United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE
Matter is before the Court on the Objection to Magistrate
Judge F.A. Gossett, III’s Order (Filing No. 26)
(“Objection”) filed by Plaintiff Jabari Wright
(“Wright”). For the reasons discussed below, the
Objection will be overruled.
filed this action against Defendants Romona’s
Restaurant, Louis G. Godoy, and various unnamed defendants
(collectively “Defendants”) on July 20, 2015,
seeking injunctive relief for alleged violations of the
Americans with Disabilities Act of 1990, 42 U.S.C.
§§ 12101-12213 (“ADA”) and portions of
28 CFR § 36. (See Filing No. 1.) On October 2,
2015, Wright served Defendants with a set of requests for
admission pursuant to Federal Rule of Civil Procedure 36.
(Filing No. 19 ¶ 1.) On December 2, 2015, the Rule 26(d)
Report of the Parties’ Planning Conference was filed.
(See Filing No. 17.) The requests for admission were
not received by Wright as of January 18, 2016. (Filing No. 19
January 4, 2016, Wright filed a motion with Judge Gossett to
deem admitted those matters within the requests (Filing No.
19) (“Motion”). Defendants did not respond to the
Motion. (Filing No. 20.) On March 2, 2016, Judge Gossett
issued an order denying Wright’s Motion (Filing No. 20)
(“Order”). Because the requests were served prior
to the Parties’ Rule 26(f) planning conference, Judge
Gossett held that the requests were served prematurely under
Federal Rule of Civil Procedure 26(d) and refused to deem
them admitted. (Id.)
March 7, 2016, Wright filed a motion seeking reconsideration
of Judge Gossett’s Order (Filing No. 22), which Judge
Gossett denied in an order dated March 9, 2016 (Filing No.
24). On March 17, 2016, Wright filed this Objection to the
Order alleging that it was contrary to law. (Filing No. 26.)
party objects to a magistrate judge's order on a
nondispositive pretrial matter, a district court may set
aside any part of the order shown to be clearly erroneous or
contrary to law. Fed.R.Civ.P. 72(a); see 28 U.S.C.
§ 636(b)(1)(A). “A finding is ‘clearly
erroneous’ when although there is evidence to support
it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.” Chase v. Comm’r, 926 F.2d
737, 740 (8th Cir. 1991) (citing United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)). “An order
is contrary to law if it fails to apply or misapplies
relevant statutes, case law, or rules of procedure.”
Haviland v. Catholic Health Initiatives-Iowa, Corp.,
692 F.Supp.2d 1040 (S.D. Iowa 2010) (internal quotation marks
argues that Judge Gossett’s Order was contrary to law.
Wright notes that at least one case from another district has
held that, under Rule 36(a)(3), a party served with a request
for admission has a duty to respond or object to the request
within thirty days, even if that request is premature and
improper under Rule 26. (Filing No. 26-1 at ECF 2-3 (citing
Madison v. Harford Count, MD, 268 F.R.D. 563, 565
(D. Md. 2010)).) Wright argues that, according to
Madison, the Defendants were obligated to respond to
the requests, regardless of their prematurity, within thirty
days of the filing of the Rule 26(d) report of the
Parties’ planning conference; and, when Defendants did
not respond, the facts in the requests were deemed admitted.
Wright also notes that several districts have held that Rule
36(a)(3) operates extra-judicially and without the need for a
motion to establish the admission. (Filing No. 26-1 at ECF 4
(citing Broad. Music, Inc. v. L.S. Horne Inv. III,
LLC, WL 1812777 (N.D.Ga. 2015); Lesofski v.
Lash, 2013 WL 6076428 (D. Ariz. 2013); Smith v.
Pacific Bell Telephone Co., Inc., 662 F.Supp.2d 1199
(E.D. Cal. 2009)).)
also asks this Court to treat Rule 36 requests for admission
like Rule 34 discovery requests for purposes of the recently
codified Rule 26(d)(2). (See Filing No. 26-1 at
4-5.) Under Rule 26(d)(2), a party may deliver Rule 34
discovery requests twenty-one days after the summons and
complaint are served and prior to the Rule 26(f) planning
conference. See Fed R. Civ. P. 26. The requests are
considered served, and the timing requirements for responses
begin to run, at the first Rule 26(f) planning conference.
Fed R. Civ. P. 26(d)(2)(B).
may be correct that the reasoning behind Rule
26(d)(2)-“to facilitate focused discussion during the
Rule 26(f) conference”-may be served through the early
submission of Rule 36 requests for admission as well as Rule
34 discovery requests. It is noted, however, that although
Rule 36 requests for admission are subject to discovery
cutoff deadlines “[s]trictly speaking Rule 36 is not
a discovery procedure at all[.]” Finally, the
drafters of the 2015 amendment to Rule 26 could have included
Rule 36 requests for admission when describing options for
early discovery requests, but instead limited the scope of
such requests to those submitted under Rule 34. See
Fed. R. Civ. P. 26(d)(2).
these reasons, Judge Gossett’s Order is not clearly
erroneous nor contrary to law, and Wright’s Objection
will be overruled. Accordingly, IT IS ORDERED: Plaintiff
Jabari Wright’s Objection ...