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DeLong v. Merrill - 9/27/2013

Arizona Court of Appeals Division Two Holds That a Trial Court Should Allow a Party to Respond to Requests for Admission Late if Permitting the Late Responses Will Promote Presentation of the Merits and the Party Obtaining the Admission Is Not Prejudiced.


Plaintiff DeLong loaned Defendant Merrill money to pay past due taxes on her home.  DeLong claimed that Merrill agreed to repay the loan in full, at six percent interest, by July 2, 2009, and that if Merrill did not she would lose the property to DeLong.  Merrill claimed that she attempted to contact DeLong starting in May 2009 to repay him, but was not able to locate him until June 2010, at which time he refused to accept payment on the loan.  DeLong filed suit to obtain the property, and Merrill counterclaimed by alleging that she was entitle to the property and that she was entitled to damages.  In March 2011, DeLong served requests for admission on Merrill, to which she did not respond.  In October 2011, DeLong moved for summary judgment based on his argument that the requests for admission should be deemed admitted.  Merrill responded to the discovery requests and opposed the motion.  The superior court refused to allow Merrill to respond to the requests for admission and granted DeLong summary judgment as a sanction.  Merrill’s two remaining counterclaims for damages were tried to a jury, which found for DeLong.  Merrill timely appealed.  DeLong did not appear in the Court of Appeals.

The Arizona Appeals Court reversed and remanded.  The Court first addressed whether the superior court erred by refusing to allow Merrill to respond to the requests for admission.  Relying on federal courts’ interpretations of Fed. R. Civ. P. 36(b), the Court applied an abuse-of-discretion standard and adopted the federal standard for permitting late responses, which requires a court to assess whether (1) the presentation of the merits will be promoted, and (2) the party obtaining the admission is not prejudiced.  Applying these standards, the Court held that the superior court abused its discretion.  Permitting Merrill to file late responses would have promoted presentation of the merits and DeLong suffered no prejudice because discovery was ongoing, no trial date had been set, DeLong never moved to compel or ever complained about not receiving the responses, and DeLong could not identify any evidence that became inaccessible as a result of the delay.  Furthermore, the delay was inadvertent and not intentional.

Because the Court reversed on the basis of the superior court’s refusal to allow Merrill to file late discovery responses, it also reversed the summary judgment granted as a sanction.  It further explained that summary judgment is not a proper sanction for failure to respond to discovery requests.  

Judge Espinosa authored the opinion; Judges Kelly and Eckerstrom concurred.

Posted by: Sharad H. Desai

Posted On: 10/9/2013