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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

UNITED STATES OF AMERICA 

Plaintiff, 

v. 

PETER ROGAN, 

Defendant. 

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Case No. 02C 3310 

Judge John W. Darrah 

DEFENDANT’S RENEWED MOTION IN LIMINE 

TO DEEM FACTS ADMITTED

(MOTION 5 OF 6)

Defendant Peter Rogan (“Rogan”) respectfully requests that this Court deem 

admitted all facts contained in his August 10, 2004 submission “Defendant Peter Rogan’s First 

Set of Requests for Admissions and Second Set of Interrogatories to Plaintiff” (“the Requests”). 

More than thirty days have passed since Rogan submitted the Requests to the Plaintiff United 

States. The United States failed to reply to the Requests, instead waiting well over a year to seek 

to withdraw its admissions. However, the United States cannot satisfy the applicable two-part 

test necessary to withdraw its admissions. Thus, under Federal Rule of Civil Procedure 36(a), 

the matters are admitted. 

FACTUAL BACKGROUND

1. Rogan submitted the Requests to the United States on August 10, 2004. 

The Requests included an interrogatory requesting identification of each fact, document, or 

witness on which the United States based its denials of admission. (See Requests for 

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Admissions, attached as Exhibit A, at 10). Discovery was originally set to close August 10, 

2004, but on August 4, 2004, six days before Rogan filed the Requests, the United States moved 

to extend discovery by ten months. Rogan previously advised the United States that he would 

agree to a 45-day extension, and the United States recited that representation in its motion to 

extend discovery. On October 4, 2004, this Court then ordered an extension of discovery until 

November 19, 2004. More than thirty days have passed since the Requests were submitted. 

Even counting from October 4, 2004, the date on which the Court ordered discovery extended, 

well over thirty days have elapsed. 

2. The United States’ failure to respond to the Requests is particularly 

significant because it did respond to Rogan’s deposition notice for Assistant United States 

Attorney Jaqueline Stern, which Rogan also filed August 10, 2004. Rogan noticed the 

deposition for September 9, 2004. On September 7, 2004, the United States moved to quash the 

deposition notice and for a protective order, though the deposition was to take place after August 

10, 2004 and before this Court had agreed to extend discovery. 

ARGUMENT

3. Under Rule 36, the Requests are deemed admitted because the United 

States failed to respond within thirty days of service. Rule 36, which governs requests for 

admission, “allows parties to narrow the issues to be resolved at trial by effectively identifying 

and eliminating those matters on which the parties agree.” United States v. Kasuboski, 834 F.2d 

1345, 1350 (7th Cir. 1987). The Rule states: 

The matter is admitted unless, within 30 days of 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 

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upon the party requesting admission a written answer or objection addressed to 

the matter, signed by the party or by the party’s attorney. 

Fed. R. Civ. P. 36(a). Thus, the party to whom the requests are directed must “take some 

affirmative action, either by response to the requests or by objecting thereto if any ground he 

has.” Mangan v. Broderick and Bascom Rope Co., 351 F.2d 24, 28 (7th Cir. 1965). By failing 

to respond or object to such requests, a party automatically admits them. Fed. R. Civ. P. 36(a); 

Kasuboski, 834 F.2d at 1349. “Moreover, the Rule is self-executing, meaning that no court 

intervention is required for an admission to be established. Instead, unanswered requests for 

admission are automatically deemed admitted with the passage of the deadline to respond.” 

Lawson v. Diehl Machines, Inc., No. 3:98-CV-194RP, 1999 U.S. Dist. LEXIS 7625, at *8 (N.D. 

Ind. April 16, 1999). 

4. Here, the United States failed to take affirmative action in response to the 

Requests as required by Rule 36. Rogan served the Requests August 10, 2004, and the United 

States failed to respond within the 30-day time period, despite the fact that it responded promptly 

to the notice of deposition for Stern, which it received simultaneously. While discovery 

originally closed August 10, 2004, the United States filed for an extension of discovery August 

6, 2004. Rogan agreed to a 45-day extension, and on October 4, 2004, this Court continued 

discovery for an additional 45 days, or until November 19, 2004. Even counting from the date 

on which discovery extended, the thirty days allotted for the United States’ response have long 

since passed. Any claim that the Requests were filed too late is belied by the fact the United 

States responded to Rogan’s deposition notice for AUSA Stern, which was served on the same 

date as the Requests and which sought the deposition after August 10. Moreover, because the 

United States successfully moved to extend discovery, it cannot now pretend that this Court 

denied its request by arguing that discovery closed before its thirty-day response period elapsed. 

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5. The United States’ Motion to Quash and Defendants’ First Set of Requests 

for Admissions, or Alternatively, Motion for Leave to File Response Out of Time, filed on 

February 10, 2005, is too little too late. Under Rule 36(b), a party may withdraw or amend its 

default answers if (1) “the presentation of the merits of the action will be subserved thereby” and 

(2) “the party who obtained the admission fails to satisfy the court that withdrawal or amendment 

will prejudice the party in maintaining the action or defense on the merits.” Fed. R. Civ. P. 

36(b). The United States cannot satisfy either part of the test. 

6. The Ninth Circuit held that the first half of the test is satisfied “when 

upholding the admissions would practically eliminate any presentation of the merits of the case.” 

Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995). The second half of the test is 

satisfied if the party that obtained the admissions cannot show prejudice relating 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 to the questions previously deemed 

admitted.” Id. (omitting internal quotation marks). 

7. Regarding the first part of the test, upholding these admissions will not 

eliminate all presentation of the merits of the case. The case is set for trial with numerous factual 

and legal issues in dispute as evidenced by the Pre-Trial Order. 

8. The United States also cannot satisfy the second part of the test. If this 

Court allows the United States to withdraw these admissions, Rogan will suffer real prejudice. 

“The purpose of Rule 36 is to permit the person obtaining the admission to rely thereon in 

preparation for trial.” Gardner v. S. Ry. Sys., 675 F.2d 949, 954 (7th Cir. 1982); see Tidwell v. 

Daley, No. 00 C 1646, 2001 U.S. Dist. LEXIS 18491, at *3 (N.D. Ill. Nov. 9, 2001) (“[I]f parties 

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. . . cannot depend on the binding effect of admissions obtained under the rule, they cannot safely 

avoid the time, effort, and expense of preparing proof of the matters of which they have secured 

admission and the purpose of the rule is frustrated.”). Rogan relied on the United States’ 

inaction to conclude that the requests were admitted, and he pursued discovery based on this 

reliance. Discovery is now closed, and without a Court Order reopening discovery (which is not 

justified or sought), Rogan will not be able to develop evidence concerning what were settled 

issues. 

9. Finally, even if it determines that the United States can satisfy the two-part 

test, this Court should exercise its discretion to deny a motion to withdraw admissions. Banos v. 

City of Chicago, No. 98 C 7629, 2004 U.S. Dist. LEXIS 4814, at *8 (N.D. Ill. March 25, 2004) 

(“Even if I find that both the merits and prejudice factors favor the party seeking withdrawal, I 

may refuse to allow withdrawal of an admission.”). Here, if the Court allows the United States 

to withdraw its admissions, not only will Rogan need to gather evidence regarding these issues, 

but the United States will need to answer the interrogatory that accompanied the Requests. This 

interrogatory required the United States to “identify the basis for Plaintiff’s denial, including, but 

not limited to, identifying each fact and document that supports your denial and identifying each 

person who, to your knowledge, information, or belief, has or claims to have knowledge that 

supports your denial.” (See Exhibit A, at 10). Granting withdrawal would be tantamount to 

reopening discovery, which would unnecessarily delay and complicate this proceeding. The 

United States’ failure to respond to Rogan’s requests has lead to a harsh result, however “[t]his 

result . . . is necessary to insure the orderly disposition of cases.” Kasuboski, 854 F.2d at 1350. 

In the interests of judicial efficiency and economy, this Court should exercise its discretion to 

deny any motion to withdraw admissions. 

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CONCLUSION

As set forth above, the United States failed to respond to the Requests within 

thirty days, and thus the matters are automatically admitted under Rule 36(a). Additionally, the 

United States’ motion to withdraw admissions should be denied because the United States cannot 

satisfy the two-part merits and prejudice test. Allowing withdrawal would require a reopening of 

discovery and unnecessarily delay the proceedings. Therefore, Defendant Peter Rogan 

respectfully requests that this Court deem as admitted the matters set forth in Rogan’s First Set of 

Requests for Admissions and Second Set of Interrogatories to Plaintiff. 

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Dated: March 15, 2006 

Respectfully submitted, 

 PETER ROGAN 

 By: s/Bryna J. Dahlin 

 One of his attorneys 

 Neil E. Holmen 

 Joseph A. Spiegler 

 Bryna J. Dahlin 

 Chris J. Stathopoulos 

 WINSTON & STRAWN LLP 

 35 West Wacker Drive 

 Chicago, Illinois 60601 

 (312) 558-5600 

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CERTIFICATE OF SERVICE

I certify that the foregoing Defendant’s Motion to Deem Facts Admitted has been 

served upon the following counsel this 15th day of March, 2006 as indicated below: 

Laurie Oberembt (by federal express) 

Trial Attorney 

Ben Franklin Station 

P.O. Box 261 

Washington, D.C. 20044 

Linda Wawzenski (by messenger) 

Assistant United States Attorney 

Dirksen Federal Building 

219 South Dearborn Street 

Chicago, IL 60604 

 _____s/Bryna J. Dahlin_________ 

 Attorney for Peter Rogan 

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