Hatami v. R. K. Chevrolet, Inc.

43 Va. Cir. 462, 1997 Va. Cir. LEXIS 414

• Court: Virginia Beach County Circuit Court
• Decided: October 20, 1997
• Docket: Case No. (Law) CL97-1089
• Status: Published

Opinion

By Judge Jerome B. Friedman

The defendants have filed a request for an extension of time in which to respond to the plaintiffs two sets of requests for admissions. The parties do not dispute that defendants responded to the requests for admission more than twenty-one days after they were filed, in violation of Rule 4:11 of the Rules of the Supreme Court of Virginia. Defendant Marone’s responses were two days late, while defendant R. K. Chevrolet’s responses were nine days late.

Both defendants now request that the court extend the time for their responses so that they may be deemed timely filed. Plaintiff objects to the extension of time and requests that all of the requests for admission be deemed admitted, pursuant to Rule 4:11(a).

The plain terms of Rule 4:11(a) provide:

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 21 days after service of die request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney ... . [Emphasis added.]

Clearly, Rule 4:11 grants to the court the authority to permit a longer period of time in which to answer or object to a request for admission. The plaintiff does not argue that die court lacks such authority. Instead, the plaintiff argues that the court, in its discretion, should decline to permit an extension in this case because of the defendants' alleged “bad faith” conduct throughout the discovery process. Specifically, the plaintiff points to defendants’ numerous objections to the requests for admission, which plaintiff characterizes as “frivolous,” as well as defense counsel’s instruction to defendants not to answer certain questions during depositions.

The court is of the opinion that when ruling on this type of request for an extension of time, the court should consider the same factors enumerated in Rule 4:11(b) tor requests to withdraw or amend admissions. See Erie Ins. Group v. Emert, 33 Va. Cir. 269 (Fairfax County, 1994). Applying those same principles to toe case at bar, toe court finds that toe presentation of toe merits time. Further, toe plaintiff has Med to satisfy toe cotut that permitting toe extension would prejudice him in toe prosecution of his action. This matter is scheduled tor trial on February II, 1998, leaving toe parties ample time to resolve toe defendants’ objections to toe requests and permit plaintiff to properly prepare Ms case.

To toe extent that plaintiff alleges that defendants' conduct in objecting to toe requests tor admission and refusing to answer deposition questions constitutes “bad faith,” it is noted that Rule 4:12 provides for toe imposition of sanctions in appropriate circumstances. Consequently, should plaintiff wish to pursue his claim of bad faith, another more appropriate avenue for doing so exists under Virginia rules.

Boto counsel are advised that toe court has received toe parties' briefs in support of and in opposition to toe pending demurrer. The court continues to have toe demurrer under advisement and will issue its ruling by letter opinion as soon as possible.