UNITED STATES OF AMERICA 


FEDERAL TRADE COMMISSION 


OFFICE OF ADMINISTRATIVE LAW JUDGES 


) 

In the Matter of ) 

) 

McWANE, INC., ) 

a corporation, and . ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

Respondents. ) 

) 

ORDER GRANTING COMPLAINT COUNSEL'S 


MOTION TO COMPEL RESPONDENT MCWANE, INC.'S 


RESPONSES TO REQUESTS FOR ADMISSION 


I. 

On June 25, 2012, Complaint Counsel, pursuant to Commission Rule of Practice 3.38, 

filed a Motion to Compel Respondent Mc Wane, Inc.' s ("Mc Wane" or "Respondent") 

Responses to Requests for Admissions ("Motion")~_CQmplainLCounsel seeks an order 

directing Respondent to provide "adequate and complete" responses to Complaint Counsel's 

Requests for Admissions ("RFA") Nos. 1-12, 15, 17-18,22,33,37,38,40,42-43, and48-50, 

and to produce any evidence in Respondent's possession relating to Respondent's denial of 

RFAs 37 and 48-50. Specifically, Complaint Counsel contends that: (A) Respondent's 

objections are improper as to RFAs 1-11, 15, 17-18,22,33,37, and 42-43; (B) Respondent's 

responses to RFAs 1,3-6,8, and 10-12 are nonresponsive and evasive; (C) Respondent 

improperly claims insufficient information to admit or deny RFAs 9, 18,22,33,38 and 40; 

and (D) Respondent's denials ofRFAs 37 and 48-50 are improper because they are contrary 

to discovery produced to date and therefore the denials are "unsupported." IfRespondent has 

evidence in support ofthe denials, Complaint Counsel argues, it has not produced it in 

discovery and therefore must be ordered to do so. 

Respondent has not filed any response to the Motion within the 5-day time period 

allowed under Commission Rule 3.38. 

For the reasons set forth below, the Motion is GRANTED. 
II. 

Commission Rule 3.32 provides in pertinent part: 

(a) 	... any party may serve on any other party a written request for admission ofthe truth 

of any matters relevant to the pending proceeding set forth in the request that relate to 

statements or opinions offact or ofthe application oflaw to fact, including the 

genuineness of any documents described in the request. ... 

(b) The matter is admitted unless, ... the party to whom the request is directed serves 

upon the party requesting the admission, ... a sworn written answer or objection 

addressed to the matter. If objection is made, the reasons therefor shall be stated. The 

answer shall specifically deny the matter or set forth in detail the reasons why the 

answering party cannot truthfully admit or deny the matter. A denial shall fairly meet 

the substance ofthe requested admission, and when good faith requires that a party 

qualify its answer or deny only a part ofthe matter of which an admission is requested, 

the party shall specify so much ofit as is true and qualify or deny the remainder. An 

answering party may not give lack ofinformation or knowledge as a reason for failure 

to admit or deny unless the party states that it has made reasonable inquiry and that the 

information known to or readily obtainable by the party is insufficient to enable it to 

admit or deny.... 

16 C.F.R. § 3.32 (a),(b). 

The purpose ofrequests for admission "is to narrow the issues for trial by relieving the 

parties ofthe need to prove facts that will not be disputed at trial and the truth of which can be 

easily ascertained. In re Aspen Technology, Inc., 2003 FTC LEXIS 178, at * 1 (Dec. 2, 2003); 

In re General Motors Corp., 1977 FTC LEXIS 293, at *3 (Jan. 28, 1977)." In re Basic 

Research LLC, 2004 FTC LEXIS 225, at *2-3 (Nov. 30, 2004). "The purpose of admissions 

is not to obtain extensive discovery offacts but to reach agreement as to facts which are not in 

dispute. It is, therefore, proper to request admissions as to facts which are in one's 

possession." In re Trans Union Corp., 1993 FTC LEXIS 116, at *2 (May 24, 1993). See also 

In re General Motors Corp., 1977 FTC LEXIS 293, at *4 (stating that purpose ofrequests for 

admissions is to expedite the trial and to relieve the parties ofthe costs of proving facts that 

will not be disputed at the trial, and the truth ofwhich can be easily ascertained by reasonable 

inquiry). I 

1 The provisions governing admissions under Commission Rule 3.32 are substantially similar to those under 

Federal Rule of Civil Procedure 36, except that the Federal Rules further provide for the imposition of costs and 

attorney's fees upon the answering party, in certain circumstances, if a party fails to admit what is requested 

under Rule 36 and the requesting party at trial proves the matter to be true. See Fed. R. Civ. P. 37 (c)(2). It has 

been stated that because such potential sanction is lacking in Commission Rule 3.32, "the usefulness of [requests 

for] admissions is questionable at best, and largely turns on the willingness of parties to remove certain facts 

from the case because it is in their own self-interest to avoid time-consuming and expensive trial time." In re 

General Motors Corp., 1977 FTC LEXIS 293, at *6. 

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III. 

Commission Rule 3.3 8, which governs motions to compel, provides in pertinent part: 

(a) Motion for order to compel. A party may apply by motion to the 

Administrative Law Judge for an order compelling disclosure or discovery, 

including ... a request for admission under § 3.32, ... Any response to the 

motion by the opposing party must be filed within 5 days ofreceipt of service 

ofthe motion .... The Administrative Law Judge shall rule on a motion to 

compel within 3 business days ofthe date in which the response is due. 

Unless the Administrative Law Judge determines that the objection is justified, 

the Administrative Law Judge shall order that ... an answer to any requests for 

admissions, ... be made. 

16 C.F.R. § 3.38(a) (emphasis added). 

The Motion was filed and, according to Complaint Counsel's Certificate of Service, 

served electronically on Respondent on June 25, 2012. Pursuant to Rule 3.38(a), 

Respondent's response to the Motion was due July 2, 2012. No response was filed. 

Having fully reviewed Complaint Counsel's Motion and the Requests for Admissions 

at issue, and in accordance with applicable law, Complaint Counsel's Motion is GRANTED, 

and it is hereby ORDERED, as follows: 

A. As to RF As 1-11, 15, 17, 18, 22, 33, 37, and 42-43, Respondent has failed to 

demonstrate that its objections are justified and, accordingly, a response is required in 

accordance with Rule 3.32(b). See Rule 3.38(a)? 

B. As to RFAs 1,3,5-6,8 and 10-12, Respondent has failed to demonstrate that its 

objections are justified. See Rule 3.38(a). Moreover, the responses are evasive or nonresponsive to the substance ofthe question. See Rule 3.32(b); Rule 3.38(a); In re General 

Motors, 1977 FTC LEXIS 293, at *11 (holding that request "may not be evaded by 

responding to a question which was not asked"). Accordingly, Respondent shall clearly and 

directly admit, deny, or explain that it is unable to admit or deny RFAs 1,3,5-6,8 and 10-12 

because of a lack of sufficient information after reasonable inquiry, in accordance with Rule 

3.32(b). 

C. As to RFAs 9, 18,22,33,38 and 40, Respondent has failed to demonstrate that its 

objections are justified. See Rule 3.38(a). Respondent's various assertions ofinsufficient 

information to admit or deny, followed by denial, renders the denial a legal nullity. See 

2 Although Respondent objected to each ofRFAs 1-11, 15, 17, 18,22,33,37, and 42-43, Respondent raised 

objections and refused to answer only RF As 2, 4, 7, 42 and 43. Except as to RF As 2, 4, 7,42 and 43, 

Respondent proceeded to answer. Where the answer has been challenged by the Motion as insufficient, further 

answer is being required under Sections Band C above. The Motion did not challenge Respondent's answers to 

RFA 15 or 17. 

3 

Dulansky v. Iowa-Illinois Gas & Elec. Co., 92 F. Supp. 118 (D. Iowa 1950) (interpreting 

Federal Rule on requests for admission and concluding that the use ofthe word "denied" 

qualified by a statement that the responding party does not have knowledge or information 

upon which to form a belief is a nullity and has the legal effect of an admission). Respondent 

shall clearly and directly admit, deny, or explain that it is unable to admit or deny RF As 9, 18, 

22,33,38 and 40 because of a lack ofsufficient information after reasonable inquiry, in 

accordance with Rule 3 .32(b). 

D. Respondent shall produce any evidence in its possession relating to its denial of 

RFAs 37 and 48-50. Evidence that is not produced will not be admitted at the administrative 

hearing. 

E. Respondent shall comply with the terms ofthis Order no later than 5:00 p.m. on 

July 16,2012. 

ORDERED: 

Date: July 5, 2012 

D. Michael Chappell 

Chief Administrative Law Judge 

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