Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-01254-Gl\/IS Document 77 Filed 12/07/2005 Page 1 of 2
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December 7, 2005
VIA HAND DELIVERY AND CM/ECF
The Honorable Gregory Mr Sleet
United States District Court
District of Delaware
844 King Street
J. Caleb Boggs Federal Building ·· Loclcbox l9
Wilmington, DE 19801
Re: Estate of Harg Smith, III, et al. v. Wilmington Police Degt., et. al,
C.A. N0. 04—1254-GMS D
Dear Judge Sleet:
This letter is in response to p1aintiffs’ Motion For Order That Defendant John Ciritelia
Admitted All Requests For Admissions (the "Motion"), tiled with the Court on November 23,
2005. I am uncertain whether plaintiffs’ request qualifies as a discovery motion under paragraph
2(a) of the Scheduling Order and thus, under the terms of that paragraph, ought to be resolved by
telephone conference. Out of an abundance of caution, therefore, defendant Ciritella submits
this two page letter.
On September 24, 2005, plaintiffs served by email on the three individual defendants in
this action identical 63 identical requests for admission. On October, 25, 2005 plaintiffs kindly
agreed to grant an extension to the individual defendants to respond to those requests, and on
October 31, 2005, Defendants Kurten and Dempsey both served their responses, which contained
several denials With minor variations, the responses of those defendants were nearly identical.
Although not obligated to do so, those defendants explained the reasons for their denials when
they felt it would be helpful to do so. The defendants had prepared a response on behalf of
Officer Ciritella, but it was not served at that time due to a rniscommunication involving
defendants’ counsel. Given the earlier email agreement to extend the time for the individual
defendants to respond and the response of two of the three individual defendants, plaintiffs knew,
or should have known, that defendant Ciritella intended to respond to the requests. Nonetheless,
we first learned of the inadvertent failure to serve Officer Ciritella’s response when plaintiffs
tiled the instant motion. Between October 31 (when two of the individual defendants served
their responses) and November 23, 2005, (when plaintiffs tiled the motion), plaintiffs made no
mention whatsoever that they had not received a response from defendant even though nearly
two dozen emails were exchanged between the parties during that period. Plaintiffs motion
should therefore be denied.
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Case 1:04-cv-01254-G|\/IS Document 77 Filed 12/07/2005 Page 2 of 2
The Honorable Gregory M. Sieet
December 7, 2005
Page 2
Alternatively, defendant respectfully request to withdraw all deemed admissions.; See
Fer). R. Civ. P. 36(b) (providing for the withdrawal or amendment of admissions). "R.ule 36(la)
emphasizes ‘the importance of having an action resolved on the merits, while at the same time
assuring each party that justified reliance on an admission in preparation for trial will not
prejudice him.’““ Coco-Cola Bottling Co. v. The Cocc1~Cola Co., 123 F.R.D. 97, 103 (D. Del.
1988) (quoting Advisory Committee Notes to the 1970 Amendments of Rule 36). Plaintiffs bear
the burden of showing reliance on the deemed admissions resulting in “special difficulties" in
obtaining the evidence needed to prove the matters deemed admitted. S/coczylos v. Atl. Credit
and Fin., Inc., 2002 WL 55298, at *3 (E1). Pa. Jan. 15, 2002) (quoting Revlon Consumer
Products Corp v. L’Oreo! SA , 170 F. R. D. 39l, 402 (D. Del. 1997)). Plaintiffs have not made
such a showing, nor could they. Discovery is still in its early stages, with only two depositions ;
having been taken, both of which were taken before service of the Requests for Admission.
Indeed, discovery cutoff is not until May .3}, 2006, and the depositions of the individual
defendants have not even been scheduled yet., Moreover, plaintiffs could not have relied upon
any deemed admissions here because "the bulk of the admissions sought were directly contrary
to facts that formed the basis of Plaintiffs’ complaint[,]’” and which generally were denied in
Oflicer Cir·itella’s answer to the complaint. Skocrjylas, 2002 WL 55298, at *4. For these reasons
the case against defendant iritella should be resolved on its merits and the requests addressed to
him should not be deemed admitted.
if the Court so permits, the Defendants are prepared to serve the response previously
prepared on behalf of Officer Ciritella. The undersigned is available at the convenience ofthe
Court should Your Honor have any questions regarding the foregoing.
Respectfully Gus,
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JAP/lll Q; A. Parkins, Jr. (#859)
cc: Clerk of the Court
Kester I.I·I. Crosse, Esquire (By Hand Delivery)
Anne T. Sutton, Esquire (By U.S. Regular Mail)
Rosemarie Tassone, Esquire (By U.S. Regular Mail)
I The Court may treat this argument as a motion to withdraw admissions pursuant to Rule
36(la). See US v. Brcmella, 972 F. Supp. 294, 300—0l (D.N..i. 1997).
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