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ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CRAIG BEARDSLEY AND GINA

BEARDSLEY,

Plaintiffs,

v.

ALL AMERICAN HEATING, INC., et al.,

Defendants.

No. C05-1962P

ORDER ON PLAINTIFFS’ FRCP 36

MOTION TO DEEM REQUESTS FOR

ADMISSION ADMITTED

Plaintiffs have filed a motion titled “Plaintiffs’ FRCP 36 motion to deem requests for admission

admitted.” (Dkt. No. 32). Plaintiffs ask the Court to issue an order holding that Defendants All

American Hearing, Inc. and Toby Cyr have admitted each request for admission (RFA) propounded

on them on April 28, 2006, due to Defendants’ failure to respond to the requests within 30 days. 

Having considered the papers and pleadings submitted by the parties, the Court finds and ORDERS as

follows: 

(1) Requests for admission are authorized under Fed. R. Civ. P. 36. Rule 36(a) provides,

in relevant part:

[A] matter is admitted unless, within 30 days after service of the request, or within such shorter

or longer time as the court may allow or as the parties may agree to in writing, subject to Rule

29, the party to whom the request is directed serves upon the party requesting the admission a

written answer or objection addressed to the matter, signed by the party or the party’s

attorney.

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1

 Plaintiffs suggest that Rule 36(a) provides a mechanism for seeking a Court order to deem a

request for admission admitted based on the failure of the other party to respond. Plaintiffs note that

Rule 36(a) provides that “[t]he party who has requested the admissions may move to determine the

sufficiency of the answers or objections.” Here, however, Defendants have filed no answers or

objections to Plaintiffs’ RFAs – they simply have not responded at all. 

ORDER - 2

Courts in this circuit have held that Rule 36(a) does not require court intervention to establish that an

unanswered RFA is deemed admitted. See, e.g., Cook v. Allstate Ins. Co., 337 F. Supp.2d 1206,

1210 (C.D. Cal. 2004) (“No motion to establish the admissions is needed because Rule 36 is selfexecuting”); FTC v. Medicor, LLC, 217 F. Supp. 2d 1048, 1053 (C.D. Cal. 2002) (same). The court

in American Technology Corp. v. Mah, 174 F.R.D. 687 (D. Nev. 1997), addressed this issue at some

length, holding:

Since unanswered requests for admission are automatically deemed judicially admitted under

Rule 36(a), no court intervention is required. The rule is explicit that a matter is admitted if a

party fails to respond within thirty days or within a time period set by the court. . . . Rule 36

does not require a motion for the Court’s imprimatur on the unanswered requests for

admission. The rule is self-executing. A motion to establish or affirm the admissions upon a

party’s failure to admit or object is unnecessary under Rule 36(a). The resources of the parties

and the Court should be devoted to other pursuits in the case.

Id. at 689-90 (internal citations omitted). The court also noted that “[s]ince court intervention is not

required to invoke Rule 36(a), an order restating Rule 36 would be surplusage.” Id. at 690.

The Court agrees with the reasoning of these decisions and finds that Plaintiffs’ motion is

unnecessary, given that Rule 36(a) is self-executing in establishing the admission of RFAs in cases

where a party fails to submit timely answers or objections.1

 Under the express terms of Rule 36(a),

Defendants have already admitted each RFA propounded by Plaintiffs by failing to answer or object in

a timely manner. Therefore, the Court STRIKES Plaintiffs’ motion as moot.

(2) If Defendants wish to argue that their admissions to the RFAs should be withdrawn or

amended, it is their burden to file a motion to do so. See Fed. R. Civ. P. 36(b) (providing that “[a]ny

matter admitted under this rule is conclusively established unless the court on motion permits

withdrawal or amendment of the admission.”).

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ORDER - 3

(3) The Court strongly cautions Defendants’ former counsel Stephen Gillard that when he

appears in this Court as counsel of record, he is obliged to follow all applicable Court rules and

procedures and to represent his clients diligently. This includes a responsibility to thoroughly review

and to timely respond to any discovery requests propounded on his clients. Mr. Gillard has attempted

to explain his failure to thoroughly review and respond to Plaintiffs’ discovery requests by stating that

he would not be serving as “trial counsel” in this case. However, Defendants are not excused from

responding to discovery requests due to their delay in retaining “trial counsel” for this case,

particularly in light of the amount of time that this matter has been pending.

(4) Because the Court finds that Plaintiffs’ motion was unnecessary, the Court declines to

award any attorney fees or costs in connection with this motion.

(5) The clerk is directed to provide copies of this order to all counsel of record.

Dated: October 3, 2006.

s/Marsha J. Pechman 

Marsha J. Pechman

United States District Judge

Case 2:05-cv-01962-MJP Document 40 Filed 10/03/06 Page 3 of 3