United States District Court, E.D. North Carolina, Western Division
THE UNITED STATES OF AMERICA, for the use of GRAYBAR ELECTRIC COMPANY, INC., Plaintiff,
TEAM CONSTRUCTION, LLC, JARROD CLINE, individually and d/b/a CLINE ELECTRIC, and WESTERN SURETY COMPANY, Defendants.
C. DEVER, III, Chief United States District Judge
TEAM Construction, LLC ("TEAM') and Western Surety
Company's ("Western") moved for partial summary
judgment [D.E. 48], and plaintiff Jarrod Cline's
("Cline") moved to withdraw admissions under Rule
36(b) of the Federal Rules of Civil Procedure [D.E. 53]. As
explained below, the court grants Cline's motion to
withdraw his admissions and grants in part and denies in part
TEAM and Western's motion for partial summary judgment.
a general contractor in Jacksonville, North Carolina.
TEAM's Stmt. Material Facts [D.E. 50] ¶ 1;
Cline's Stmt. Material Facts [D.E. 54] ¶ 1. The
Department of the Navy contracted with TEAM to serve as the
general contractor to perform renovations, construction, and
improvements on a project. TEAM'S Stmt. Material Facts
¶¶ 5-6; Cline's Stmt. Material Facts
¶¶ 5-6. In turn, TEAM contracted with Jarrod Cline
("Cline") to act as a subcontractor for TEAM.
TEAM'S Stmt. Material Facts ¶¶ 7-8; Cline's
Stmt. Material Facts ¶¶ 7-8. Cline conducts
business under the name of Cline Electric and provides
electrical-related services as an electrical contractor.
TEAM'S Stmt. Material Facts ¶¶ 3-4;
Cline's Stmt. Material Facts ¶¶ 3-4.
For the electrical supplies, TEAM and Cline contracted with
Graybar Electric Company, Inc. ("Graybar"). Compl.
[D.E. 1] ¶¶ 8, 10, 20; Cline's Ans. [D.E. 14]
¶¶ 8, 10, 20; TEAM'S Ans. [D.E. 16]
¶¶ 8, 10, 20. Western Surely Company
("Western") issued a bond ensuring payment by TEAM
and its subcontractors of claims by persons furnishing labor
and materials for the project. Compl. ¶ 7; Cline's
Ans. ¶ 7; TEAM'S Ans. ¶ 7.
November 12, 2014, Graybar sued TEAM, Western, and Cline to
recover money owed for electrical-related materials it
provided for the project. See [D.E. 1]. TEAM answered the
complaint and asserted crossclaims against Cline for breach
of contract, fraud, breach of express warranty, breach of
implied warranty, and contractual indemnification. See[D.E.
14] 12-26. Cline answered the complaint, [D .E. 12], answered
TEAM's crossclaim, and asserted his own crossclaims
against TEAM for breach of contract, fraud, and quantum
meruit and against both TEAM and Western for violations of
the Miller Act. See [D.E. 16].
August 28, 2015, Graybar, TEAM, and Western jointly moved to
dismiss Graybar's claims against TEAM, Western, and Cline
[D.E. 27]. On September 3, 2015, the court granted the
motion, leaving just TEAM'S and Cline's crossclaims.
See [D.E. 29].
March 31, 2015, the court entered a scheduling order
requiring the parties to complete discovery by December 30,
2015, and file dispositive motions by January 29, 2016 [D.E.
21]. On July 21, 2015, Cline's attorney moved to withdraw
[D.E. 24]. On August 24, 2015, the court granted the motion
[D.E. 26]. In the order, the court stated:
All pleadings and correspondence for Defendant Jarrod Cline,
individually and d/b/a Cline Electric shall be addressed as
214 Cedar Lane, Newport, NC 28570, unless another address is
provided by Defendant Jarrod Cline, individually and d/b/a
Id at 2.
November 25, 2015-with a little more than a month remaining
in the discovery period-TEAM served interrogatories and
requests for production of documents on Cline at the address
listed in the court's order. See 2d Stanfield Aff. [D.E.
55-1] ¶ 3. On November 30, 2015, TEAM served request for
admissions on Cline at the address listed in the court's
order. See id.; TEAM'S Reqs. for Admis. [D.E. 51-2]. The
request for admissions stated, in part, "The Admissions
are to be fully answered, under oath, in writing within
thirty (30) days afer service in accordance with Rules 26 and
36 of the Federal Rules of Civil Procedure." TEAM'S
Reqs. for Admis. at 2.
December 8, 2015, TEAM'S attorney received a voicemail
from Jeffrey S. Jonap, an attorney who said Cline had
contacted him and that he intended to represent
Cline in this action. 2d Stanfield Aff. ¶ 4. Although
TEAM does not elaborate on the voicemail, TEAM does say that
Jonap did not inquire about any written discovery requests
sent to Cline. Id.
December 30, 2015, TEAM'S counsel and Jonap-who had not
yet filed a notice of appearance as Cline's
attorney-discussed changes to a consent order. See
Id. ¶ 6. Among the changes, Jonap inserted an
address for Cline in Kentucky. IcL Upon seeing the change,
TEAM'S counsel called Jonap and informed him that
Cline's address of record with the court listed a mailing
address in Newport, North Carolina. Id. TEAM'S
counsel also told Jonap that the court's earlier order
required all filings to be served on Cline at the Newport,
North Carolina address. Id. Neither Cline nor Jonap
contacted the court to change Cline's address.
Id. Moreover, TEAM'S attorney did not mention
that TEAM had sent discovery requests to Cline's North
did not timely respond to the interrogatories, requests for
documents, or the request for admissions. TEAM never moved to
compel responses. On January 29, 2016, TEAM and Western moved
for partial summary judgment based largely on the facts
deemed admitted due to Cline's failure to respond to the
request for admissions. See [D.E. 37].
April 27, 2016, the parties attended a court-ordered
mediation. See Stanfield Aff. ¶ 9. Jonap and another
attorney, neither of whom had filed a notice of appearance,
accompanied Cline and presented his case. Id. The
attorneys did not discuss any outstanding discovery requests.
See id On May 9, 2016, the court docketed a letter from Jonap
dated May 5, 2016, "to serve as an address change"
for Cline. [D.E. 42]. The letter changed Cline's address
to one in Kentucky. Id.
2, 2016, attorney Davies filed a notice of appearance for
Cline [D.E. 43], That same day, Cline (through Davies) moved
for leave to file an opposition to TEAM and Western's
motion for summary judgment and to withdraw Cline's
deemed admissions under Federal Rule of Civil Procedure 36(b)
[D.E. 44]. TEAM had sent the summary-judgment motion to
Cline's North Carolina address, as required by the
court's earlier order, but Cline had moved and not
updated his address with the court. See Id. ¶
4. Although other items sent from TEAM to Cline had been
forwarded to Cline's new address, the summary-judgment
motion and request for admissions were not. See Id.
¶ 5. Cline was unaware of the existence of the
summary-judgment motion and request for admissions until
approximately May 12, 2016. See Id. ¶¶ 5,
TEAM and Western would not consent to Cline filing a response
to the motion. See Id. ¶ 6. Cline requested
leave to file a response to the summary-judgment motion and
for 14 days within which to respond to the request for
admissions. See id. ¶¶ 6-7.
September 20, 2016, the court dismissed TEAM and
Western's motion for summary judgment without prejudice
for failure to conform with Local Civil Rule 56.1 [D.E. 47].
The court denied as moot Cline's motion for leave to file
a response in opposition, but did not separately address his
request to withdraw his admissions. Id.
October 3, 2016, TEAM and Western refiled their motion for
summary judgment [D.E. 48], along with a supporting
memorandum [D.E. 49], a statement of material facts [D.E.
50], and an appendix [D.E. 51]. On October 27, 2016, Cline
moved under Rule 36(b) to withdraw his admissions [D.E. 53].
Cline asks the court to allow him withdraw his admissions and
to give him 14 days to respond to TEAM'S request for
admissions. Cline's motion also responds in opposition to
TEAM and Western's summary-judgment motion. See
Cline's admissions feature prominently in TEAM and
Western's summary-judgment motion, the court first
considers Cline's motion to withdraw his admissions. When
a party receives a request for admissions, a matter is
admitted "unless, within 30 days after being served,
" that party "serves on the requesting party a
written answer or objection addressed to the matter and
signed by the party or its attorney." Fed.R.Civ.P.
36(a)(3). "The purpose of such admissions is to narrow
the array of issues before the court, and thus expedite both
the discovery process and the resolution of the
litigation." Adventis. Inc. v. Consol. Prop.
Holdings. Inc., 124 Fed.Appx. 169, 172 (4th Cir. 2005)
admitted under Rule 36(a), the matter "is conclusively
established unless the court, on motion, permits the
admission to be withdrawn or amended" under Rule 36(b).
Fed.R.Civ.P. 3 6(b). Rule 3 6(b) contains a two-part test
concerning the withdrawal or amendment of an admission. It
[T]he court may permit withdrawal or amendment if 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 ...