Motion for Failure to Answer Requests for Admission

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT
CIVIL DEPARTMENT
CIVIL ACTION NO: 00-4988G

SUFFOLK, ss.

DAVID LEE MEGGETT
Plaintiff

VS.

NEW ENGLAND PATRIOTS LIMITED
PARTNERSHIP, BERTRAM ZARINS, M.D.,
MICHAEL G. WILSON, M.D., AND RONALD
O’NEIL

Memorandum of Law in Support of Plaintiff’s Motion for Summary Judgment, or in the Alternative, Thatrequests for Admission be Deemed Admitted

Plaintiff, David Meggett, by and through his undersigned attorneys, moves for judgment against the Defendant New England Patriots Limited Partnership, under M.G.L.c.150C, §2(a). As set forth below, this Court should grant judgment on behalf of the Plaintiff because over two years have passed and the Defendant has refused to respond to the core allegations in Plaintiff’s Complaint. In the alternative, this Court should issue an order deeming admitted Plaintiff’s Requests for Admission served on September 27, 2002. In further support, Plaintiff states:

I. Statement of Facts

Plaintiff filed this lawsuit on November 8, 2000 against Dr. Betram Zarins, Dr. Michael Wilson, Ronald O’Neil, and the New England Patriots (“NEPLP”), alleging negligence against the individual defendants and vicarious liability against NEPLE for the negligence of Dr. Zarins and Mr. O’Neil. (See Exhibit #1.) The Patriots sought to remove, first on diversity and then, in a subsequent motion, claiming federal preemption. (See Exhibits #2 and #3.) The U.S. District Court rejected both grounds and the case was remanded to this Court. (See Exhibit #4.) Before the case was remanded, NEPLP filed an answer in federal court, refusing to admit or deny the allegations made against it. (See Exhibit #5.) Over two years after it was served with process, NEPLP has yet to file an answer to Plaintiff’s Complaint in this case.

The NEPLP did proceed, however, to serve interrogatories and requests for production of documents to seek the details of Plaintiff’s case on May 7, 2001. (See Exhibit #6.) NEPLP took Plaintiff’s deposition on January 18, 2002. (See Exhibit #7.) On September 10, 2002, almost two years after this case was filed, the NEPLP filed a motion for summary judgment alleging facts that were available to it for more than 22 months. (See Exhibit #8.) Yet Defendant still refused to answer Plaintiff’s complaint and discovery.

Plaintiff filed requests for admission on September 27, 2002, and Defendant again refused to answer the central allegations in Plaintiff’s Complaint, this time alleging that it believed this case is the subject of mandatory arbitration and, in spite of the fact that this contention was summarily rejected by the U.S. District Court 20 months ago, it was not required to answer. (See Exhibit #4 and #9.) It has also refused to answer interrogatories and requests for production of documents that were served on October 2, 2002. Incredibly, NEPLP does not feel similarly constrained, serving requests for admission on October 2, 2002, that were timely answered by Plaintiff. (See Exhibit #10.)

II. Summary Judgment Standard

Summary judgment is appropriate if the moving party shows that “there is no genuine issue of material fact and that [he] is entitled to judgment as a matter of law.” Mass. R. Civ. P., Rule 56(c); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976). The motions judge is required to look at “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any” to determine if summary judgment is proper. Id. The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles him or her to judgment as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991); Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The nonmoving party cannot defeat the motion for summary judgment by resting on its pleadings and mere assertions of disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Establishing the absence of a triable issue requires the nonmoving party to respond by alleging specific facts demonstrating the existence of a genuine issue of material fact. Pederson v. Time, Inc., supra at 17.

III. Defendant Has Refused to Participate in This Lawsuit

With the exception of offensive discovery directed at Plaintiff such as requests for admission, depositions, requests for production of documents and interrogatories, NEPLP has refused to participate in this case. They have not filed an answer, have refused to admit or denyrequests for admission, and have failed to answer interrogatories and requests for production of documents.

A. Defendant Has Not Answered Plaintiff’s Complaint

Defendant filed an answer in federal court but has failed to answer Plaintiff’s Complaint more than two years after this case was filed. The answer filed by NEPLP in federal court is not much better than its refusal to answer in state court. It refuses to admit or deny any substantive allegation in the Plaintiff’s Complaint. (See Exhibit #5.) Accordingly, considering either the unanswered claim in this Court or NEPLP’s federal court response, it has refused to respond to Plaintiff’s Complaint for over two years. Accordingly, these averments should be deemed admitted.

B. Plaintiff’s Request for Admission Should Be Deemed Admitted

1. NEPLP has flounted Mass. R. Civ. P. Rule 36

Requests for Admission are deemed admitted unless the party to whom the requests are directed affirmatively admits or denies the request within 30 days after service of the request of being served. Mass. R. Civ. P., Rule 36. Pursuant to Rule 36(a), the respondent, in answering each response separately, must do one of three things if the request is not admitted: (1) deny the matter, if the denial fairly meets the substance of the request; or (2) set forth in detail why the answerer cannot truthfully admit or deny the matter; or (3) object to the request, giving reasons therefore. Id. An answering party may only give lack of information or knowledge as a reason for failing to admit or deny if it states that it has made reasonable inquiry and that the information known or readily obtainable by it is insufficient to enable it to admit or deny. Id; Sabian v. Gentle Movers, 1997 Mass. App. Div. 117, 120 (1997). NEPLP has willfully ignored this requirement by making no effort whatsoever to inquire into the merits of this lawsuit.

2. There is no good faith reason for NEPLP noncompliance with Rule 36

The Patriots have not made a reasonable inquiry into the facts and circumstance of this lawsuit, contending that their motion for summary judgment should be heard before they make the effort to investigate Plaintiff’s claims. This is ludicrous. If this were the case, every defendant would wait a few years before investigating a lawsuit because they might have a valid motion for summary judgment.

Even assuming that such a tactic could be theoretically employed at the outset of a case, the time has long passed for this Defendant to rely on this defense. PEPLP’s motion for summary judgment is based on facts that it knew 22 months before the motion was filed. (See Exhibit #8 which demonstrates that 27 months ago, PEPLP’s knew all of the facts upon which bases its motion for summary judgment.) Should a Plaintiff be required to wait over two years before a defendant will answer a claim because the defendant believes that it has a valid motion for summary judgment based on facts that it knew at the time the case was filed?

3. The Court may deem these facts admitted

This court has the power to sanction a defendant by deeming admitted Plaintiff’s Request for Admission. The trial court has the authority to order a matter admitted when it has been demonstrated that a party has intentionally disregarded the obligations imposed by Rule 36. Asea, Inc. v. Southern Pacific Transp. Co., 669 F.2d 1242 (9^th Cir. 1981).

Here, such a sanction is appropriate. Defendant has willfully ignored the plain language of Rule 36 that an “answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny….” The Rule further states that a matter may be deemed admitted if the answer “does not comply with the requirements of this rule.”

It is undisputed that failure to answer or object to a proper request for admission is itself an admission: the Rule itself so states. It is also clear that an evasive denial, one that does not “specifically deny the matter,” or a response that does not set forth “in detail” the reasons why the answering party cannot truthfully admit or deny the matter, may be deemed an admission. See, e.g., Havenfiled Corp. v. H&R Block, Inc, 67 F.R.D. 93, 96-97 (W.D.Mo. 1973). Because NEPLP’s response does not comply with the letter or the spirit of Rule 36, this court may, in its discretion, deem the matter admitted.

4. The Court should exercise its discretion in this case

Failure to deem admitted these requests for admission would leave Plaintiff substantially prejudiced. Trial is set for November 8, 2003. The discovery deadline has been extended from December 28, 2002 to June 1, 2003. Defendant’s motion for summary judgment is scheduled for April 23, 2003, leaving Plaintiff little time after this hearing to conduct and follow-up on discovery against the Patriots in a meaningful way. Moreover, Plaintiff has been prejudiced because discovery against the Patriots might yield meaningful evidence on the other defendants. Defendant’s conduct has also been worthy of such a sanction because they have blithely and willfully ignored their discovery obligations in a way that has substantially impeded Plaintiff’s ability to conduct meaningful discovery. Callous disregard of discovery responsibilities cannot be condoned. Accordingly, these requests for admission should be deemed admitted.

C. Defendant Refuses to Answer Other Discovery

Plaintiff propounded interrogatories and document requests on October 2, 2002, in spite of repeated request to receive these answers (see Exhibits #11, #12, #13, #14, #15, and #16) and assurances that he would receive responses. (See Exhibit 17), NEPLP, consistent with its handling of the rest of this case, has ignored Plaintiff’s discovery requests that are now four months past due.¹

IV. Summary Judgment is Appropriate

Plaintiff has not denied the allegations in Plaintiff’s Complaint, which makes out a prima facie case against it.

WEREFORE, Plaintiff requests that this Honorable Court grant summary judgment on its behalf and bifurcate this trial for damages against the New England Patriots Limited Partnership. In the alternative, Plaintiff requests that this Court deem admitted Plaintiff’s September 27, 2002, Requests for Admission. Plaintiff further seeks as a sanction attorneys’ fees for the filing of this motion and its efforts to seek compliance with Massachusetts’s discovery rules.

¹ Plaintiff received an e-mail from NEPLP’s counsel indicating that these responses were forthcoming the day before this motion was filed.

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