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United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. CUSTOM HOUSE

721 19TH STREET, ROOM 407

DENVER, COLORADO 80202-2517

SECRETARY OF LABOR,

Complainant,

v.

TNT CRANE & RIGGING, INC.,

Respondent.

 

 OSHRC Docket No.: 17-1872

ORDER DEEMING ADMISSIONS ADMITTED AND GRANTING MOTION TO 

WITHDRAW

On May 31, 2018, Respondent filed Respondent’s Motion to Deem Requests for 

Admissions Admitted (“Motion to Deem Admissions Admitted”). On June 14, 2018, Complainant 

responded to Respondent’s motion by filing Complainant’s Response in Opposition to 

Respondent’s Motion to Deem Requests for Admission Admitted or in the Alternative, 

Complainant’s Motion to Withdraw Admissions (“Complainant’s Opposition and Motion to 

Withdraw Admissions”). On June 14, 2018, the Court ordered Respondent to respond only to 

Complainant’s alternative Motion to Withdraw Admissions. On June 22, 2018, Respondent filed 

Respondent’s Opposition to Complainant’s Motion to Withdraw Admissions.
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Case Law

Despite the common approach of one party filing a Motion to Deem Admissions

Admitted, Commission Rule 54 and Fed.R.Civ.P. 36 do not require such a practice. Both rules 

dictate admissions are automatically admitted if not answered within 30 days of the day they 

were served upon opposing counsel. See Sec’y of Labor v. Guillen, 26 BNA OSHC 1545, 1547 

(No. 16-1214, 2017); See also 29 C.F.R. § 2200.54; Fed. R. Civ. P. 36.

1 However, admissions 

which have been deemed admitted are ones which can be withdrawn, if the moving party 

successfully meets its burden in establishing the elements of the two-prong test laid out in 

Commission Rule 54(c). E.g. Sec’y of Labor v. Samsonite Corp., 10 BNA OSHC 1583, 1584 

(No. 79-5649, 1982) (holding the Secretary’s deemed admissions can be withdrawn)

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; Wilcox v. 

Birtwhistle, 21 Cal. 4th 973, 987 P.2d 727 (Cal. 1999) (holding that per California’s clear 

statutory law, a deemed admission is one which can be withdrawn just as an admission which is 

admitted to). The two-prong test requires the moving party, by preponderance of the evidence, 

prove: (1) withdrawal of the admission will not prejudice the non-moving party; and (2) granting 

the motion will allow the case to be presented on its merits. 29 C.F.R. § 2200.54(c). According 

to the rule, the party who obtained the admission must show the court they would be prejudiced 

if the Court allows withdrawal of the admission. Id. “The prejudice contemplated by [Rule 54(c)]

is ‘not simply that the party who obtained the admission will now have to convince the factfinder 

of its truth. Rather, it relates to the difficulty a party may face in proving its case, e.g., caused by 

the unavailability of key witnesses, because of the sudden need to obtain evidence’ with respect 

 

1

 Since the Commission has adopted a Rule addressing Admissions, that is the Rule which is applicable for the 

Court’s analysis. See Commission Rule 2(b)(in the absence of a specific provision, procedure shall be in accordance 

with the Federal Rules of Civil Procedure). 29 C.F.R. § 2200.2(b).

2 The Samsonite Corp. case was decided prior to the Commission’s adoption of Commission Rule 54 (c). 
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to the questions previously deemed admitted.” Hadley v. U.S., 45 F.3d 1345, 1348 (9th Cir. 

1995) (quoting Brook Village N. Assocs. v. General Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982).

The Court has complete discretion in granting the Motion to Withdraw Admissions. See 

Conlon v. U.S., 474 F.3d 616, 625 (9th Cir. 2007). Even if the moving party successfully proves 

it meets the two-prong test, the Court may still deny the motion if the party, against who the 

admissions are deemed admitted, did not establish excusable neglect. See Id.

Excusable neglect is a form of good cause the Court can use to grant withdrawal. See 

Espy v. Mformation Technologies, No. 08-2211-EFM, 2009 WL 2912506, at *1 (D. Kan. Sept. 9, 

2009). The standard for excusable neglect is a factor test which is laid out in Pioneer Investment

Services Co. v. Brunswick Associates Ltd. Partnership. The test requires the Court to consider: 

(1) the danger of prejudice to the adversely affected party; (2) the length of delay and potential 

impact on judicial proceedings; and (3) the reason for the delay. In determining the reason for the 

delay, the Court should ask whether the delay was within the reasonable control of the movant, 

and if the movant acted in good faith. See Pioneer Inv. Svcs., 507 U.S. 380, 395 (1993). See also 

Sec’y of Labor v. TMD Contracting, 24 BNA OSHC 1441, 1444 (No. 12-0962, 2012) (adopting 

the Pioneer Court’s standard for excusable neglect).

The Pioneer Court also noted that although inadvertent, ignorance of the rules or 

mistakes construing the rules do not usually constitute excusable neglect. That concept “is a 

somewhat ‘elastic concept’, and is not limited strictly to omissions caused by circumstances 

beyond the control of the movant.” Pioneer, 507 U.S. at 392. However, the Commission has 

consistently held that, “ignorance of procedural rules does not constitute ‘excusable neglect’ and 

that mere carelessness or negligence does not justify relief.” Acrom Constr. Serv., Inc., 15 BNA 
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OSHC 1123, 1126 (No. 88-2291, 1991); Keefe Earth Boring Co., 14 BNA OSHC 2187, 2192 

(No. 88-2521, 1991). (citing New Blue Shield Constr., Inc., 22 BNA OSHC ¶ 1133 

(O.S.H.R.C.A.L.J. Aug. 10, 2007)).

Argument

Respondent requests Respondent’s First Set of Requests for Admissions be admitted. 

Further, Respondent requests the Court deny Complainant’s Motion to Withdraw Admissions. 

Respondent argues it will be prejudiced if the Court grants Complainant’s Motion to Withdraw 

Admissions. Specifically, Respondent makes three arguments in its Opposition to Complainant’s 

Motion to Withdraw Admissions: (1) it is not Respondent’s job to assist Complainant in 

prosecuting its claims; (2) because Complainant failed to timely answer its Request for 

Admission, its ability to timely investigate the allegations and form its defenses is hindered; and

(3) there are multiple witnesses who are unavailable for discovery.

While Respondent has cited Guillen in its Motion to Deem Admissions Admitted, that 

case is not dispositive. Guillen, 26 BNA OSHC at 1545. Though Guillen does recite Commission

Rule 54(a) in stating that a failure to timely respond serves as an admission, the case is not 

entirely on point. Id. Guillen deals with a Respondent who did not answer the Complaint in 

addition to the Request for Admissions. Id. The Guillen Court held that alternatively, the 

Respondent was in default. Id. That is not so in the instant case. Here, Complainant filed the 

Complaint, and has participated in every step of the litigation thus far. Additionally, Guillen does 

not address Commission Rule 54(c), which permits withdrawal or modification of admissions 

deemed admitted, which is at issue here.
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Complainant contends Respondent’s Motion to Deem Admissions Admitted should be 

denied, or alternatively, if the Court finds the admissions to be admitted, then to grant 

withdrawal of such admissions. Complainant makes five arguments in its Opposition and Motion 

to Withdraw Admissions: (1) upholding the admissions would eliminate any presentation of the 

merits of its case; (2) Respondent will not be prejudiced if the admissions are withdrawn; (3) the 

original attorney for Complainant, Christopher Lopez-Loftis, mistakenly overlooked 

Respondent’s Request for Admissions and did not send the complete file to new counsel (Josh 

Bernstein); (4) Counsel corresponded approximately fifty times from the time Mr. Bernstein

appeared in this case, until May 15, 2018, when Respondent informed Complainant it would file 

a Motion to Deem Admissions Admitted; and (5) Complainant believes Respondent is acting in 

bad faith by exploiting Complainant’s oversight.

Discussion

The Court finds the admissions requested are automatically deemed admitted because

Complainant did not answer the Request for Admissions within 30 days of the day they were 

served upon opposing counsel. See Sec’y of Labor v. Guillen, 26 BNA OSHC at 1547. See also

29 C.F.R. § 2200.54; Fed. R. Civ. P. 36. The Court further finds Complainant’s Motion to 

Withdraw Admissions satisfies the two-prong test laid out in Commission Rule 54(c).

The primary issue here is whether Respondent will be prejudiced if the Court grants 

withdrawal. The burden is on Respondent to show the Court it will be prejudiced. 29 C.F.R. § 

2200.54(c). Prejudice is proven by showing the party will face difficulty proving its case, e.g., 

because of the sudden need to obtain evidence with respect to the previously deemed admissions 

caused by the unavailability of key witnesses. See Hadley v. U.S., 45 F.3d 1345, at 1348. To 
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persuade the Court, Respondent makes three arguments. First, Respondent argues that 

Complainant should not be given a pass for its failure.3 This may be valid in other contexts, but 

here, it is irrelevant. This does not show Respondent is prejudiced. It only shows that it may be 

unfair to let Complainant get away with not answering in a timely manner. 

Second, Respondent argues it is unable to investigate Complainant’s allegations while 

witnesses have “fresh memories” because of Respondent’s delay.4 However, this raises an 

important question – why did Respondent not bring this issue up to the Court or Complainant 

sooner than five months after a response was due if it affected its case on such a level? As 

mentioned above, a party is not required to file a Motion to Deem Admissions Admitted. 

However, in the present case, Respondent did not assert it began acting as if the admissions were 

deemed admitted in conducting its discovery. If Respondent showed it acted as if the admissions 

were automatically deemed admitted, and for the last five months it has been conducting 

discovery accordingly, the Court would have an easier time finding it would be prejudiced;

because it would effectively have to start its discovery process over. Also, the Court has factored 

in that any prejudice may have been enhanced by Respondent’s own failure to timely prosecute 

this matter. 

Finally, Respondent argues two of its witnesses are unavailable for discovery.5 This 

argument is also inadequate. The Court would find the unavailability of witnesses to prejudice 

Respondent if, by granting withdrawal, Respondent had a sudden need to obtain discovery from 

the unavailable witnesses. This need was not asserted here. As mentioned above, Respondent did 

not assert it began acting as if the admissions were already deemed admitted. All Respondent 

 

3 Respondent’s Opposition to Complainant’s Motion to Withdraw Admissions, at 2.

4

Id.

5

Id. at 3.
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argues is they are unable to locate a witness, and another has a medical condition rendering him 

unavailable. Bare allegations of unavailability without further proof are insufficient for 

Respondent to meet its burden. Respondent did not assert the actions it has taken to locate the 

unavailable witness in order to prove it has exercised every option within its means to locate the 

witness. As to the witness with a medical condition which makes him unavailable, again, bare 

allegations are not sufficient. What medical condition does the individual have which makes him 

unavailable? Can he be available with accommodations? Can the witness testimony be obtained 

through alternative means of discovery, i.e. written deposition or video deposition? Also, the 

Court is perplexed as to how the withdrawal of the admissions causes these witnesses to be 

unavailable. Would the position of Respondent in regard to these witnesses be the same had the 

admissions been timely answered? Had Respondent shown that Complainant’s delay or the Court 

granting withdrawal somehow causes the unavailability of its witnesses, the Court may have a 

different view on whether Respondent is prejudiced.

The second prong of the two-prong test laid out in Commission Rule 54 requires that 

granting the Motion to Withdraw Admissions will allow the case to be presented on its merits. 

Respondent agrees the merits of this case will be sub served if withdrawal is not granted.6

Similarly, Complainant argues that presentation of its case will be practically eliminated if 

withdrawal is not granted.7 Well established Commission law demands a case be decided on its 

merits, rather than on procedural flaws. Stone & Webseter Constr., Inc., 23 BNA OSHC 1939, 

1943-44 (No. 10-0130, 2012) (consolidated); Sealite Corp., 15 BNA OSHC 1130, 1133 (No. 88-

1431, 1991); Duquesne Light Co., 8 BNA OSHC 1218, 1222-23 (No. 78-5034, 1980)

 

6 See Id. at 2.

7 Complainant’s Opposition and Motion to Withdraw, at 4.
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(consolidated). The second prong of the two-prong test provided in Commission Rule 54 is 

established.

 The Court also finds the Solicitor has established excusable neglect under the Pioneer 

standard. Excusable neglect is established because Respondent is not prejudiced; as there is still 

sufficient time left before trial to conclude discovery, or in the alternative to ask for a 

postponement of the trial date. Additionally, Complainant showed good cause in its reason for 

the oversight. See Pioneer, 507 U.S. at 395. Accordingly, the Court finds Respondent is not 

prejudiced by the granting of Complainant’s Motion to Withdraw Admissions.

ORDER

Pursuant to Commission Rule 54(b), Respondent’s First Set of Requests for Admissions is 

deemed ADMITTED. Further, the Court finds granting Complainant’s Motion to Withdraw 

Admissions is proper. Accordingly, the Court hereby GRANTS Complainant’s Motion to 

Withdraw Admissions. The Court further ORDERS Complainant to submit a response to 

Respondent’s First Set of Requests for Admissions no later than ten days from the date of this 

Order.

SO ORDERED.

/s/

Dated: July 10, 2018 Patrick B. Augustine

Judge, OSHRC