West Bay Builders, Inc. v. United States

80 Fed. Cl. 700, 2008 U.S. Claims LEXIS 70, 2008 WL 724497
CourtUnited States Court of Federal Claims
DecidedMarch 14, 2008
DocketNo. 04-1140C
StatusPublished
Cited by9 cases

This text of 80 Fed. Cl. 700 (West Bay Builders, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West Bay Builders, Inc. v. United States, 80 Fed. Cl. 700, 2008 U.S. Claims LEXIS 70, 2008 WL 724497 (uscfc 2008).

Opinion

RULING ON PLAINTIFF’S MOTION TO WITHDRAW ADMISSIONS

SWEENEY, Judge.

Before the court are Plaintiffs Motion to Withdraw Admissions (“motion”), Plaintiffs Declaration of Timothy L. Mclnerney in Support of West Bay’s Motion to Withdraw Admissions and accompanying exhibits, Defendant’s Response to Plaintiffs Motion to Withdraw Admissions, and Plaintiffs Reply in Support of Motion to Withdraw Admissions. Plaintiff also filed a Request for Judicial Notice in Support of Plaintiffs Motion to Withdraw Admissions, wherein it asks that the court take judicial notice of several pleadings and the dates on which they were filed. In its motion, plaintiff seeks an order, pursuant to Rule 36(b) of the Rules of the United States Court of Federal Claims (“RCFC”), permitting it to withdraw admissions to defendant’s requests for admission numbered 10 and 13, which were originally propounded on May 3, 2007. Plaintiff states that, due to an “inadvertence” by its counsel, it never received defendant’s requests for admission and, as a result, never responded to them. Pl.’s Mot. Withdraw Admiss. (“Pl.’s Mot.”) 4. Consequently, the matters set forth in defendant’s requests for admission were automatically admitted. Id.; see also RCFC 36(a) (deeming a matter admitted unless the responding party provides a written answer within thirty days or within a time agreeable to the parties or to the court). The court deems oral argument on plaintiffs motion unnecessary. For the reasons set forth below, plaintiff failed to satisfy the two-part test set forth in RCFC 36(b) to support withdrawal of deemed admissions; consequently, its motion is denied.

I. BACKGROUND

This action arises out of a fixed-price contact awarded to plaintiff, a general contractor, by the Department of Veterans Affairs, Palo Alto [California] Health Care System, Martinez Division, for various renovations to Building 90, Livermore Division. Compl. II4; PL’s Mot. Summ. J. 1-2; PL’s Mot. 3. These renovations included general construction, demolition, alterations, mechanical and electrical work, installation of utility systems, removal of asbestos, and other work. Compl. H 5; PL’s Mot. Summ. J. 2. At issue in this case are the specifications related to floor sealant, Def.’s Cross-Mot. Summ. J. Resp. PL’s Mot. Summ. J. 1-2, and whether plaintiff is entitled to recover monies incurred for the application of concrete moisture sealant, id. at 4; PL’s Mot. Summ. J. 1; PL’s Mot. 3.

On June 14, 2007, the parties informed the court that discovery was complete and expressed the belief that this case could be resolved by motions for summary judgment because “the dispositive issue in this dispute is contract interpretation.” PL’s Mot. 3. Briefing on the parties’ cross-motions was completed on December 3, 2007. On January 16, 2008, plaintiff filed the instant motion seeking to withdraw admissions because defendant’s “cross-motion and [its] proposed findings of uncontroverted fact rely on the deemed admissions to the Defendant’s Requests for Admissions No. 10 and No. 13.” Id. at 4.

Defendant had propounded requests for admission on May 3, 2007. Id. at 3; PL’s Decl. Timothy L. Mclnerney Supp. West Bay’s Mot. Withdraw Admiss. (“Mclnerney Decl.”) If 2; id. at Ex. B. According to plaintiff, “inadvertences” resulted in its counsel’s failure to (1) forward these requests for admission to plaintiff, and (2) calendar a response date to the requests for admission. Mclnerney Decl. II4; see also PL’s Mot. 4 (indicating that plaintiff never responded to defendant’s requests for admission because plaintiffs counsel never forwarded them to plaintiff). Plaintiff submits that the matters contained in the requests, which were deemed admitted because plaintiff failed to respond within thirty days after service of the requests, see RCFC 36(a), are “part true and part false,” PL’s Mot. 4; see also PL’s Reply Supp. Mot. Withdraw Admiss. (“PL’s Reply”) 1, 4 (indicating that both requests [702]*702are not factually accurate). It represents that “[i]t was not until October 23, 2007 that West Bay and its attorneys discover[ed] that West Bay had failed to timely respond to the Defendant’s Requests.” Pl.’s Mot. 4; see also Mclnerney Decl. 11115-6 (indicating that defendant filed its cross-motion for summary judgment and proposed findings of uncontro-verted fact on October 23, 2007, that both filings “rely on the deemed admissions,” and that counsel was unaware until October 23, 2007, that plaintiff had failed to provide a timely response).

A. Request for Admission Number 10

Defendant’s request for admission number 10 states:

Admit that the contract required West Bay to reduce moisture emission levels to within 3.0 lbs.

Mclnerney Decl. Ex. B. Plaintiff argues that “the alleged fact in the Defendant’s Requests for Admission No. 10 is a legal conclusion or ultimate fact in this litigation.” Pl.’s Mot. 5. Moreover, plaintiff states that ‘West Bay would have not admitted to the ultimate fact stated in Request No. 10 if not for the inadvertence of its attorneys, because doing so would make West Bay’s entire claim against the Defendant moot.” Id. at 5. Plaintiff emphasizes that it adopts a position that the contract required it to reduce moisture emission levels to within 3.0 lbs “only if the testing of the moisture emission levels is 15 lbs or more.” Id. at 6; Pl.’s Reply 1. Furthermore, plaintiff argues that request for admission number 10 “is so vague and ambiguous” that it is subject to more than one interpretation, and that “withdrawal of West Bay’s automatic admission to Request No. 10 will help clarify and aid in the presentation of the merit of the case____” Pl.’s Reply 2.

B. Request for Admission Number 13

Defendant’s request for admission number 13 states:

Admit that the flooring manufacturer would not guarantee its product if it was installed over a substrate which has more than 3.0 lbs moisture emission.

Mclnerney Decl. Ex. B. Plaintiff argues that “the alleged fact contained in Request No. 13 directly contradicts the documents cited by the Defendant in its cross-motion for summary judgment,” Pl.’s Mot. 6, and avers that West Bay’s automatic admission to this false statement harms the Court’s determination of the merit of the case,” id. at 7. Plaintiff states that defendant argues, by virtue of the automatic admission of request for admission number 13, that plaintiff failed to follow the flooring manufacturer’s warranty and installation requirements. Id. Plaintiff claims that it has demonstrated that no such warranty requirement exists under the manufacturer’s warranty, thereby rendering request for admission number 13 “factually wrong.” Id.; Pl.’s Reply 3. Additionally, plaintiff states that “the flooring manufacturer’s warranty is a non-issue in this litigation.” PL’s Mot. 7.

II. LEGAL STANDARD

A. RCFC 36

RCFC 36, like its counterpart Rule 36 of the Federal Rules of Civil Procedure (“FRCP”), governs requests for admission.1 Pursuant to subsection (a) of the rule, a party

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Bluebook (online)
80 Fed. Cl. 700, 2008 U.S. Claims LEXIS 70, 2008 WL 724497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-bay-builders-inc-v-united-states-uscfc-2008.