United States District Court, S.D. Alabama, Southern Division
K. DuBOSE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Amended Motion
for Summary Judgment (Docs. 20, 22),  Defendant Response (Doc. 39)
and Plaintiff's Reply (Docs. 32, 48).
case stems from Defendant Hemacare Plus, Inc.
(Hemacare)'s non-payment of approximately $667, 565.69
for specialty pharmaceutical products from Plaintiff Cardinal
Health 108, LLC (Cardinal) in 2015. (Docs. 1, 1-1). In its
February 25, 2016 Complaint, Cardinal asserts six (6) counts
against Hemacare for: goods sold/delivered (Count I); open
account (Count II); account stated (Count III); unjust
enrichment (Count IV); breach of contract (Count V); and
attorneys' fees/costs (Count VI). On April 13, 2016, Hemacare
filed an untimely answer denying all claims, and a three
(3) count third-party complaint for fraud, conversion and
unjust enrichment against Janis Spratlin (Spratlin), its
former bookkeeper, alleging that she is responsible for the
amounts owed as she exceeded her authority by ordering
specialty pharmaceutical products from Cardinal, billing
insurance carriers and diverting the proceeds from those
transactions to her personal account. (Doc. 6).
1, 2016, the Rule 16(b) Scheduling Order issued, setting the
close of discovery as February 24, 2017. (Doc. 10). On July
15, 2016, Cardinal served its first set of discovery on
Hemacare, including requests for admission and
interrogatories. (Docs. 19, 22-2, 22-3 (Aff. Jackson at
3-4)). Hemacare did not provide responses to Cardinal's
discovery within 30 days of service as required under Rules
34 and 36. (Doc. 22-3 (Aff. Jackson at 3-4)). On September
26, 2016 Cardinal moved for summary judgment -- without any
discovery responses from Hemacare -- asserting that summary
judgment should be granted in its favor because
Hemacare's failure to respond means that the facts
contained therein are deemed admitted.
October 7, 2016, Hemacare provided
untimely responses to the requests for production
and interrogatories, but still failed to respond to the
requests for admission. (Doc. 25). In the interrogatory
responses, Hemacare denies that Spratlin had authority to
make the purchases from Cardinal. (Doc. 39 at 27-31 at ##4-6,
10-11, 15). On summary judgment, Hemacare neither references
its failure to timely respond to the requests for admission
nor opposes summary judgment on that basis. To date, Hemacare
has not responded to Cardinal's requests for admissions.
(See also Doc. 48-1 (2nd Aff. Jackson)).
Requests for Admission
seeks summary judgment based on Hemacare's failure to
timely file responses to its requests for admission asserting
that, as a matter of law, Hemacare's failure means the
admissions are undisputed and “deemed admitted”
in this case.
36(a)(3) of the Federal Rules of Civil Procedure
provides that “[a] matter is deemed admitted unless,
within 30 days after being served, the party to whom the
request is directed serves on the requesting party a written
answer or objection addressed to the matter and signed by the
party or its attorney.” Rule 36(b) specifies further:
(b) 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
regard to such circumstances, the Eleventh Circuit in
Garmley v. Cochran, 651 Fed.Appx. 933, 936
(11th Cir. 2016) (emphasis added) concluded as
…The district court did not abuse its discretion
by deeming admitted the requests for
admission....neither Garmley nor Southern responded to
Henderson's requests for admissions or moved the district
court to withdraw the admissions. We have previously
found that a party's failure to respond to requests for
admission constituted admissions of the same, and we see no
reason to depart from that rule today. See, e.g., Perez v.
Miami-Dade Cty., 297 F.3d 1255, 1263 (11th Cir.
in Perez v. Miami-Dade Cty., 297 F.3d 1255,
1263-1264 and 1268 (11th Cir. 2002) (footnotes and
citations omitted, emphasis added), the Eleventh Circuit
Rule 36… governs requests for
admissions…The purpose of the rule is “to
expedite the trial and to relieve the parties of the cost of
proving facts that will not be disputed at
trial.”… If a party fails to respond
within thirty days, then “[t]he matter is
admitted.” Id….Once the matter
is admitted, Rule 36(b) provides that it is
“conclusively established unless the court on motion
permits withdrawal or amendment of the
….when a party uses the rule to establish uncontested
facts and to narrow the issues for trial, then the rule
functions properly. When a party…uses the rule to
harass the other side or, as in this case, with the wild-eyed
hope that the other side will fail to answer and therefore
admit essential elements (that the party has already denied
in its answer), the rule's time-saving function ceases;
the rule instead becomes a weapon, dragging out the
litigation and wasting valuable resources….
akin to the facts of this case, the court in Jacobs v.
Electronic Data Sys. Corp., 2006 WL 3742202, *2-3 (N.D.
Ala. Dec. 18, 2008) (emphasis added, footnotes omitted)
concluded -- on summary judgment -- that unanswered requests
for admission were admitted:
…Jacobs's Title VII claim…cannot survive
summary judgment....Jacobs has filed no motion
to withdraw the admissions or set aside the…order. Nor
did Jacobs even address the issue in her brief in
opposition to summary judgment, despite the defendants having
argued that summary judgment was warranted on the basis of
the admissions....As Rule 36(b) expressly provides
for withdrawal only “on motion, ” the court will
not sua sponte withdraw Jacobs's admissions or set aside
…Jacobs has opposed summary judgment with other
evidence that tends to contradict the admissions.
Jacobs's deposition testimony is generally inconsistent
with her admissions… But admissions are unlike
other evidence in that a party cannot rebut its own
admissions by introducing evidence that contradicts it. In re
Carney, 258 F.3d 415, 420 (5th Cir.2001) (“Since
Rule 36 admissions, whether express or by default, are
conclusive as to the matters admitted, they cannot be
overcome at the summary judgement [sic] stage by
contradictory affidavit testimony or other evidence in the
summary judgment record.”); United States v.
Kasuboski, 834 F.2d 1345, 1350 (7th Cir.1987); see
also 8A Wright, Miller & Marcus, § 2264, at
572-74. Once an issue is deemed admitted, the admission
is conclusive unless withdrawn upon motion to the court.
Perez v. Miami-Dade County, 297 F.3d 1255, 1264
(11th Cir.2002); United States v. 2204 Barbara Lane,
960 F.2d 126, 129 (11th Cir.1992); Stubbs v.
Comm'r, 797 F.2d 936, 937-38 (11th Cir.1986) (per
As stated, the court's role at the summary-judgment stage
is not to weigh the evidence or to determine the truth of the
matter, but rather to determine only whether a genuine issue
exists for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249…(1986). If this case were to
proceed to trial, Jacobs would not be permitted to introduce
evidence to rebut the admissions she has already made during
the discovery phase of this litigation. Williams v. City of
Dothan, 818 F.2d 755, 762 (11th Cir.1987); see also
Am. Auto. Ass'n, 930 F.2d at 1120. ...These
admissions preclude recovery....Hulsey, 367 F.3d at
1244. Accordingly, there is no genuine issue of material fact
…and EDS is entitled to judgment as a matter of law.
as set forth by the Fifth Circuit in In re Carney,
258 F.3d 415, 420-421 (5th Cir. 2001) (footnotes
omitted and emphasis added):
Federal Rule of Civil Procedure 56(c) specifies that
“admissions on file” can be an appropriate basis
for granting summary judgment….Since Rule 36
admissions, whether express or by default, are conclusive as
to the matters admitted, they cannot be overcome at the
summary judgement [sic] stage by contradictory affidavit
testimony or other evidence in the summary judgment
record... Instead, the proper course for a litigant
that wishes to avoid the consequences of failing to timely
respond to Rule 36 requests for admission is to move the
court to amend or withdraw the default admissions in
accordance with the standard outlined in Rule 36(b).
…[Defendant] did not avail…[itself] of the
procedural mechanism for attempting to avoid the effect
of…default. Consequently, application of this
Court's precedent applying the plain language of Rule 36
compels us to conclude, on the record before us, that the
validity of the…claim has been conclusively
established. Moreover, this Court has affirmed a grant
of summary judgment based on default admissions coupled with
a district court's denial of a request to withdraw those
admissions.…[Defendant's] failure to
move…to withdraw his admission prior to or
concurrently with the….motion for summary judgment
simply compels affirmance of the grant of summary
We recognize the potential harshness of this result. The
failure to respond to admissions can effectively deprive a
party of the opportunity to contest the merits of a case.
This result, however, is necessary to insure the orderly
disposition of cases; parties to a lawsuit must comply with
the rules of procedure. In addition, the harshness is
tempered by the availability of the motion to withdraw
admissions, a procedure which [….] did not
Kasuboski, 834 F.2d 1345.
of…default admissions, we need not explore in detail
the…. alternative holding that summary judgement [sic]
was appropriate based on the absence of genuine material
in the Sixth Circuit (governing Tennessee law, and here the
substantive claims are governed by the law of Tennessee as
explained infra), “…a request for
admissions which is not responded to within the applicable
time period ‘is conclusively established unless the
court on motion permits withdrawal or amendment of the
admission.'” Kerry Steel, Inc. v. Paragon
Indus., 106 F.3d 147, 153 (6th Cir. 1997).
Additionally, a party may seek to request an admission as
deemed admitted on “ultimate facts” and even
where the request is “dispositive of the entire
case.” Campbell v. Spectrum Automation Co.,
601 F.2d 246, 253 (6th Cir. 1979) (citations
omitted). Courts within the Sixth Circuit and Tennessee state
courts routinely enforce Rule 36 when faced with unanswered
requests for admission.
light of the circumstances of this case and the relevant Rule
36 law, the Court finds that Cardinal's requests for
admission are deemed admitted by Hemacare. Hemacare has had
numerous opportunities to respond to Cardinal's requests,
but has failed to do so. Hemacare has made no attempt to
avoid the consequences of failing to timely respond to the
requests - indeed not even acknowledging its failure.
Hemacare has neither mentioned nor addressed the requests on
summary judgment, much less endeavored to explain or justify
its failure to file (or timely file) responses. Hemacare has
not sought any relief in this Court concerning the requests
via withdrawal or amendment (or otherwise). Cardinal would be
unfairly prejudiced if Hemacare were permitted - at this
juncture -- to respond to the requests for admission, as
Cardinal has already moved for summary judgment on the
grounds that the facts asserted in the requests have been
deemed admitted by Hemacare.
is also no indication that Cardinal is using Rule 36 requests
to “harass” Hemacare or as “a weapon”
“with the wild-eyed hope” that it would
“fail to answer and…admit essential
elements.” Perez, 297 F.3d at 1268. Rather,
Hemacare simply ignored the requests for admissions, and has
done so to its detriment.
the following facts/allegations are deemed admitted by
Hemacare and will be treated as undisputed on summary
A to the Complaint
are true and correct copies of the Invoices Cardinal sent to
Hemacare from June-December 2015.
-Hemacare received copies of Ex. A.
-Hemacare never objected in writing to Ex. A.
-Cardinal delivered to Hemacare the specialty pharmaceuticals
in Ex. A.
-Hemacare accepted the specialty pharmaceuticals delivered by
Cardinal in Ex. A.
-Hemacare never refused delivery or returned any of the
specialty pharmaceuticals from Cardinal in Ex. A.
-Hemacare used the specialty pharmaceuticals delivered by
Cardinal in Ex. A.
-Hemacare has not paid Cardinal for the specialty
pharmaceuticals in Ex. A.
-Hemacare has not paid the amounts due and owing in Ex. A.
-Hemacare has paid certain invoices received from Cardinal
prior to June 2015.
B to the Complaint
-Ex.B to the Complaint is a true and correct copy of the
Terms and Conditions of Sale that accompanied the Invoices
sent to Hemacare from June-December 2015.
-Hemacare received copies of the Terms and Conditions of Sale
- Ex. B.
C to the Complaint
Ex. C to the Complaint is a true and correct copy of the
Account Statement showing the amounts due and owing in Ex. A.
-Janis Spratlin was the bookkeeper for Hemacare during the
relevant time period.
-During the relevant time period, Spratlin's job
responsibilities for Hemacare included ordering and/or
purchasing specialty pharmaceuticals from suppliers.
-During the relevant time period, Spratlin had authority to
order specialty pharmaceuticals from Cardinal.
motion will be assessed in light of these admissions, as set
forth in Doc. 22-2.
Findings of Fact
case concerns Hemacare's failure to pay Cardinal
approximately $667, 565.69 for specialty pharmaceutical
products Cardinal supplied starting in May 2015.
Specifically, from June to December 2015, Hemacare's
employee, bookkeeper Janis Spratlin (Spratlin), ordered
certain specialty pharmaceutical products as set forth in
Cardinal's Invoices. (Docs. 22-1, 22-2 at #1, 14).
Spratlin's job duties included ordering and purchasing
such products from suppliers like Cardinal. (Doc. 22-2 ...