The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
K. K.-M.
Individually and as Kinship
Legal Guardian of the minor
children R.M. and A.W
Plaintiff,
v.
NEW JERSEY DEPARTMENT OF No. 1:17-cv-11579-NLH-MJS
EDUCATION; NEW JERSEY OFFICE OPINION & ORDER
OF ADMINISTRATIVE LAW;
DOMINIC ROTA, individually
and in his official capacity;
GLOUCESTER CITY BOARD OF
EDUCATION d/b/a
GLOUCESTER CITY PUBLIC
SCHOOLS; and, BLACK HORSE
PIKE REGIONAL SCHOOL DISTRICT
BOARD OF EDUCATION
Defendants.
APPEARANCES
Robert Craig Thurston, Esq.
Thurston Law Offices LLC
433 River Road
Suite 1315
Highland Park, NJ 08904-1940
Attorney for Plaintiff.
Victoria Simoes Beck, Esq.
William Clawges Morlok, Esq.
Park McCay P.A.
9000 Midlantic Drive
Suite 300
Mount Laurel, NJ 08054
Attorneys for Defendant Gloucester City Board of Education
HILLMAN, District Judge
WHEREAS, this action involves claims against the State of
New Jersey and two school districts for alleged violations of
the Individuals with Disabilities Education Act, 20 U.S.C. §
1400, et seq., § 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794, et seq., and Title II of the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (ECF No.
133);
WHEREAS, on June 8, 2022, Plaintiff served Defendant
Gloucester City Board of Education with four hundred and thirty-
five (435) Requests for Admissions (RFA) under Rule 36 of the
Federal Rules of Civil Procedure; and
WHEREAS, on September 8, 2022, Plaintiff filed a partial
motion for summary judgment against Defendant Gloucester,
utilizing said Defendant’s failure to respond to the RFAs as
admissions of facts for purposes of obtaining judgment (ECF No.
159); and
WHEREAS, on October 20, 2022, Defendant Gloucester served
its responses to the RFAs upon Plaintiff, and filed a Motion for
Extension of Time to do so with the court that same day (ECF No.
163); and
WHEREAS, Defendant Gloucester timely filed (ECF No. 161)
its opposition to Plaintiff’s Partial Motion for Summary
Judgment on October 24, 2022 (ECF No. 165), which Plaintiff
motioned to strike the following day (ECF No. 166); and
WHEREAS, in his discretion, United States Magistrate Judge
Matthew J. Skahill construed Defendant Gloucester’s Motion for
Extension of Time as one to withdraw the admissions and
ultimately granted same (ECF No. 189); and
WHEREAS, Plaintiff has appealed Judge Skahill’s decision on
the bases that it was clearly erroneous and contrary to law,
primarily because of the lateness of Defendant Gloucester’s Rule
36(b) request and because said Defendant failed to abide by
Federal and Local Rules of Civil Procedure regarding motion and
discovery practice, as well as Judge Skahill’s Standing Orders
regarding same, thereby causing prejudice to Plaintiff (ECF No.
190); and
WHEREAS, upon appeal of a Magistrate Judge’s decision,
This Court reviews the [ ] Order under the clearly
erroneous standard. A Magistrate Judge’s adjudication
of a non-dispositive motion will be set aside only if
the order is found to be clearly erroneous or contrary
to law. To be contrary to law, a Magistrate Judge’s
order must have “misinterpreted or misapplied
applicable law.” A Magistrate Judge’s order is
clearly erroneous only “when although there is
evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
Cornell Capital Partners, L.P. v. Bad Toys, Inc., Civil No. 05-
5700, 2008 U.S. Dist. LEXIS 130179, at *2 n.3 (D.N.J. Feb. 23,
2007) (internal citations omitted); and
WHEREAS, Federal Rule of Civil Procedure 36 provides:
Effect of an Admission; Withdrawing or Amending It. 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. An admission under
this rule is not an admission for any other purpose
and cannot be used against the party in any other
proceeding.
Fed.R.Civ.P. 36(b); and
WHEREAS, Fed.R.Civ.P. 16(e) is not implicated here, as
discovery in this matter remains ongoing and a trial date has
not been set; and
WHEREAS, “courts have great discretion in deciding whether
to withdraw or amend an admission.” United States v. Branella,
972 F. Supp. 294, 301 (D.N.J. 1997) (citation omitted); and
WHEREAS, “[w]hile Rule 36 does not authorize a district
court to unilaterally withdraw or amend an admission, it does
not specify the precise form a motion to withdraw or amend must
take.” Percella v. City of Bayonne, No. 21-1504, 2022 U.S. App.
LEXIS 17037, at *5 (3d Cir. May 25, 2022); and
WHEREAS, in its discretion, a court may excuse a mistitled
motion under Rule 36 and consider it as one to withdraw
admissions, as “a disposition on the merits is preferred over a
decision based upon procedural technicalities.” Sunoco, Inc. v.
MX Wholesale Fuel Corp., 565 F. Supp. 2d 572, 577 (D.N.J. 2008);
and
WHEREAS, “[w]here a party would be precluded from discovery
as a result of the withdrawal or amendment of previously
admitted statements on the eve of trial, that party would suffer
prejudice if she had relied on the admissions in preparing for
trial.” Branella, 972 F. Supp. at 301 (emphasis added); and
WHEREAS, “[t]he court must also consider whether amendment
or withdrawal of the admission will subserve the presentation of
the merits of the case. That is, where possible, an action
should be resolved on its merits.” Id. (citation omitted)
(emphasis added); and
WHEREAS, based upon: (1) the fact that discovery in this
case remains ongoing and trial has not been scheduled; (2) the
admissions contradict denials in Defendant Gloucester’s Answer
to Plaintiff’s Third Amended Complaint; and, (3) acceptance of
the admissions upon which Plaintiff’s summary judgment motion
against Defendant Gloucester is predominantly based would
subvert presentation of the merits of the case (a critical
aspect that Plaintiff herein does not address in its brief),
this Court finds Judge Skahill was wholly within his discretion
to grant withdrawal of the admissions; and
WHEREAS, Judge Skahill’s ruling was not clearly erroneous
or contrary to law,
THEREFORE, it is on this 14th day of July 2023,
ORDERED that Plaintiff’s Appeal of the Magistrate Judge’s
Decision (ECF No. 190) be, and the same hereby is, DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s Motion for Partial
Summary Judgment Against Defendant Gloucester (ECF No. 159) is
DENIED without prejudice; and
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike
Defendant Gloucester’s Brief in Opposition to Plaintiff’s Motion
for Partial Summary Judgment (ECF No. 166) is DENIED as moot.
/s/ Noel L. Hillman
At Camden, New Jersey U.S.D.J.