United States District Court, D. Idaho
FRED D. HERMANN, Plaintiff,
STIMSON LUMBER COMPANY, Defendant.
MEMORANDUM DECISION AND ORDER
C. Nye Chief U.S. District Court Judge
before the Court is Defendant Stimson Lumber Company's
(“Stimson”) Motion to Strike Plaintiff's
Response to Defendant's First Request for Admissions.
Dkt. 27. Having reviewed the record and briefs, the Court
finds that the facts and legal arguments are adequately
presented. Accordingly, the Court finds that the decisional
process would not be significantly aided by oral argument,
the Court will decide the motions without oral argument.
Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). Based on the
following, the Court finds good cause to DENY Stimson's
October 21, 2018, Fred Hermann filed his Complaint against
Stimson alleging both federal and state age discrimination
causes of action. Hermann claims that Stimson unlawfully
terminated him and replaced him with someone more than 20
years younger. Stimson counters that it fired Hermann due to
his inappropriate behavior.
February 21, 2019, Stimson served its First Request for
Admissions (“RFA”) on Hermann. Herman timely
responded on March 18, 2019, but the responding document was
unsigned by either Hermann or his attorney, Robin Haynes.
Four months later, on July 22, 2019, Stimson made a formal
demand that Hermann submit a signed response to its first
RFA, by August 2, 2019. Haynes responded via email on August
16, 2019, with Hermann's amended responses, and stated
that a more formal, signed response would be served shortly
thereafter. Despite this assurance, neither Hermann nor his
attorney submitted a signed response to the first RFA.
the issue concerning the first RFA was ongoing, on August 12,
2019, Haynes filed a motion to withdraw as Hermann's
attorney of record. Dkt. 21. The Court granted that motion on
September 11, 2019. Dkt. 25. The following day, Stimson filed
the pending motion, asking the Court to deem its requests in
the RFA admitted, pursuant to Rules 26(g) and 36 of the
Federal Rules of Civil Procedure.
on September 24, 2019, the Court held all deadlines for
pending and dispositive motions in abeyance until Hermann
notified the Court in writing of his intent to either find
another attorney to represent him or represent himself. Dkt.
29. On October 4, 2019, Hermann notified the Court that he
would proceed pro se. Dkt. 30. The Court then reset the
schedules and deadlines for pending and dispositive motions.
Hermann did not respond to this pending motion.
26(g) states that every disclosure and discovery request,
response, and objection must be signed “by at least one
attorney of record in the attorney's own name- or by the
party personally, if unrepresented . . . .”
Fed.R.Civ.P. 26(g). Further, that signature certifies that
the signee has reasonably inquired as to the contents of the
document and believes that it is complete, consistent with
applicable rules and law, is not interposed for an improper
purpose, and is not unreasonable or unduly burdensome.
Id. If the document is not signed, “the court
must strike it unless a signature is promptly supplied after
the omission is called to the attorney's or party's
extends these protections to requests for admission. This
rule states that when a party has served on another party a
written request to admit the truth of a matter, that matter
“is deemed admitted unless, within 30 days after being
served, the party to whom the request is directed 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). A court may order a response time
different than the thirty days stated in Rule 36.
appears that Hermann's failure to properly respond to
Stimson's RFA coincided with Haynes withdrawing as
Hermann's attorney. There is a concern that, in the
process of Haynes' withdrawal and Hermann's
subsequent undertaking of his own case, Hermann may have
overlooked his duty to respond to the RFA. Though a pro se
plaintiff must still abide by the Federal Rules of Civil
Procedure, Ghazali v. Moran, 46 F.3d 52, 54 (9th
Cir. 1995), the Court is hesitant to deem Stimson's
requests admitted-a rather harsh result- based on a
procedural error, see Eitel v. McCool, 782 F.2d
1470, 1472 (9th Cir. 1986) (stating there is a “strong
policy underlying the Federal Rules of Civil Procedure
favoring decisions on the merits”). As such, pursuant
to Rule 36(a)(3), at this time the Court will not deem
Stimson's RFA admitted but will order Hermann to
appropriately respond to Stimson's RFA and sign the
response document. Hermann must do so within fourteen
(14) days of this order. Failure to do so will result in
Stimson's RFA deemed admitted.