IN THE UNITED STATES DISTRICT COURT 

·FOR THE DISTRICT OF OREGON 

CAPSUGEL BELGIUM NV and 

CAPSUGEL US, LLC, 

Plaintiffs, 

v. 

BRIGHT PHARl\ifA CAPS, INC., JC 

BRIGHT ML TD., JC BIO-TECH CO 

LTD., and KARL CAO, 

Defendants. 

PAPAK, Magistrate Judge: 

3:15-cv-321-PK 

OPINION AND ORDER 

Plaintiff Capsugel Belgium NV filed this action against Defendant Bright Pharma Caps, 

Inc. ("Bright Phanna") on February 24, 2015. On July 6, 2015, Capsugel Belgium NV filed an 

Amended Complaint (# 19) joining Capsugel US, LLC (collectively with Capsugel Belgium NV, 

"Capsugel") as a plaintiff and JC Bright M Ltd. ("JC Bright"), JC Bio-Tech Co. Ltd. ("JC Bio"), 

and Karl Cao as defendants. Capsugel's Amended Complaint asserts claims under Oregon and 

federal law for false advertising, unfair competition, and patent infringement. All of Capsugel's 

claims arise from or relate to Defendants' production, marketing, and sale of Bright-Poly 

capsules. The court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 

§§ 1331, 1338(a), 1367. 

The cmTent discovery dispute arises from Bright Pharma's Motion to Withdraw 

Admissions (#33) ("Bright Phmma's Motion"). The court has reviewed the record, the relevant 

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exhibits, and all of the briefing. For the reasons provided below, Bright Pharma's Motion is 

GRANTED. 

FACTUALAND PROCEDURAL BACKGROUND 

Capsugel is "the world's leading provider of empty, two-piece hard capsules." Bright 

Phatma is an Oregon corporation with its principal place of business in Hood River, Oregon. 

Bright Phmma sells Bright-Poly capsules in Oregon and throughout the United States. BrightPoly capsules compete with Capsugel's pullulan-based capsules and are the subject of this 

litigation. 

On April 3, 2015, Capsugel served upon Bright Pharma its first set of Requests for 

Admission ("RF A"). Bright Phatma now seeks to withdraw admissions it made in response to 

six of those RF As. The relevant RF As as well as Bright Pharma's actual and proposed responses 

are as follows: 

No. 61: Admit that Karl Cao controls the content of the webpage: 

http://www.brightpharmacaps.com/products/dl.html. 

Initial Response: Admitted. 

Proposed Response: Denied. 

No. 63: Admit that Karl Cao can control the content of the webpage: 

http://www.brightpharmacaps.com/products/dl.html. 

Initial Response: Admitted. 

Proposed Response: Denied. 

No. 77: Admit that Karl Cao intends for Bright-Poly capsules supplied to BPC to 

be sold in the United States. 

Initial Response: Admitted. 

Proposed Response: Objection. In context of the accompanying Requests, 

this Request appears to assume that Karl Cao's company JC Bright 

supplies Bright-Poly capsules to BPC. BPC denies that JC Bright supplies 

Bright-Poly capsules to BPC, does not know to what capsules the 

remainder of the Request refers, and on that basis denies the same. 

No. 82: Admit that JCB intends for Bright-Poly capsules supplied to BPC to be 

sold in the United States. 

Initial Response: Admitted. 

Proposed Response: Objection. Because JCB does not supply Bright-Poly 

capsules to BPC, its 'intention' regarding BPC's capsules is irrelevant and 

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this request is not reasonably calculated to lead to the discovery of 

admissible evidence. 

No. 90: Admit that in 2014, JCB supplied Bright-Poly capsules to BPC knowing 

BPC could offer those capsules for sale in the United States. 

Initial Response: Admitted. 

Proposed Response: Denied. 

No. 103: Admit that after learning of this lawsuit, JCB supplied BPC with BrightPoly capsules. 

Initial Response: Admitted. 

Proposed Response: Denied. 

Bright Pharma's Mot. 3-4 (citing Barr Deel., Ex. 1 (#34-1 ). 

LEGAL STANDARD 

Federal Rule of Civil Procedure 36(b) governs a party's ability to withdraw admissions. 

The rule provides, in pertinent pmi: 

Id. 

[T]he comi may permit withdrawal or amendment when the presentation of the 

merits of the action will be subserved thereby and the pmiy who obtained the 

admission fails to satisfy the court that withdrawal or amendment will prejudice 

that party in maintaining the action or defense on the merits. 

Thus, Rule 36(b) provides a two-pronged test that permits withdrawal of 

admissions only when (1) withdrawal would promote the presentation of the merits of the 

action and (2) the party who obtained the admissions fails to persuade the court that 

withdrawal would prejudice it in maintaining or defending the action on the merits. Id; 

accord Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007) (citations and internal 

quotation marks omitted). 

DISCUSSION 

Bright Phmma has established that withdrawal of its admissions would promote the 

presentation of the merits of the action. Rule 36(b) "seeks to serve two important goals: truthseeking in litigation and efficiency in dispensing justice." Conlon, 474 F.3d at 622 (citing Fed. 

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Case 3:15-cv-00321-PK Document 79 Filed 11/13/15 Page 3 of 5
R. Civ. P. 36(b) Advisoty Committee Notes). The rule therefore codifies the common law 

practice of allowing withdrawal where, "through honest error a party has made an improvident 

admission." SB Wright & A. Miller, Fed. Prac. & Proc. Civ. § 2264 (3d ed.), section cited with 

approvalin 999 v. C.l T. Corp., 776 F.2d 866, 869 (9th Cir. 1985); see also Asea, Inc. v. S. Pac. 

Transp. Co., 669 F.2d 1242, 1248 (9th Cir. 1981) ("[W]hen an admission has been made 

inadvetiently, Rule 36(b) might well require the district comi to permit withdrawal."). 

In this case, Bright Pharma made the admissions it now seeks to withdraw due to honest 

etTOr. See Barr Deel. (#34). The ascetiainment of the truth and development of the merits will 

therefore be enhanced by allowing Bright Phmma to withdraw its erroneous admissions and by 

petmitting the parties to accurately discover mtd present the facts sought by the RF As. See 

Conlon, 474 F.3d at 622 (citing Fed. R. Civ. P. 36(b) Advisory Committee Notes); see also Smith 

v. First Nat. Bank of Atlanta, 837 F.2d 1575, 1577 (11th Cir. 1988) (affinning district court order 

granting motion to withdraw admission and holding that it would be "manifestly unfair and 

grossly unjust" to deny the motion where the admission was, at most, "excusable neglect"). 

Therefore, the first prong of the Rule 36(b) test is resolved in Bright Pharma's favor. 

Capsugel has failed to show that it would be prejudiced by Bright Pharma's withdrawal of 

its erroneous admissions. "The patiy relying on the deemed admission has the burden of proving 

prejudice." Conlon, 474 F.3d at 622 (citing Fed. R. Civ. P. 36(b)). As the Ninth Circuit has 

explained: 

The prejudice contemplated by Rule 36(b) 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 to the questions previously deemed admitted. 

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Case 3:15-cv-00321-PK Document 79 Filed 11/13/15 Page 4 of 5
Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995) (citation omitted) (internal quotation 

marks omitted)). 

"There is nothing in the record indicating that withdrawal of the admissions would 

prejudice Capsugel's ability to prove its case. The court has yet to set a trial date, and there is 

still plenty of time for Capsugel to accurately discover the facts it sought through its RF As. See 

November 10, 2015 Order (#78); see also Hadley, 45 F.3d at ("Comis are more likely to find 

prejudice when the motion for withdrawal is made in the middle of trial." (citing 999, 776 F.2d at 

869)). Therefore, the second prong of the Rule 36(b) test is also resolved in Bright Phatma's 

favor. 

CONCLUSION 

Because both prongs of the Rule 36(b) test are resolved in Bright Phaima's favor, Bright 

Phatma's Motion (#33) is GRANTED. 

\":,,_\~ 

Dated thi~ day ofNovember, 2015. 

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