Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02199-MKS-OES MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants. MOTION TO DEEM ADMISSIONS IN ANSWER AND RESPONSES TO REQUESTS FOR ADMISSIONS AS INCONTROVERTIBLE JUDICIAL ADMISSIONS

The plaintiffs, Michael E. Clawson, and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Motion to Deem Admissions in Answer and Responses to Requests for Admissions as Incontrovertible Judicial Admissions, and in support thereof, state as follows: CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1 Plaintiffs raised the issue of using admissions from the answer as judicial admissions in the Scheduling Order of May 9, 2002, signed by Magistrate Judge Robb, on page 13 and in the appendix. Plaintiffs again raised the issue of using admissions from the answer and from responses to requests for admissions in the Final Pre Trial Order of September 8, 2003, signed by Magistrate Judge Schlatter, at page 14. Plaintiff also sent a letter on April 8, 2005, proposing

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stipulations from the Final Pre-Trial Order and suggesting that admissions from the answer and requests for admissions be stipulated to. Exhibit 1. Plaintiffs informed defense counsel on July 7, 2005, that they intended to file a motion to deem admissions in the Answer and in response to requests for admissions to be judicial admissions. Plaintiffs sent a copy of the motion to defendants on July 12, 2005, and a copy of the admissions was sent just after the close of business on July 13, 2005. Despite plaintiffs having raised the issue over the course of the litigation, defense counsel has asserted that insufficient conferral has occurred. Defense counsel asserted that it was inadequate because plaintiffs did not raise the issue of a motion until July 7, 2005, and did not provide the list, which comes from the answer and responses to requests for admissions, until July 13, 2005. Defendants' position on this motion, other than the conferral issue is not entirely clear, as explained in plaintiffs' letter of July 15, 2005. Exhibit 2. Defense counsel has declined to provide additional insight. Exhibit 3. However, in a letter dated July 15, 2005, defendants stated they agree in principle that admissions in the answer and requests for admissions are judicial admissions and incontrovertible. Exhibit 4. The disputes appear to be over which statements constitute "admissions," on whether relevance must be determined in advance of finding the statements to be "judicial admissions," and whether the statements must be reorganized before they may be deemed "judicial admissions." It thus appears that defendants only oppose the merits of the motion in part, but it will remain unclear how much is disputed until defendants file their response brief.

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REQUESTED RELIEF 1. Attached are lists of all of the defendants' admissions made in their answer

(Exhibit 5) or in response to requests for admissions (Exhibit 6). The responses to the requests for admissions are attached as follows: Defendant's Amended Responses to Plaintiffs' First Set of Requests for Admission (09/26/02) (Exhibit 7), Defendant's Responses to Plaintiffs' Second Set of Requests for Admission (10/15/02) (Exhibit 8), and Defendant Mountain Coal Company's Second Amended Responses to Plaintiffs' First Set of Requests for Admission (01/13/03) (Exhibit 9). 2. Plaintiffs request that the court deem the admissions set forth in Exhibits 5 and 6

to be judicial admissions, and thus incontrovertible by defendants. "Judicial admissions are formal concessions in the pleadings, or stipulations by a party or its counsel, that are binding upon the party making them. They may not be controverted at trial or on appeal. Indeed, they are `not evidence at all but rather have the effect of withdrawing a fact from contention.'" Keller v. United States, 58 F.3d 1194, 1199 FN 8 (7th Cir. 1995). Once the admissions listed in Exhibits 1 and 2 are determined to be "judicial admissions," no proof would be necessary to establish them as facts at trial. As described below, admissions in an answer and responses to requests for admissions are "judicial admissions." Therefore, it is appropriate for this court to deem them to be judicial admissions and to submit them to the jury, along with stipulations, as being established fact. 3. Admissions made in the answer to a complaint are judicial admissions and are

conclusively established. Crest Hill Land Dev., LLC v. Joliet, 396 F.3d 801, 805 (7th Cir. 2005); United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 748 (D.C. Cir. 1998); Western

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World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 122 (2nd Cir. 1990); Ahgazali v. Secretary of Health and Human Servs., 867 F.2d 921, 927 (6th Cir. 1989). Admissions in the answer are binding on the admitting party, even if the admitting party later produces contrary evidence. Missouri Housing Dev. Comm'n v. Brice, 919 F.2d 1306, 1314 (8th Cir. 1990). 4. Concluding that admissions made in the answer are "judicial admissions" is

logical based upon the language of Fed. R. Civ. P. 8(b). Rule 8(b) clearly provides only three acceptable responses to averments in the complaint: "admit;" "deny;" or "without sufficient knowledge or information to form a belief as to the truth." If admissions in the answer were not "judicial admissions," it would defeat the purposes of limiting the defendant to three responses. Litigation would be unnecessarily expanded, opening up areas that should be foreclosed. This court should deem defendants' answers to be judicial admissions that are conclusively established, and submit them to the jury as such. 5. By the plain terms of Fed. R. Civ. P. 36(b), an admission to a request for

admission is a judicial admission and incontrovertible. "Any matter admitted under this rule is conclusively established . . ." Fed. Rule Civ. P. 36(b). The court should enforce the plain language of the rule and hold defendants to the admissions they made in response to the requests for admissions. 6. The authorities interpreting the rule agree that an admission under rule 36 is a

judicial admission and is conclusively established. Airco Indust. Gases, Inc. Division of BOC Group Inc. v. Teamsters Health and Welfare Fund of Philadelphia and Vicinity, 850 F.2d 1028, 1035-37 (3rd Cir. 1988) (a rule 36 admission is "an unassailable statement of fact that narrows the triable issues in the case." p.1037) citing 1970 Advisory Cmmt. Notes to Subsection (b) and

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6 C. Wright & A. Miller Federal Practice and Procedure: Civil § 2264, at 742-43. "The purpose of the rule [36] is to reduce the costs of litigation by eliminating the necessity of proving facts that are not in substantial dispute, to narrow the scope of disputed issues, and to facilitate the presentation of cases to the trier of fact." T. Rowe Price Small Cap Value Fund, Inc. v. Oppenheimer & Co., Inc., 174 F.R.D. 38, 42 (S.D. N.Y. 1997). "For Rule 36 to be effective in this regard, litigants must be able to rely on the fact that matters admitted will not later be subject to challenge." Carney v. Internal Revenue Service, 258 F.3d 415, 419 (5th Cir. 2001). "Absent a court order permitting withdrawal or amendment of [a party's] constructive admissions, they are `conclusively established.' Thus, unless [the party's] admissions are withdrawn or amended, his defenses and counterclaim can proceed, if at all, only in a manner consistent with the admissions." ADM Agri-Indus., Ltd. v. Harvey, 200 F.R.D. 467, 470 (M.D. Ala. 2001) (internal citation omitted). This court should follow the plain language of the rule and the persuasive interpretation of the rule and find that defendants are bound to their admissions. 7. Based on conferral with defense counsel, there may be some dispute over what

portion of defendants' response constitutes the judicial admission; although this should be reasonably clear. For example, defendants have asserted that in regard to requests for admissions, the whole request and response must be presented, including defendants' objections and non-responsive narrations. This is incorrect. Both rule 8(b) and rule 36 have similar requirements. Both require the party to admit, deny, or claim inability to admit or deny, although rule 36 allows for objections. Rule 8(b) specifically allows only an admissions, denial, or claim of lack of knowledge or information sufficient to form a belief, and any other answers are inappropriate. King Vision Pay Per View v. J.C. Dimitri's Restaurant, 180 F.R.D. 332, 333 (N.D.

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Ill. 1998); State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278-280 (N.D. Ill. 2001). Specifically, such common responses as "states a legal conclusion" and "the document speaks for itself" are prohibited. State Farm, 199 F.R.D. at 278-280. The plain language of rule 36 is similarly strict. Both rule 8(b) and rule 36 have the similar requirement that if a party can only give a qualified admission the party must admit so much as is true and qualify or deny the remainder. When such an answer is given, it is clear that only the part the parties agree on, the "so much as is true," constitutes the binding judicial admission. Any remaining portion of the answer or response is simply gratuitous narration which assists in setting the parameters of the dispute; it does not alter or add to the judicial admission. However, if the court disagrees with this view, plaintiffs would rather have the entire answer than no judicial admissions at all. Plaintiffs only included the actual judicial admissions within the answer and within the responses to requests for admissions in the attachments proposing the judicial admissions to be accepted. It is these judicial admissions that are binding on the parties. CONCLUSION The court's task in this matter is fairly simple. The law on this issue is straightforward and undeniable. Admissions made in an answer are judicial admissions and are incontrovertible. Admissions made in response to a request for admission are likewise judicial admissions and incontrovertible. Exhibits 5 and 6 contain the judicial admissions made by defendants in their answer and in response to requests for admissions. The court need only apply the law and deem these admissions to be judicial admissions and "unassailable" by defendants. Just like judicial admissions in the form of stipulations, these judicial admissions should be submitted to the jury

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in order to remove the necessity of submitting evidence on the issue, to streamline the judicial process, and to improve judicial efficiency. This is the relief plaintiffs are requesting. RESPECTFULLY SUBMITTED this 15th day of July, 2005. KILLIAN, GUTHRO & JENSEN, P.C.

s/Damon Davis J. Keith Killian Joanna C. Jensen Damon Davis Post Office Box 4859 Grand Junction, Colorado 81502 Telephone: (970) 241-0707 ATTORNEYS FOR PLAINTIFFS

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on July 15, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mr. Jared Dillon 35404 Back River Road Hotchkiss, CO 81419 Mail

Mail

s/Damon Davis Damon Davis Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

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