the undersigned for disposition. [DE-55]. For the reasons that follow, Plaintiffs Motion to Modify the Scheduling Order [DE-28] is denied as moot, Plaintiffs Motion to Allow Amendment of Deemed Admissions [DE-30] is allowed, Plaintiffs Motion for Leave to Amend the Complaint is [DE-32] allowed, Plaintiffs Motion to Compel [DE-44] is denied, Defendant's Motion for Protective Order [DE-47] is allowed, and Defendant's Motion to Compel [DE-53] is allowed in part and denied in part.

I. BACKGROUND

Plaintiff filed the complaint initiating this matter on December 19, 2013, alleging claims for wrongful death, negligence, loss of consortium, and punitive damages arising out of the death of Plaintiffs husband, Brandon Taylor. Compl. [DE-1]. The complaint alleges that Taylor, an employee at the Smithfield Packing Plant, inhaled toxic hog waste gas while draining hog wastewater sludge from the plant's overhead storage tank into the tanker truck owned by Defendant McGill, which resulted in Taylor's death. Id. ¶¶ 1, 4. The court entered the Scheduling Order on March 6, 2014, with the following relevant provisions: reports from retained experts due by November 21, 2014, and from rebuttal experts by December 19, 2014; discovery to be completed by March 13, 2015; and potentially dispositive motions to be filed by April 17, 2015. [DE-13] at 1 ¶¶ 2-4. The Scheduling Order further provided that "motions... to amend pleadings must be made promptly after the information giving rise to the motion becomes known to the party or counsel. Any such motion filed after May 30, 2014, must meed the standards of Fed.R.Civ.P. 15 and 16." Id. at 2. On April 17, 2014, Defendant filed an amended answer and third party complaint against The Smithfield Packing Company, Incorporated ("Smithfield") [DE-14], but voluntarily dismissed Smithfield from this action on June 26, 2014 [DE-26].

On November 11, 2014, Plaintiff filed the Motion to Modify the Scheduling Order to Set a Date Certain for the Rule 30(b)(6) Deposition, to Extend the Time for the Naming of Experts, and for an Expediting Hearing [DE-28], on November 12, Plaintiff filed the Motion to Allow Amendment of Deemed Admissions or to Extend Time for Service of Responses to Requests for Admissions [DE-30], and on November 14, Plaintiff filed the Motion for Leave to Amend the Complaint [DE-32]. On December 23, 2014, Plaintiff filed her Motion to Compel Rule 30(b)(6) Deposition [DE-44] and Defendant filed its Motion for Protective Order [DE-47]. On February 10, 2015, Defendant filed its Motion to Compel [DE-53].

II. DISCUSSION

A. Plaintiff's Motion to Modify the Scheduling Order to Set a Date Certain for the Rule 30(b)(6) Deposition, to Extend the Time for the Naming of Experts, and for an Expediting Hearing [DE-28].

Plaintiff moves the court to order Defendant to make its 30(b)(6) designee available for deposition no later than January 16, 2015 and to extend the deadline in the Scheduling Order for expert designations to February 13, 2015, and for rebuttal expert designations to March 2, 2015. Pl.'s Mot. [DE-28] at 1-3. On November 21, 2014, Plaintiff filed a Notice of Service of Rule 26 Expert Witness Disclosures, indicating that Plaintiff served on Defendant her expert witness reports and designations pursuant to Rule 26(a)(2). [DE-36]. On December 19, 2014, Plaintiff filed a Notice of Service of Rule 26 Rebuttal Expert Witness Disclosures, indicating that Plaintiff served on Defendant her rebuttal expert witness reports and designations pursuant to Rule 26(a)(2). [DE-42]. As Plaintiff acknowledges in a later filing, her disclosure of experts subsequent to the filing of the instant motion renders it moot. [DE-51] at 2 n.2. Accordingly, Plaintiffs motion [DE-28] is denied as moot.

B. Plaintiff's Motion to Allow Amendment of Deemed Admissions or to Extend Time for Service of Responses to Requests for Admissions [DE-30].

Plaintiff moves the court to allow her to amend deemed responses made to three of Defendant's Request for Admissions ("RFA"). Pl.'s Mot. [DE-30] at 1. Plaintiff served responses to Defendant's RFAs nine days after the deadline to respond and admitted all but three of the requests. Id. at 1-2. Plaintiff contends that she could not admit or deny RFA Nos. 7, 8, and 9 due to a defect in the wording. Id. at 2. The requests at issue read as follows:

7. Admit that the Deceased had previously asked Smithfield supervisors for a respiratory to use while loading the sludge into the tanker trailers.
8. Admit that the Deceased was denied use of a respiratory to use while loading the sludge into the tanker trailers on the date of the incident.
9. Admit that the Deceased was not using a respiratory while loading the sludge into the tanker trailers on the date of the incident.

Def.'s RFA [DE-31-1] ¶¶ 7-9.

Plaintiff contends that the word "respiratory" appears to have been used in error and that deeming these requests as admitted does not serve the interest of justice or assist the jury because they are incomprehensible. Pl.'s Mem. [DE-31] at 5-6. Plaintiff asserts that assuming "respiratory" was intended to be "respirator, " then Plaintiff would deny RFA Nos. 7 and 8 and admit RFA No. 9. Id. at 5. Plaintiff asks the court to either allow amendment of the responses pursuant to Rule 36(b) or to find excusable neglect and deem Plaintiffs untimely responses timely filed. Id. at 5-9. Defendant admits that "respiratory" was intended to be "respirator, " Def.'s Resp. [DE-39] at 2 n.1, but argues that this typographical error provides no basis for allowing Plaintiff to amend the deemed responses or for a finding of excusable neglect. Id. at 2-7. Defendant argues that it would be prejudiced by the amendment because if RFA Nos. 7 and 8 are denied Defendant will need to conduct costly discovery to develop those facts. Def.'s Resp. [DE-39] at 3-4.

The Federal Rules provide for the amendment of a deemed admission where it "would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits." Fed.R.Civ.P. 36(b).

As review of the Rule 36(b) standard establishes, the decision to allow a party to withdraw its admission is quintessentially an equitable one, balancing the right to a full trial on the merits, including the presentation of all relevant evidence, with the necessity of justified reliance by parties on pre-trial procedures and finality as to issues deemed no longer in dispute. See generally Westmoreland v. Triumph Motorcycles Corp., 71 F.R.D. 192, 193 (D. Conn. 1976). In effecting this balance, considerable weight must be given the substantial interest of the parties in a complete trial on the merits. Nevertheless, "[t]here is force to the argument that [ ] courts should be cautious in permitting withdrawal ...

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