Gentry v. TJX Companies Inc

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PATRICIA DENISE GENTRY * CIVIL ACTION

VERSUS * NO. 23-5020

TJX COMPANIES INC., ET AL. * SECTION “R” (2)

ORDER AND REASONS

Pending before me are Plaintiff Patricia Denise Gentry’s Motion to Compel Discovery and

Strike Untimely Denials to Requests for Admission (ECF No. 9) and Defendant TJX Companies

Inc.’s Motion to Withdraw Admissions (ECF No. 10). Both parties timely filed Opposition

Memoranda. ECF Nos. 11, 12. Plaintiff filed a Reply Memorandum. ECF No. 13. No party

requested oral argument, and the court agrees that oral argument is unnecessary.

Having considered the record, the submissions and arguments of counsel, and the

applicable law, Plaintiff’s Motion to Compel and Strike (ECF No. 9) is DENIED WITHOUT

PREJUDICE and Defendant’s Motion to Withdraw Admissions (ECF No. 10) is GRANTED for

the reasons stated herein.

I. BACKGROUND

This is a personal injury case arising from an alleged slip and fall at a TJ Maxx store in

New Orleans, Louisiana. ECF No. 1. Plaintiff seeks to compel Defendant to respond to

interrogatories and requests for production, and further asks that Defendant’s untimely responses

to Plaintiff’s requests for admission be stricken. ECF No. 9.

Defendant opposes the motion, arguing that it produced its discovery responses on the same

day Plaintiff filed her motion to compel. ECF No. 11. Defendant argues that withdrawal of

deemed admissions allows the case to proceed on its merits and is not prejudicial to plaintiff. ECF

Nos. 10-2 at 2-5; 11 at 2-3.

Plaintiff disputes the contention that withdrawal would promote presentation on the merits

given the “heavy burden of proof on plaintiffs” in slip and fall cases. ECF No. 12. She further

argues that withdrawal of the admissions would cause undue prejudice to her given Defendant’s

“abuses of professional courtesies” over the last few months. Id. at 7. Plaintiff asserts that she

requested admissions of “simple facts, easily within the knowledge of TJ Maxx and its

employees,” hence withdrawal would not facilitate the development of the case. Id. at 5. Plaintiff

further argues that Defendant’s responses to the requests for admission do not comply with Rule

36 or caselaw. Id. at 6. Plaintiff claims that Defendant’s denials unfairly shift the burden and

expense of investigation and discovery to the Plaintiff. Id. at 7. Plaintiff’s Reply Memorandum

repeats her untimeliness argument and asks that the court overrule Defendant’s general and

boilerplate objection responses and compel supplemental responses. ECF No. 13.

II. APPLICABLE LAW

A. Duties in Responding to Discovery Requests

Both Rules 33 and 34 require a party to serve responses within 30 days of service, absent

court order or stipulation. FED. R. CIV. P. 33(b)(2); 34(b)(2)(A). A party served with written

discovery must fully answer each request to the full extent that it is not objectionable and

affirmatively explain what portion of an interrogatory or document request is objectionable and

why, affirmatively explain what portion of the interrogatory or document request is not

objectionable and the subject of the answer or response, and explain whether any responsive

information or documents have been withheld.1

For each request, the respondent must either state that the inspection or production will be

permitted or state with specificity the grounds for objecting to the request, including the reason.

1 Lopez, 327 F.R.D. at 580 (citation omitted).

FED. R. CIV. P. 34(b)(2)(B). If a party fails to produce documents, respond that inspection will be

permitted, or permit inspection, the party seeking discovery may, on notice to other parties and

certification that the parties participated in a Rule 37 conference in good faith, move for an order

compelling an answer, designation, production, or inspection. FED. R. CIV. P. 37(a).

B. Objections

The Federal Rules of Civil Procedure take a “demanding attitude toward objections,”2 and

courts have long interpreted the rules to prohibit general, boilerplate objections.3 Boilerplate

objections use standardized, ready-made or all-purpose language without regard to the particular

discovery request.4 General objections refer to objections that a party responding to discovery

asserts as applicable to multiple individual requests set forth in a given set of discovery requests.5

A general objection untethered to specific requests (and is thus also a boilerplate objection) is

improper.6 A proper objection must be specific and correspond to specific discovery requests.7

2 8B CHARLES WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2173 (3d ed. 2021).

3 See, e.g., Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Nos. 13-2809, 12-3197, 2015 WL 269051, at

*3 (E.D. La. Jan. 21, 2015) (noting that an objection is boilerplate and insufficient “when it merely states the legal

grounds for the objection without: (1) specifying how the discovery request is deficient and (2) specifying how the

objecting party would be harmed if it were forced to respond to the request.”) (citation omitted); see also McLeod,

Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485–86 (5th Cir. 1990) (simply objecting to requests as

“overly broad, burdensome, oppressive and irrelevant,” without showing “specifically how each [request] is not

relevant or how each question is overly broad, burdensome or oppressive” is inadequate to “voice a successful

objection.”) (citations omitted).

4 See Tim Long Plumbing, Inc. v. Kinsale Ins. Co., No. 20-42, 2020 WL 6559869, at *3 (E.D. Tex. Nov. 9, 2020)

(citation omitted) (providing examples for boiler plate language, such as “Defendant objects to this Request, as it is

overly broad and vague” and “Defendant objects to this Request to the extent it seeks discovery of information that is

irrelevant and not proportional to the needs of the case.”). Objections are deemed “boilerplate” when they are identical

and not tailored to the specific discovery request. Amazing Ins., Inc. v. DiManno, No. 19-1349, 2020 WL 5440050,

at *5 (E.D. Cal. Sept. 10, 2020) (citation omitted).

5 Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 134 n.16 (3d Cir. 2009).

6 See DL v. Dist. of Columbia, 251 F.R.D. 38, 43 (D.D.C. 2008) (citation omitted) (“When faced with general

objections, the applicability of which to specific document requests is not explained further, this Court will not raise

objections for the responding party, but instead will overrule the responding party's objections on those grounds.”

(internal quotations omitted)).

7 Dickey v. Apache Indus. Servs., Inc., No. 18-572, 2019 WL 4261117, at *3 (M.D. La. Sept. 9, 2019) (collecting

cases); see Hall v. Louisiana, No. 12-657, 2014 WL 2560579, at *1 (M.D. La. June 6, 2014) (“Defendants initially

gave general objections applicable to all of Plaintiff's discovery requests. But critically, after providing their general

objections, Defendants addressed each and every discovery request individually, making specific objections before

providing detailed and informative responses, notwithstanding those objections.”).

Thus, the party objecting must state how the objection “relates to the particular request being

opposed, and not merely that it is ‘overly broad and burdensome’ or ‘oppressive’ or ‘vexatious’ or

‘not reasonably calculated to lead to the discovery of admissible evidence.’”8 The objection must

clearly state how the information sought is not relevant to any claim or defense, or how the request

is overbroad, burdensome or oppressive.9 Further, it is improper for parties responding to

discovery to provide responses with the caveat that they are given “subject to and without waiving”

objections. Federal courts have repeatedly recognized that such language is improper and

inconsistent with the Federal Rules.10

When a party claims it would suffer an undue burden or expense, that party is typically in

the best position to explain why, while the party claiming the information is important to resolve

the issues in the case should be able “to explain the ways in which the underlying information

bears on the issues as that party understands them.” FED. R. CIV. P. 26 advisory committee’s notes

to 2015 amendment. Thus, it bears the burden of making a specific objection and showing that

the discovery fails Rule 26(b)’s proportionality calculation by coming forward with specific

information to address the importance of the issues at stake in the action, the amount in

controversy, the parties’ relative access to relevant information, the parties’ resources, the

importance of the discovery in resolving the issues, and whether the burden or expense of the

proposed discovery outweighs its likely benefit.11 “The court's responsibility, using all the

8 Cheshire v. Air Methods Corp, No. 15-933, 2015 WL 7736649, at *2 (W.D. La. Nov. 30, 2015) (quotations omitted).

9 Chevron, 2015 WL 269051, at *3 (noting objections are boilerplate and insufficient if they merely state “the legal

grounds for the objection without: (1) specifying how the discovery request is deficient and (2) specifying how the

objecting party would be harmed if it were forced to respond.”) (citation omitted).

10 Heller v. City of Dallas, 303 F.R.D. 466, 486 (N.D. Tex. 2014) (citations omitted) (“The practice of asserting

objections and then answering ‘subject to’ and/or ‘without waiving’ the objections–like the practice of including a

stand-alone list of general or blanket objections that precede any responses to specific discovery requests–may have

developed as a reflexive habit . . . [but the practice] ‘manifestly confuses (at best) and mislead[s] (at worse), and has

no basis at all in the Federal Rules of Civil Procedure.’”).

11 Mir v. L–3 Commc’ns Integrated Sys., L.P., 319 F.R.D. 220, 226 (N.D. Tex. 2016).

information provided by the parties, is to consider these and all the other factors in reaching a case-

specific determination of the appropriate scope of discovery.” FED. R. CIV. P. 26 advisory

committee’s notes to 2015 amendment.

When a party objects to a request for production, the “objection must state whether any

responsive materials are being withheld on the basis of that objection. An objection to part of a

request must specify the part and permit inspection of the rest.”12 Objections interposed without

also indicating whether any document or information is being withheld are improper.13 Responses

must also clearly state whether any responsive materials are being withheld and the specific basis

for objecting and not producing same.14

C. Rule 36 Admissions

1. Issuing and Responding to Requests for Admission

Rule 36 authorizes a party to request another party “to admit, for purposes of the pending

action only, the truth of any matters within the scope of Rule 26(b)(1)” relating to facts, application

of law to facts, or opinions about either. FED. R. CIV. P. 36(a)(1)(A) (emphasis added). Rule 36

instructs litigants how to answer and object to requests for admission:

If a matter is not admitted, the answer must specifically deny it or state in detail

why the answering party cannot truthfully admit or deny it. A denial must fairly

respond to the substance of the matter; and when good faith requires that a party

qualify an answer or deny only a part of a matter, the answer must specify the part

admitted and qualify or deny the rest. The answering party may assert lack of

knowledge or information as a reason for failing to admit or deny only if the party

states that it has made reasonable inquiry and that the information it knows or can

readily obtain is insufficient to enable it to admit or deny.

12 FED. R. CIV. P. 34(b)(2)(C); Orchestrate HR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex. 2016),

objections overruled sub nom. Orchestratehr, Inc. v. Trombetta, No. 13- 2110, 2016 WL 5942223 (N.D. Tex. Oct. 13,

2016).

13 See Chevron, 2015 WL 269051 at *4 (holding that objections fall woefully short of objecting party’s burden when

party objected to documents and information protected by privilege but did not describe whether any documents were

withheld or the nature of withheld documents).

14 Id. (citation omitted) (“Objections that fail to provide an appropriate basis make it difficult for the parties to even

informally discuss any alleged defects in a discovery request or response in hope of fixing the defects.”).

FED. R. CIV. P. 36(a)(4).

The ground for objecting to a request must be stated. A party must not object solely

on the ground that the request presents a genuine issue for trial.

FED. R. CIV. P. 36(a)(5). The denial of a request for admission “as written” without further

explanation is evasive and non-compliant with Rule 36.15 When a responding party has semantic

objections to how the requests for admission are drafted and its qualified denials are partial in

nature, the party must identify, in good faith, the extent to which it admits the requests for

admission.16

Requests for admission are not principally discovery devices and are not a substitute for

the discovery process used to uncover evidence.17 “In form and substance a Rule 36 admission is

comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial, rather

than to an evidentiary admission of a party.”18 Requests for admissions allow litigants to winnow

down issues before trial and focus their energy and resources on disputed matters.19

2. Deemed Admissions

Rule 37 does not provide for a motion to compel answers to Rule 36 requests for admission,

nor does it contemplate a motion to deem requests admitted.20 Instead, the requesting party may

file a motion to determine the sufficiency of an answer or objection to its requests for admission.

FED. R. CIV. P. 36(a)(6). Unless the court finds an objection justified, it must order that an answer

be served and, if the court finds that an answer is noncompliant with the Federal Rules, it may

order that the matter is admitted or direct the party to serve an amended answer. Id.

15 XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., No. 12–2071, 2014 WL 295053, at *4 (E.D. La. Jan. 27, 2014).

16 Janko v. Fresh Market, Inc., No. 13-648, 2015 WL 4714928, at *4 (M.D. La. Aug. 5, 2015) (citations omitted).

17 In re Katrina Canal Breaches, No. 05-4182, 2007 WL 1852184, at *2 (E.D. La. June 27, 2007) (citations omitted).

18 Am. Auto. Ass'n, Inc. v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1120 (5th Cir. 1991).

19 In re Katrina Canal Breaches, 2007 WL 1852184, at *1 (citing 8A WRIGHT, MILLER & MARCUS, FEDERAL

PRACTICE AND PROCEDURE: CIVIL 2D § 2254 (1994)).

20 VeroBlue Farms USA, Inc. v. Wulf, ___F.R.D. ___, 2021 WL 5176839, at *4 (N.D. Tx. Nov. 8, 2021).

A matter is deemed admitted unless, within 30 days of service, the party to whom the

request is directed provides a written answer or objection addressed to the matter and signed by

the party or its attorney. FED. R. CIV. P. 36(a)(3). A shorter or longer time to respond may be

stipulated to under Rule 29 or ordered by the court. Id. “A deemed admission can only be

withdrawn or amended by motion in accordance with Rule 36(b).”21 A litigant that wishes to avoid

the consequences of failing to timely respond to rule 36 requests for admissions must move the

court to amend or withdraw the default admissions in accordance with the standard outlined in rule

36(b), which provides in pertinent part:22

A matter admitted under this rule is conclusively established unless the

court, on motion, permits the admission to be withdrawn or amended.

Subject to Rule 16(e), the court may permit withdrawal or amendment if it

would promote the presentation of the merits of the action and if the court

is not persuaded that it would prejudice the requesting party in maintaining

or defending the action on the merits. . . .

FED. R. CIV. P. 36(b).

The Court may allow a party to withdraw a deemed admission if same (1) would serve the

presentation of the case on its merits, and (2) not prejudice opposing party who obtained the

admissions. Under the first prong, the court considers whether refusing to permit withdrawal or

amendment would have the practical effect of eliminating any presentation of the merits, whether

the admission is contrary to the record, whether the admission is no longer true because of changed

circumstances, and whether a party has made an honest error.23 Prejudice under the second prong

does not arise simply because the party who obtained the admission will now have to convince the

21 In re Carney, 258 F.3d at 419 (citing Am. Auto. Ass’n v. AAA Legal Clinic, 930 F.2d 1117, 1120 (5th Cir, 1991)

(holding district court may not sua sponte allow for the withdraw or amendment of admissions)).

22 Id.

23 Aircraft Holding Solns., LLC v. Learjet, Inc., 18-0823, 2021 WL 2434840, at *2 (N.D. Tex. June 15, 2021) (citing

Fakhuri v. Farmers New World Life Ins. Co., No. 09-1093, 2010 WL 3701575, at *2 (S.D. Tex. Sept. 16, 2010)

(quoting Le v. Cheesecake Factory Rests. Inc., No. 06-20006, 2007 WL 715260, at *2 (5th Cir. Mar. 6, 2007) (per

curiam) (unpublished opinion))).

fact finder of its truth24 or incur costs of discovery to replace the deemed admissions.25 Rather,

the necessary prejudice relates to the difficulty a party may face in proving its case, such as the

unavailability of key witnesses as a result of the sudden need to obtain evidence with respect to

the questions previously answered by the admission.26 Courts also consider the timing of the

motion, the time remaining before expiration of the discovery deadline, and the diligence of the

party.27 Regardless, even if a party establishes these two factors, the court retains discretion to

deny a request to withdraw an admission.28

III. ANALYSIS

A. Motion to Compel Discovery Responses

Plaintiff’s motion seeks to compel responses to interrogatories, requests for production,

and requests for admission. ECF No. 9. Defendants indicate, and Plaintiff acknowledges, that the

responses have now been produced. See ECF No. 11-2 at 1. Having received the responses,

Plaintiff’s pending motion, which simply seeks responses, is now moot. To the extent Plaintiff

objects to the responses, those issues have not been properly briefed thus precluding resolution at

this time.

24 N. La. Rehab. Ctr., 179 F. Supp. 2d 658, 663 (W.D. La. 2001) (quoting F.D.I.C. v. Prusia, 18 F.3d 637, 640 (8th

Cir. 1994) (internal citations omitted)).

25 Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1314 (8th Cir. 1983).

26 Wild v. St. Tammany Par. Hosp. Serv. Dist. No. 1, No. 19-10931, 2021 WL 6446363, at *2 (E.D. La. Mar. 30, 2021)

(Guidry, J.) (citing Express Lien, Inc. v. RoHillCo Bus. Servs. LLC, No. 13-4889, 2014 WL 1870621, at *2 (E. D. La.

May 8, 2014) (quoting In re Carney, 258 F.3d at 420)); see also Fakhuri, 2010 WL 3701575, at *2.

27 Branch Banking & Trust Co. v. Deutz-Allis Corp., 120 F.R.D. 655, 660 (E.D.N.C. 1988) (denying withdrawal where

party, with due diligence, could have accessed the information needed to respond to request for admissions yet had

failed to do so); N. La. Rehab. Ctr., 179 F. Supp. 2d at 663 (permitting withdrawal when party obtaining the admissions

failed to show that it would not be able to present alternative evidence and adequate time remained before trial to

conduct limited discovery).

28 Williams v. Wells Fargo Bank, N.A., 560 F. App’x 233, 244 (5th Cir. 2014) (citing In re Carney, 258 F.3d at 419-

20).

B. Requests for Admission

Plaintiff served her Requests for Admission on September 31, 2023, rendering same due

on October 31, 2023, which deadline was extended to December 31, 2023, by agreement. See

ECF No. 9-2 at 6, 9. When Plaintiff had not received responses by January 15, 2024, she filed this

motion asking that the court recognize that the admissions have been deemed admitted. ECF No.

9 at 3. In Opposition, Defendant asserts that the court should permit it to withdraw the deemed

admissions so that the case may proceed on the merits and avers that the plaintiff will suffer no

prejudice from the withdrawal. ECF Nos. 10 at 3-5; 11 at 3.

Allowing Defendant to withdraw the deemed admissions is proper. This litigation is in its

early stages, with the discovery deadline nearly six months away.29 Moreover, some of the

requests for admission go to the heart of this matter. ECF No. 10-5. Others involve the existence

of video camera footage of the alleged fall, which Defendant indicates it does not have. Id. at 2.

Holding Plaintiff to her burden of proof is insufficient to establish prejudice. Allowing Defendant

to withdraw the deemed admissions is favored as it will allow for resolution of the case on its

merits rather than procedural error and does not prejudice Plaintiff. Further, no other

circumstances would justify the Court’s exercise of its discretion to deny the request to withdraw

the admissions despite satisfaction of the Rule 36(b) factors.

IV. CONCLUSION

Defendant’s delivery of responses has mooted the motion to compel which simply sought

responses. Because no specific deficiencies in the delinquent responses were identified and briefed

with initial and opposition memoranda, the matter is not ripe for resolution. Defendant is,

29 See Scheduling Order at ECF No. 8 at 2 (establishing a July 23, 2024 discovery deadline).

however, instructed to review the Court’s discussion in Section II(B) and correct any deficiencies

to avoid potential sanctions incident to a motion to compel.

Accordingly,

IT IS ORDERED that Plaintiff's Motion to Compel and Strike Untimely Denials (ECF No.

9) is DENIED WITHOUT PREJUDICE and Defendant’s Motion to Withdraw Admissions (ECF

No. 10) is GRANTED.

New Orleans, Louisiana, this 7th day of February, 2024.

UNITED STATES MAGISTRATE JUDGE

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