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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
BBI LOGISTICS, LLC, Case No. 22CV004222
Hon. J. Brown
Plaintiff,
DEFENDANT TRAVELERS PROPERTY
Vv CASUALTY COMPANY OF AMERICA’S
OPPOSITION TO PLAINTIFF’S MOTION
GRS TRANSPORT, INC. and FOR RECONSIDERATION REGARDING
TRAVELERS PROPERTY PLAINTIFF’S MOTION FOR LEAVE TO
CASUALTY COMPANY OF FILE A RESPONSE TO TRAVELERS’
AMERICA, REQUEST FOR ADMISSIONS AND
MEMORANDUM CONTRA PLAINTIFE’S
Defendants. MOTION
eR ROK ROK
NOW COMES Defendant, Travelers Property Casualty Company of America
(“Travelers”), by and through its attorneys, Gregory, Meyer & Chapnick, P.C., and for its
Opposition to Plaintiff's Motion for Reconsideration Regarding Plaintiff's Motion for Leave to
File a Response to Defendant Travelers’ Request for Admissions states that for the reasons set
forth in the attached Memorandum Contra, Plaintiffs 11-hour motion should be denied. The
Court may not “reconsider” its entry of an order confirming the automatic operation of Civ. R.
36(A) that was entered on March 8, 2023 (over 5 months ago); Plaintiff has not demonstrated any
grounds to warrant excusing its failure to either timely file its answers to the Requests for
Admission in the first place and, more importantly, has demonstrated no excuse for its 5-month
delay, waiting until after discovery had closed and Travelers had filed it motion for summary
judgment, to seek any sort of relief from the initial failure; and where Plaintiffs proposed relief
would significantly prejudice Travelers and adversely impact this Court as well
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WHEREFORE, Defendant, Travelers Property Casualty Company of America,
respectfully requests that this Honorable Court deny Plaintiff's motion in its entirety and further
award Travelers its costs and attorney fees expended in having to respond to this motion.
MEMORANDUM CONTRA OF DEFENDANT TO PLAINTIFF’S MOTION FOR
LEAVE T' ILE A RESPONSE TO TRAVEL UEST FO! MISSIO-
I FACTUAL AND PROCEDURAL BACKGROUND
The following facts, most of which were set forth and supported by documentary evidence
in Travelers’ February 9, 2023 Motion to Deem Request for Admissions Admitted and to Compel
Responses to its First Set of Interrogatories and Request for Production of Documents and Rule
26(a) Initial Disclosures, as well as Travelers’ March 3, 2023 Response to Plaintiff's Motion for
Leave to File Belated Discovery Responses, remain undisputed by Plaintiff. Plaintiff filed this
action on or about June 21, 2022. Plaintiff’s current attorney has been counsel of record since
November 1, 2022. Travelers served Requests for Admission on Plaintiff on December 1, 2022 in
order to identify the agreed facts and narrow the issues in this straightforward $52,000 insurance
coverage case. Under Civ. R. 36 (A)(1), Plaintiff had 28 days (until December 29th) to serve its
answers or objections to avoid the Requests being automatically deemed admitted as mandated by
that rule. On December 14, 2022, the parties mutually agreed to extend the time for Plaintiff to
respond to the Requests for nearly another month, until January 27, 2023. When Plaintiff failed to
meet that extended deadline, on January 31, 2023, Travelers gave Plaintiff until February 3, 2023
to serve its Answers to the Requests for Admission before Travelers would seek an Order deeming
the Requests admitted. Plaintiff failed to meet that deadline as well. Travelers did not file its
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Motion until February 9, 2023, affording Plaintiff even more time to avoid the consequences of its
failure to serve its answers. !
On February 13, 2023, Plaintiff served on Travelers a “Motion for Leave to File a Response
to Defendant Travelers’ Request for Admissions” claiming, as it does now, that Plaintiffs counsel
was too busy to timely file the Request for Admission Answers and requesting an additional 14
days in which to do so. Plaintiffs current motion is a rehash of that February 13, 2023 motion
which Plaintiff now avers was inadvertently not filed until February 15, 2023.? Plaintiff claims it
disregarded its own Motion seeking leave and unilaterally filed Answers to the Requests for
Admission on February 13, 2023 (10 days after the twice-extended deadline had passed and 4 days
after the filing of Travelers’ Motion). The Court never granted Plaintiff leave to file late answers
The Court entered its Order deeming the Requests for Admission admitted on March 8, 2023.
Plaintiff remained silent for the next 5 months. It sought no relief from that Order which
implicitly denied Plaintiffs Motion for Leave. Nor did Plaintiff take any further action to seek an
express ruling on its Motion. Months passed. Pursuant to the Court’s December 7, 2022, Order,
all discovery in this matter closed on June 30, 2023. Plaintiff continued to remain silent regarding
' As evidenced by Travelers’ Motion and the Court’s subsequent March 8, 2023, Order, Plaintiff’s
failure to timely serve Answers to Requests for Admission was not Plaintiff’s only failure to
comply with discovery. Plaintiff had also failed to respond to Travelers’ outstanding Interrogatories
and Request for the Production of Documents, and further failed to serve its Initial Disclosures
Travelers’ February 9, 2023 Motion therefore also sought, pursuant to Rule 37, to compel
responses to this discovery too. The Court’s March 8, 2023 Order granted Plaintiff up to 7 days in
which to serve its answers to this other discovery as well as the Initial Disclosures
? Both motions state:
Defendants have filed a motion seeking to have their complex request for
admissions deemed admitted. The undersigned, a solo practitioner and substitute
counsel, has been challenged responding to the sheer volume of pleadings and
documents in this Case. The undersigned has had a very busy trial and appellate
schedule in the past month with all deadlines coming due at the exact same time.
Leave is therefore requested of an additional fourteen days in which to reply to
Defendants' Request for Admissions so as to posit a meaningful reply.
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its untimely responses to the Requests for Admission. Plaintiff did not seek to extend the discovery
deadline. Plaintiff did, however, oppose Travelers’ May 30, 2023 motion to compel Plaintiff's
expert’s deposition and to extend the discovery and dispositive motion deadlines. The deadline for
filing dispositive motions expired July 28, 2023. Travelers timely filed its Motion for Summary
Judgment on July 28 in compliance with the December 7, 2022 Order. That motion cites Plaintiff's
admissions which are corroborated by other evidence in the case. Plaintiff now seeks in this motion
to reverse the March 8, 2023 Order declaring the Requests for Admission admitted and, in other
related motions, to strike its admissions as evidence against Plaintiff and to afford Plaintiff at least
another 4 months to conduct discovery Plaintiff chose not to previously pursue and to then respond
to the Motion for Summary Judgment.
Il. ARGUMENT
A. Plaintiff’s motion should be denied where Plaintiff failed to timely serve answers to
the Requests for Admission and then waited 5 months to seek relief from the Order
onfirming the Requests were deemed _admitted_under Civ. R. 36(A), long after
discovery had closed and only after Travelers filed its dispositive motion.
Plaintiff has failed to demonstrate any grounds for permitting it to escape the consequences
of its failure to timely serve Answers to the Requests for Admissions despite being afforded two
extensions. Plaintiff's only “excuse” is, as it was back in February 2023, that its counsel was
simply too busy to comply with the rules and Plaintiff did at least “file” answers, albeit days after
the deadline had passed. This is not sufficient. The fact that Plaintiff waited 5 months to seek relief
from the Court’s March 8, 2023 Order, until well past the closure of discovery and the filing of a
dispositive motion against Plaintiff, only further cements that conclusion. The Requests for
Admission were properly deemed admitted under Ohio law upon Plaintiffs failure to serve its
Answers by the deadline. Plaintiff has presented no basis to reconsider, let alone reverse the March
8, 2023 Order. Plaintiff has also not demonstrated Travelers will not be prejudiced by allowing
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Plaintiff to avoid its admissions at this juncture. In short, Plaintiff has presented no reason why its
admissions cannot and should not be used as evidence in Travelers’ Motion for Summary
Judgment as provided for by Ohio law.
1 Travelers’ requests for_ admission were properly deemed admitted because
Plaintiff failed to timely serve answers.
Contrary to Plaintiff's assertions, the Court properly deemed the Requests for Admission
(“RFAs”) admitted. Plaintiff failed to timely serve its answers to the RFAs. This was so even
though Plaintiff had been granted extensions of time to do so. Plaintiffs attempt to belatedly “file”
answers after the fact is ineffective to avoid Civ. R. 36 and long-standing Ohio law
Civ. R. 36 governs Requests for Admission and their effect. It states in pertinent part:
(A) Availability; Procedures for Use. A party may serve upon any other
party a written request for the admission, for purposes of the pending
action only, of the truth of any matters within the scope of Civ.R.
26(B) set forth in the request, that relate to statements or opinions of fact
or of the application of law to fact, including the genuineness of any
documents described in the request.
KK
Q) The matter is admitted unless, within a period designated in the
request, not less than twenty-eight days after service of the 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 the party's attorney
Rule 36(A) is “self-executing.” Thus, the matters set forth in the RFAs were automatically
deemed admitted as soon as Plaintiff failed to answer them by the deadline. Contrary to Plaintiff's
arguments, the effective date on which the RFAs were deemed admitted was not the date of entry
of the Court’s Order, it was, by virtue of two extensions afforded to Plaintiff, February 3, 2023
St. Paul Fire & Marine Ins. Co. v. Battle, 44 Ohio App.2d 261, 269, 337 N.E.2d 806 (1975);
Gerkin v. State Auto Ins. Co. of Ohio, 2014-Ohio-4428, 20 N.E.3d 1031, 1037-38 (4" Dist.). In
fact, Travelers’ motion was entirely unnecessary to seek or confirm the automatic admissions. Jd.
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(citing cases (“under Civ.R. 36(A) the matters set forth in State Auto's requests for admission were
automatically deemed admitted [on the date plaintiff's responses were due] and at that point the
trial court had recognized them establishing ‘the facts.’ See Cleveland Trust Co. v. Willis, 20 Ohio
St.3d 66, 67, 485 N.E.2d 1052 (1985).”).
Rule 36 (A) makes clear that, contrary to Plaintiff’s assertion, the failure to timely serve
responses to RFAs is not a mere “technicality.” It is a failure with legal consequence. Further,
whether “interlocutory” or not, the Court’s March 8, 2023 Order confirming the automatic effect
of Rule 36(A)(1) was not “discretionary. Gherkin, supra at 1038. Nor was it based on a supposed
mistaken assumption. Plaintiff's answers were not filed by their due date. Plaintiffs mere filing
of late answers after the deadline had passed was ineffective to avoid application of Rule 36(A)
The RFAs were already deemed admitted by operation of law. This Court’s March 8, 2023 Order
deeming the RFAs admitted was merely confirmation of the law. There is nothing in that Order
the Court is at liberty to “reconsider.” White Stag Aircraft Leasing U.S. LLC v. JP Morgan Chase
Bank, N.A., 2021-Ohio-1245, 171 NE.3d 763 (7 Dist.), cited by Plaintiff, merely affirms that
interlocutory orders are not appealable whereas final orders are. It is entirely inapposite here as
this is not an appeal
2. Plaintiff _has_failed_to_present_any grounds to warrant disregarding the
admissions 5 months after the fact where Plaintiff never sought relief from the
Court’s March 8, 2023 Order deeming the RFAs admitted until after discovery
closed and Plaintiff was facing a dispositive motion.
Whether cast as a renewed motion for leave to withdraw its admissions* or a motion to
reconsider the March 8, 2023 Order, Plaintiff's motion fails. As it did in its February motion,
> This Court’s failure to specifically rule on Plaintiff’s February 2023 Motion is, however, to be
construed as a presumptive denial of that motion. State ex rel. Cassels v. Dayton City School Dist.
Bad. of Edn., 69 Ohio St.3d 217, 223, 631 N.E.2d 150, 155 (1994)
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Plaintiff offers a singular “excuse” for failing to timely serve answers to the RFAs — that Plaintiff's
counsel had a very busy schedule in the month of January before answers to the RFAs were
originally due.
Irrespective of counsel’s busy schedule last January, it has no bearing on the present motion
many months later. First, Plaintiff filed this action, not Travelers. It is far from complex -factually
or legally. It stems from a cargo theft loss of chicken breasts and involves a simple insurance
coverage dispute based on very limited controlling facts and few witnesses. As it relates to
Travelers, no pleadings beyond a Complaint and an Answer and Affirmative Defenses were ever
filed. Plaintiff's counsel assumed Plaintiffs representation a month after the case was filed and a
month before Travelers served any discovery on Plaintiff. Those discovery requests to Plaintiff
were limited to the RFAs at issue, a singular set of Interrogatories, and a singular set of document
requests. Plaintiff agreed to the scheduling order which afforded Plaintiff 7 months to conduct
discovery. As previously established, Plaintiff has been dilatory in all its discovery responses
Travelers was forced to file a Motion to Compel Plaintiff's answers not only to the interrogatories
and requests for documents, for Plaintiff's mandated Initial Disclosures as well and for the
deposition of Plaintiffs expert. Plaintiff was afforded at least 7 months to complete its discovery.
Plaintiff chose to take no depositions and limited its discovery efforts to serving one set of
interrogatories and document requests on Travelers. Travelers took one deposition - that of
Plaintiff's expert - and then was only able to schedule that deposition after seeking judicial
intervention
More important, Plaintiff completely ignores that it waited over 5 months to seek relief
from its failure to answer the RFAs and then not until 1 % months after discovery closed and after
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a dispositive motion was already pending. The factors the Court may consider under Civ. R. 36(B)*
do not support granting Plaintiff’ s motion at this juncture or under the facts of this case. Plaintiffs
counsel’s busy schedule in the month preceding the original February 3, 2023, twice-extended
RFA response deadline does not explain or excuse Plaintiffs very lengthy failure to act until faced
with a dispositive motion a half year later. Ohio courts routinely hold such unexplained, unjustified
delays will not relieve parties of the consequences of their transgressions.
i
For example in Gherkin, supra at 104 the appellate court affirmed denial of a
motion to amend or withdraw admissions where. the failure to timely respond to discovery
was not an isolated incident, the Plaintiff offered no cogent excuse beyond her counsel’s busy
schedule and inattentiveness and the plaintiff waited, again as here, over 5 months after the
requests for admissions were automatically deemed admitted to withdraw or amend them, and then
did not serve the motion for leave to do so until that defendant’s expert witness disclosure had
been filed at the tail end of discovery. Similarly in .P. Morgan Chase Bank v. Macejko, infra at
(24, the 7" District held the trial court did not abuse its discretion in denying a request to amend
or withdraw admissions where the defendants did not seek such relief until after the plaintiff had
filed its motion for summary judgment. In so holding, the appellate court stated:
+ Civ.R. 36(B) states in pertinent part:
Any matter admitted under this rule is conclusively established unless the court on
motion permits withdrawal or amendment of the admission. Subject to the
provisions of Civ. R. 16 governing modification of a pretrial order, the court may
permit withdrawal or amendment when the presentation of the merits of the action
will be subserved thereby and the party who obtained the admission fails to satisfy
the court that withdrawal or amendment will prejudice the party in maintaining his
action or defense on the merits.
The decision to grant or deny a motion to withdraw or amend an admission is within the Court’s
discretion. J.P. Morgan Chase Bank v. Macejko, 7th Dist. Mahoning Nos. 07-MA-148, 08-MA-—
242, 2010-Ohio-3152.
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Appellants' failure to timely respond to Chase's request was without justification
and showed a lack of diligence on appellants’ behalf. See Clause Vv
Freshwater (June 30, 1998), 7th Dist. No. 97-JE-37 (finding untimely responses
presented nine days before trial prejudicial to plaintiff). We recognize the
importance of having an action decided upon the merits, and the adverse effect of
the trial court's decision has on appellants. See id. However, we must also take into
account the fact that Chase was justified in presuming that the matters had been
admitted by appellants and in relying on the admissions when it moved for
summary judgment. See id. Allowing the untimely responses, which were
submitted over a year after they were due, would have been prejudicial to Chase.
See id. For all of the foregoing reasons, the trial court's decision that the request for
admissions be deemed admitted was not an abuse of discretion.
See also Herlihy Moving and Storage, Inc. v. Nickison, 10" Dist. Franklin No. 09AP-831, 2010-
Ohio-6525 (holding “an unexplained or unjustified delay in making the motion after discovering
a ground for relief may put the motion beyond the pale of a reasonable time;” concluding that a 4-
month delay in moving for relief from default judgment does not, on its face satisfy a reasonable
time requirement especially in the absence of evidence explaining or excusing the delay).
Brooks v. Rkuk, Inc., 5" Dist. Stark No. 2021CA00048, 2022-Ohio-266, cited by Plaintiff,
is inapposite as it addresses the meaning of “excusable neglect” in the context of a motion for relief
from a default judgment under Civ. R. 60(B). It does not aid Plaintiff here. The defendant in that
case was defaulted after refusing service and forcing substituted service, failed to answer the
complaint, did not act when the default was entered, and when he finally moved to set aside the
default judgment against him, failed to demonstrate mistake, inadvertence, surprise, or excusable
neglect required under Civ. R. 60(B)
In the instant matter, by admission, Plaintiff has known since March 8, 2023 that its
answers to all the RFAs had been deemed admitted and Plaintiff, again by admission, knew as of
February 13, 2023, that it needed to act to seek relief from its failure to timely respond to the RFAs.
Yet, Plaintiff did nothing until after discovery closed many months later and after Travelers had
relied on the admissions throughout the ensuing months-long discovery period, and Travelers had
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already filed its dispositive motion, in compliance with the court-imposed deadline, which cited
those admissions. Plaintiff has offered no explanation or excuse for the 5-month delay, let alone
for waiting until the last minute to avoid a dispositive motion, to file this motion. As the foregoing
courts concluded, a party that misses a deadline and then inexplicably and unjustifiably delays in
this manner and for this length of time should not be afforded relief from its inaction. See
e.g., Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 485 N.E.2d 1052 (1985) (trial court did not
abuse discretion in denying motion to withdraw admissions where motion was not filed until eve
of trial by party that had history of failing to cooperate in discovery leaving opposing party to rely
upon the admissions in preparing for trial); McDougald v. Ohio Dept. of Rehab. and Correction,
2017-Ohio-8378, 99 N.E.3d 1043, 1047-48 (10" Dist.) (trial court did not abuse discretion in
denying motion for second extension to respond to dispositive motion where the plaintiff offered
no explanation or justification for untimely filing).
3. Permitting Plaintiff to avoid the consequences of its own dilatory conduct will
everely prejudice Travelers.
Plaintiff's motion ignores and fails to meet the second requirement for relief under Rule
36(B) — the absence of prejudice to the other party. See J.P. Morgan Chase Bank v. Macejko, supra
at 22. Travelers will incur significant prejudice if Plaintiff were permitted to withdraw its
admissions now that discovery is closed and Travelers’ summary judgment motion is pending.
Travelers has justifiably relied on Plaintiffs admissions throughout the pendency of this action
For example, Travelers did not depose additional witnesses such as representatives of Plaintiff, its
customer Bird-in-Hand which Plaintiff brokered the transportation of the load of chicken breasts
at issue here, and it did not depose representatives of the recipient of that load, Standard Meat, that
rejected the load after the trailer in which it had been transported had been opened by an unknown
perpetrator and a couple of containers therein tampered with. The reason Travelers did not depose
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these witnesses is because Plaintiff had already admitted the substance of these witnesses’
testimony. This included the existence and authenticity of documents central to the case and
Travelers’ policy defenses, the underlying facts surrounding the load’s rejection and thus the facts
underlying this insurance contract dispute itself. Simply by way of example, Plaintiff had, by
admission authenticated its contracts and their terms, the Bill of Lading, and a letter stating the
reason for the load’s rejection by Standard Meat (see RFA 1-5). Plaintiff had further admitted facts
of the theft supporting application of a policy exclusion and denial of the claim (see RFA 6-19).
Beyond critically affecting Travelers’ discovery in this matter in reliance on the
admissions, Travelers relied on Plaintiff's admissions in its Motion for Summary Judgment. To
permit Plaintiff to withdraw its admissions at this juncture would require entirely reopening
discovery, forcing Travelers (and even Plaintiff) to incur significant additional expense, and
drastically delaying resolution of this case (directly contrary to the stated purpose of this Court’s
local rules), thereby directly impacting the Court as well. Plaintiff has not and cannot demonstrate
otherwise.°
RKT Props., LLC v. City of Northwood, 162 Ohio App.3d 590, 2005-Ohio-4178, 834
N.E.2d 393 (6"" Dist.), cited by Plaintiff, does not aid Plaintiff’s cause. In RKT, the court held that
in its prior precedent, it had failed to emphasize that Rule 36(B) also requires consideration of the
prejudice to the opposing party in addition to whether the movant has shown a compelling reason
for withdrawal of its admissions: “While cases should ideally be resolved on their merits, Civ. R.
5 This conclusion is buttressed by Plaintiff’s concurrently filed motion under Rule 56(F) to
significantly delay (by at least 120 days) the deadline for it to respond to Travelers’ summary
judgment motion. Plaintiff seeks to reopen discovery so Plaintiff can depose at least 3 fact
witnesses about whom Plaintiff has known all along but whom Plaintiff chose not to depose, and
to allow Plaintiff’s counsel time to review documents in his own file, which Plaintiff did not do
during the 7-month discovery period Plaintiff afforded to it
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36 enables each party to justifiably rely upon an admission while preparing for trial without
incurring prejudice because of that reliance. Therefore, while Civ. R. 36 permits a later withdrawal
of the admission, it should be allowed only after considering the prejudice to the other party.
Against this prejudice the court must weigh the ‘compelling’ circumstances that led to the failure
to respond to the request for admissions.” /d. at 593-94. In the case before it and in stark contrast
to the present matter, the RK7 Court found there was no prejudice because the movant’s position
had always been known and was not based on fact but on construction of the applicable zoning
law (the parties had previously gone through administrative proceedings to resolve their single-
issue zoning dispute), the defendant had sought immediate relief, and the plaintiff had not
justifiably relied on the admissions. As previously demonstrated, the opposite is true here
Travelers clearly will be severely and unfairly prejudiced.
Hil. CONCLUSION AND RELIEF RE UESTED
Fort the foregoing reasons. Plaintiff's motion has no merit and should be denied. Further,
Plaintiff should be ordered to pay Travelers’ costs and attorney fees in having to respond to
Plaintiff's factually and legally unsupportable motion.
Respectfully submitted,
/s/ Michele A. Chapnick
MICHELE A. CHAPNICK (0084349)
GREGORY, MEYER & CHAPNICK, P.C.
Attorneys for Defendant Travelers
340 E. Big Beaver, Ste. 520
Troy, MI 48083
(248) 689-3920/(248) 689-4560 - Fax
mchapnick@gregorylaw.com
Dated: August 23, 2023
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CERTIFICATE OF SERVICE
STATE OF MICHIGAN )
)SS
COUNTY OF OAKLAND )
Michele A. Chapnick, being duly sworn, deposes and says that she served a copy of the
attached on * by the Court’s efiling system to:
Brian W. Benbow (0071404)
Benbow Law Offices
265 Sunrise Center Drive
Zanesville, OH 43701
bwb1974@yahoo.com
Attorney for Plaintiff
/s/ Michele A. Chapnick
MICHELE A. CHAPNICK (0084349)
GREGORY, MEYER & CHAPNICK, P.C.
Attorneys for Defendant Travelers
340 E. Big Beaver, Ste. 520
Troy, MI 48083
(248) 689-3920/(248) 689-3920 - Fax
mchapnick@gregorylaw.com
13
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T6 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO BBI LOGISTICS, LLC, Case No. 22CV004222 Hon. J. Brown Plaintiff, DEFENDANT TRAVELERS PROPERTY Vv CASUALTY COMPANY OF AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION GRS TRANSPORT, INC. and FOR RECONSIDERATION REGARDING TRAVELERS PROPERTY PLAINTIFF’S MOTION FOR LEAVE TO CASUALTY COMPANY OF FILE A RESPONSE TO TRAVELERS’ AMERICA, REQUEST FOR ADMISSIONS AND MEMORANDUM CONTRA PLAINTIFE’S Defendants. MOTION eR ROK ROK NOW COMES Defendant, Travelers Property Casualty Company of America (“Travelers”), by and through its attorneys, Gregory, Meyer & Chapnick, P.C., and for its Opposition to Plaintiff's Motion for Reconsideration Regarding Plaintiff's Motion for Leave to File a Response to Defendant Travelers’ Request for Admissions states that for the reasons set forth in the attached Memorandum Contra, Plaintiffs 11-hour motion should be denied. The Court may not “reconsider” its entry of an order confirming the automatic operation of Civ. R. 36(A) that was entered on March 8, 2023 (over 5 months ago); Plaintiff has not demonstrated any grounds to warrant excusing its failure to either timely file its answers to the Requests for Admission in the first place and, more importantly, has demonstrated no excuse for its 5-month delay, waiting until after discovery had closed and Travelers had filed it motion for summary judgment, to seek any sort of relief from the initial failure; and where Plaintiffs proposed relief would significantly prejudice Travelers and adversely impact this Court as well Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T6 WHEREFORE, Defendant, Travelers Property Casualty Company of America, respectfully requests that this Honorable Court deny Plaintiff's motion in its entirety and further award Travelers its costs and attorney fees expended in having to respond to this motion. MEMORANDUM CONTRA OF DEFENDANT TO PLAINTIFF’S MOTION FOR LEAVE T' ILE A RESPONSE TO TRAVEL UEST FO! MISSIO- I FACTUAL AND PROCEDURAL BACKGROUND The following facts, most of which were set forth and supported by documentary evidence in Travelers’ February 9, 2023 Motion to Deem Request for Admissions Admitted and to Compel Responses to its First Set of Interrogatories and Request for Production of Documents and Rule 26(a) Initial Disclosures, as well as Travelers’ March 3, 2023 Response to Plaintiff's Motion for Leave to File Belated Discovery Responses, remain undisputed by Plaintiff. Plaintiff filed this action on or about June 21, 2022. Plaintiff’s current attorney has been counsel of record since November 1, 2022. Travelers served Requests for Admission on Plaintiff on December 1, 2022 in order to identify the agreed facts and narrow the issues in this straightforward $52,000 insurance coverage case. Under Civ. R. 36 (A)(1), Plaintiff had 28 days (until December 29th) to serve its answers or objections to avoid the Requests being automatically deemed admitted as mandated by that rule. On December 14, 2022, the parties mutually agreed to extend the time for Plaintiff to respond to the Requests for nearly another month, until January 27, 2023. When Plaintiff failed to meet that extended deadline, on January 31, 2023, Travelers gave Plaintiff until February 3, 2023 to serve its Answers to the Requests for Admission before Travelers would seek an Order deeming the Requests admitted. Plaintiff failed to meet that deadline as well. Travelers did not file its Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T6 Motion until February 9, 2023, affording Plaintiff even more time to avoid the consequences of its failure to serve its answers. ! On February 13, 2023, Plaintiff served on Travelers a “Motion for Leave to File a Response to Defendant Travelers’ Request for Admissions” claiming, as it does now, that Plaintiffs counsel was too busy to timely file the Request for Admission Answers and requesting an additional 14 days in which to do so. Plaintiffs current motion is a rehash of that February 13, 2023 motion which Plaintiff now avers was inadvertently not filed until February 15, 2023.? Plaintiff claims it disregarded its own Motion seeking leave and unilaterally filed Answers to the Requests for Admission on February 13, 2023 (10 days after the twice-extended deadline had passed and 4 days after the filing of Travelers’ Motion). The Court never granted Plaintiff leave to file late answers The Court entered its Order deeming the Requests for Admission admitted on March 8, 2023. Plaintiff remained silent for the next 5 months. It sought no relief from that Order which implicitly denied Plaintiffs Motion for Leave. Nor did Plaintiff take any further action to seek an express ruling on its Motion. Months passed. Pursuant to the Court’s December 7, 2022, Order, all discovery in this matter closed on June 30, 2023. Plaintiff continued to remain silent regarding ' As evidenced by Travelers’ Motion and the Court’s subsequent March 8, 2023, Order, Plaintiff’s failure to timely serve Answers to Requests for Admission was not Plaintiff’s only failure to comply with discovery. Plaintiff had also failed to respond to Travelers’ outstanding Interrogatories and Request for the Production of Documents, and further failed to serve its Initial Disclosures Travelers’ February 9, 2023 Motion therefore also sought, pursuant to Rule 37, to compel responses to this discovery too. The Court’s March 8, 2023 Order granted Plaintiff up to 7 days in which to serve its answers to this other discovery as well as the Initial Disclosures ? Both motions state: Defendants have filed a motion seeking to have their complex request for admissions deemed admitted. The undersigned, a solo practitioner and substitute counsel, has been challenged responding to the sheer volume of pleadings and documents in this Case. The undersigned has had a very busy trial and appellate schedule in the past month with all deadlines coming due at the exact same time. Leave is therefore requested of an additional fourteen days in which to reply to Defendants' Request for Admissions so as to posit a meaningful reply. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T6 its untimely responses to the Requests for Admission. Plaintiff did not seek to extend the discovery deadline. Plaintiff did, however, oppose Travelers’ May 30, 2023 motion to compel Plaintiff's expert’s deposition and to extend the discovery and dispositive motion deadlines. The deadline for filing dispositive motions expired July 28, 2023. Travelers timely filed its Motion for Summary Judgment on July 28 in compliance with the December 7, 2022 Order. That motion cites Plaintiff's admissions which are corroborated by other evidence in the case. Plaintiff now seeks in this motion to reverse the March 8, 2023 Order declaring the Requests for Admission admitted and, in other related motions, to strike its admissions as evidence against Plaintiff and to afford Plaintiff at least another 4 months to conduct discovery Plaintiff chose not to previously pursue and to then respond to the Motion for Summary Judgment. Il. ARGUMENT A. Plaintiff’s motion should be denied where Plaintiff failed to timely serve answers to the Requests for Admission and then waited 5 months to seek relief from the Order onfirming the Requests were deemed _admitted_under Civ. R. 36(A), long after discovery had closed and only after Travelers filed its dispositive motion. Plaintiff has failed to demonstrate any grounds for permitting it to escape the consequences of its failure to timely serve Answers to the Requests for Admissions despite being afforded two extensions. Plaintiff's only “excuse” is, as it was back in February 2023, that its counsel was simply too busy to comply with the rules and Plaintiff did at least “file” answers, albeit days after the deadline had passed. This is not sufficient. The fact that Plaintiff waited 5 months to seek relief from the Court’s March 8, 2023 Order, until well past the closure of discovery and the filing of a dispositive motion against Plaintiff, only further cements that conclusion. The Requests for Admission were properly deemed admitted under Ohio law upon Plaintiffs failure to serve its Answers by the deadline. Plaintiff has presented no basis to reconsider, let alone reverse the March 8, 2023 Order. Plaintiff has also not demonstrated Travelers will not be prejudiced by allowing Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T6é Plaintiff to avoid its admissions at this juncture. In short, Plaintiff has presented no reason why its admissions cannot and should not be used as evidence in Travelers’ Motion for Summary Judgment as provided for by Ohio law. 1 Travelers’ requests for_ admission were properly deemed admitted because Plaintiff failed to timely serve answers. Contrary to Plaintiff's assertions, the Court properly deemed the Requests for Admission (“RFAs”) admitted. Plaintiff failed to timely serve its answers to the RFAs. This was so even though Plaintiff had been granted extensions of time to do so. Plaintiffs attempt to belatedly “file” answers after the fact is ineffective to avoid Civ. R. 36 and long-standing Ohio law Civ. R. 36 governs Requests for Admission and their effect. It states in pertinent part: (A) Availability; Procedures for Use. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Civ.R. 26(B) set forth in the request, that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. KK Q) The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service of the 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 the party's attorney Rule 36(A) is “self-executing.” Thus, the matters set forth in the RFAs were automatically deemed admitted as soon as Plaintiff failed to answer them by the deadline. Contrary to Plaintiff's arguments, the effective date on which the RFAs were deemed admitted was not the date of entry of the Court’s Order, it was, by virtue of two extensions afforded to Plaintiff, February 3, 2023 St. Paul Fire & Marine Ins. Co. v. Battle, 44 Ohio App.2d 261, 269, 337 N.E.2d 806 (1975); Gerkin v. State Auto Ins. Co. of Ohio, 2014-Ohio-4428, 20 N.E.3d 1031, 1037-38 (4" Dist.). In fact, Travelers’ motion was entirely unnecessary to seek or confirm the automatic admissions. Jd. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - Té (citing cases (“under Civ.R. 36(A) the matters set forth in State Auto's requests for admission were automatically deemed admitted [on the date plaintiff's responses were due] and at that point the trial court had recognized them establishing ‘the facts.’ See Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 67, 485 N.E.2d 1052 (1985).”). Rule 36 (A) makes clear that, contrary to Plaintiff’s assertion, the failure to timely serve responses to RFAs is not a mere “technicality.” It is a failure with legal consequence. Further, whether “interlocutory” or not, the Court’s March 8, 2023 Order confirming the automatic effect of Rule 36(A)(1) was not “discretionary. Gherkin, supra at 1038. Nor was it based on a supposed mistaken assumption. Plaintiff's answers were not filed by their due date. Plaintiffs mere filing of late answers after the deadline had passed was ineffective to avoid application of Rule 36(A) The RFAs were already deemed admitted by operation of law. This Court’s March 8, 2023 Order deeming the RFAs admitted was merely confirmation of the law. There is nothing in that Order the Court is at liberty to “reconsider.” White Stag Aircraft Leasing U.S. LLC v. JP Morgan Chase Bank, N.A., 2021-Ohio-1245, 171 NE.3d 763 (7 Dist.), cited by Plaintiff, merely affirms that interlocutory orders are not appealable whereas final orders are. It is entirely inapposite here as this is not an appeal 2. Plaintiff _has_failed_to_present_any grounds to warrant disregarding the admissions 5 months after the fact where Plaintiff never sought relief from the Court’s March 8, 2023 Order deeming the RFAs admitted until after discovery closed and Plaintiff was facing a dispositive motion. Whether cast as a renewed motion for leave to withdraw its admissions* or a motion to reconsider the March 8, 2023 Order, Plaintiff's motion fails. As it did in its February motion, > This Court’s failure to specifically rule on Plaintiff’s February 2023 Motion is, however, to be construed as a presumptive denial of that motion. State ex rel. Cassels v. Dayton City School Dist. Bad. of Edn., 69 Ohio St.3d 217, 223, 631 N.E.2d 150, 155 (1994) Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T6é Plaintiff offers a singular “excuse” for failing to timely serve answers to the RFAs — that Plaintiff's counsel had a very busy schedule in the month of January before answers to the RFAs were originally due. Irrespective of counsel’s busy schedule last January, it has no bearing on the present motion many months later. First, Plaintiff filed this action, not Travelers. It is far from complex -factually or legally. It stems from a cargo theft loss of chicken breasts and involves a simple insurance coverage dispute based on very limited controlling facts and few witnesses. As it relates to Travelers, no pleadings beyond a Complaint and an Answer and Affirmative Defenses were ever filed. Plaintiff's counsel assumed Plaintiffs representation a month after the case was filed and a month before Travelers served any discovery on Plaintiff. Those discovery requests to Plaintiff were limited to the RFAs at issue, a singular set of Interrogatories, and a singular set of document requests. Plaintiff agreed to the scheduling order which afforded Plaintiff 7 months to conduct discovery. As previously established, Plaintiff has been dilatory in all its discovery responses Travelers was forced to file a Motion to Compel Plaintiff's answers not only to the interrogatories and requests for documents, for Plaintiff's mandated Initial Disclosures as well and for the deposition of Plaintiffs expert. Plaintiff was afforded at least 7 months to complete its discovery. Plaintiff chose to take no depositions and limited its discovery efforts to serving one set of interrogatories and document requests on Travelers. Travelers took one deposition - that of Plaintiff's expert - and then was only able to schedule that deposition after seeking judicial intervention More important, Plaintiff completely ignores that it waited over 5 months to seek relief from its failure to answer the RFAs and then not until 1 % months after discovery closed and after Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T6é a dispositive motion was already pending. The factors the Court may consider under Civ. R. 36(B)* do not support granting Plaintiff’ s motion at this juncture or under the facts of this case. Plaintiffs counsel’s busy schedule in the month preceding the original February 3, 2023, twice-extended RFA response deadline does not explain or excuse Plaintiffs very lengthy failure to act until faced with a dispositive motion a half year later. Ohio courts routinely hold such unexplained, unjustified delays will not relieve parties of the consequences of their transgressions. i For example in Gherkin, supra at 104 the appellate court affirmed denial of a motion to amend or withdraw admissions where. the failure to timely respond to discovery was not an isolated incident, the Plaintiff offered no cogent excuse beyond her counsel’s busy schedule and inattentiveness and the plaintiff waited, again as here, over 5 months after the requests for admissions were automatically deemed admitted to withdraw or amend them, and then did not serve the motion for leave to do so until that defendant’s expert witness disclosure had been filed at the tail end of discovery. Similarly in .P. Morgan Chase Bank v. Macejko, infra at (24, the 7" District held the trial court did not abuse its discretion in denying a request to amend or withdraw admissions where the defendants did not seek such relief until after the plaintiff had filed its motion for summary judgment. In so holding, the appellate court stated: + Civ.R. 36(B) states in pertinent part: Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Civ. R. 16 governing modification of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining his action or defense on the merits. The decision to grant or deny a motion to withdraw or amend an admission is within the Court’s discretion. J.P. Morgan Chase Bank v. Macejko, 7th Dist. Mahoning Nos. 07-MA-148, 08-MA-— 242, 2010-Ohio-3152. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T7 Appellants' failure to timely respond to Chase's request was without justification and showed a lack of diligence on appellants’ behalf. See Clause Vv Freshwater (June 30, 1998), 7th Dist. No. 97-JE-37 (finding untimely responses presented nine days before trial prejudicial to plaintiff). We recognize the importance of having an action decided upon the merits, and the adverse effect of the trial court's decision has on appellants. See id. However, we must also take into account the fact that Chase was justified in presuming that the matters had been admitted by appellants and in relying on the admissions when it moved for summary judgment. See id. Allowing the untimely responses, which were submitted over a year after they were due, would have been prejudicial to Chase. See id. For all of the foregoing reasons, the trial court's decision that the request for admissions be deemed admitted was not an abuse of discretion. See also Herlihy Moving and Storage, Inc. v. Nickison, 10" Dist. Franklin No. 09AP-831, 2010- Ohio-6525 (holding “an unexplained or unjustified delay in making the motion after discovering a ground for relief may put the motion beyond the pale of a reasonable time;” concluding that a 4- month delay in moving for relief from default judgment does not, on its face satisfy a reasonable time requirement especially in the absence of evidence explaining or excusing the delay). Brooks v. Rkuk, Inc., 5" Dist. Stark No. 2021CA00048, 2022-Ohio-266, cited by Plaintiff, is inapposite as it addresses the meaning of “excusable neglect” in the context of a motion for relief from a default judgment under Civ. R. 60(B). It does not aid Plaintiff here. The defendant in that case was defaulted after refusing service and forcing substituted service, failed to answer the complaint, did not act when the default was entered, and when he finally moved to set aside the default judgment against him, failed to demonstrate mistake, inadvertence, surprise, or excusable neglect required under Civ. R. 60(B) In the instant matter, by admission, Plaintiff has known since March 8, 2023 that its answers to all the RFAs had been deemed admitted and Plaintiff, again by admission, knew as of February 13, 2023, that it needed to act to seek relief from its failure to timely respond to the RFAs. Yet, Plaintiff did nothing until after discovery closed many months later and after Travelers had relied on the admissions throughout the ensuing months-long discovery period, and Travelers had Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T7 already filed its dispositive motion, in compliance with the court-imposed deadline, which cited those admissions. Plaintiff has offered no explanation or excuse for the 5-month delay, let alone for waiting until the last minute to avoid a dispositive motion, to file this motion. As the foregoing courts concluded, a party that misses a deadline and then inexplicably and unjustifiably delays in this manner and for this length of time should not be afforded relief from its inaction. See e.g., Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 485 N.E.2d 1052 (1985) (trial court did not abuse discretion in denying motion to withdraw admissions where motion was not filed until eve of trial by party that had history of failing to cooperate in discovery leaving opposing party to rely upon the admissions in preparing for trial); McDougald v. Ohio Dept. of Rehab. and Correction, 2017-Ohio-8378, 99 N.E.3d 1043, 1047-48 (10" Dist.) (trial court did not abuse discretion in denying motion for second extension to respond to dispositive motion where the plaintiff offered no explanation or justification for untimely filing). 3. Permitting Plaintiff to avoid the consequences of its own dilatory conduct will everely prejudice Travelers. Plaintiff's motion ignores and fails to meet the second requirement for relief under Rule 36(B) — the absence of prejudice to the other party. See J.P. Morgan Chase Bank v. Macejko, supra at 22. Travelers will incur significant prejudice if Plaintiff were permitted to withdraw its admissions now that discovery is closed and Travelers’ summary judgment motion is pending. Travelers has justifiably relied on Plaintiffs admissions throughout the pendency of this action For example, Travelers did not depose additional witnesses such as representatives of Plaintiff, its customer Bird-in-Hand which Plaintiff brokered the transportation of the load of chicken breasts at issue here, and it did not depose representatives of the recipient of that load, Standard Meat, that rejected the load after the trailer in which it had been transported had been opened by an unknown perpetrator and a couple of containers therein tampered with. The reason Travelers did not depose 10 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T7 these witnesses is because Plaintiff had already admitted the substance of these witnesses’ testimony. This included the existence and authenticity of documents central to the case and Travelers’ policy defenses, the underlying facts surrounding the load’s rejection and thus the facts underlying this insurance contract dispute itself. Simply by way of example, Plaintiff had, by admission authenticated its contracts and their terms, the Bill of Lading, and a letter stating the reason for the load’s rejection by Standard Meat (see RFA 1-5). Plaintiff had further admitted facts of the theft supporting application of a policy exclusion and denial of the claim (see RFA 6-19). Beyond critically affecting Travelers’ discovery in this matter in reliance on the admissions, Travelers relied on Plaintiff's admissions in its Motion for Summary Judgment. To permit Plaintiff to withdraw its admissions at this juncture would require entirely reopening discovery, forcing Travelers (and even Plaintiff) to incur significant additional expense, and drastically delaying resolution of this case (directly contrary to the stated purpose of this Court’s local rules), thereby directly impacting the Court as well. Plaintiff has not and cannot demonstrate otherwise.° RKT Props., LLC v. City of Northwood, 162 Ohio App.3d 590, 2005-Ohio-4178, 834 N.E.2d 393 (6"" Dist.), cited by Plaintiff, does not aid Plaintiff’s cause. In RKT, the court held that in its prior precedent, it had failed to emphasize that Rule 36(B) also requires consideration of the prejudice to the opposing party in addition to whether the movant has shown a compelling reason for withdrawal of its admissions: “While cases should ideally be resolved on their merits, Civ. R. 5 This conclusion is buttressed by Plaintiff’s concurrently filed motion under Rule 56(F) to significantly delay (by at least 120 days) the deadline for it to respond to Travelers’ summary judgment motion. Plaintiff seeks to reopen discovery so Plaintiff can depose at least 3 fact witnesses about whom Plaintiff has known all along but whom Plaintiff chose not to depose, and to allow Plaintiff’s counsel time to review documents in his own file, which Plaintiff did not do during the 7-month discovery period Plaintiff afforded to it 11 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T7 36 enables each party to justifiably rely upon an admission while preparing for trial without incurring prejudice because of that reliance. Therefore, while Civ. R. 36 permits a later withdrawal of the admission, it should be allowed only after considering the prejudice to the other party. Against this prejudice the court must weigh the ‘compelling’ circumstances that led to the failure to respond to the request for admissions.” /d. at 593-94. In the case before it and in stark contrast to the present matter, the RK7 Court found there was no prejudice because the movant’s position had always been known and was not based on fact but on construction of the applicable zoning law (the parties had previously gone through administrative proceedings to resolve their single- issue zoning dispute), the defendant had sought immediate relief, and the plaintiff had not justifiably relied on the admissions. As previously demonstrated, the opposite is true here Travelers clearly will be severely and unfairly prejudiced. Hil. CONCLUSION AND RELIEF RE UESTED Fort the foregoing reasons. Plaintiff's motion has no merit and should be denied. Further, Plaintiff should be ordered to pay Travelers’ costs and attorney fees in having to respond to Plaintiff's factually and legally unsupportable motion. Respectfully submitted, /s/ Michele A. Chapnick MICHELE A. CHAPNICK (0084349) GREGORY, MEYER & CHAPNICK, P.C. Attorneys for Defendant Travelers 340 E. Big Beaver, Ste. 520 Troy, MI 48083 (248) 689-3920/(248) 689-4560 - Fax mchapnick@gregorylaw.com Dated: August 23, 2023 12 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Aug 23 3:45 PM-22CV004222 0G518 - T7 CERTIFICATE OF SERVICE STATE OF MICHIGAN ) )SS COUNTY OF OAKLAND ) Michele A. Chapnick, being duly sworn, deposes and says that she served a copy of the attached on * by the Court’s efiling system to: Brian W. Benbow (0071404) Benbow Law Offices 265 Sunrise Center Drive Zanesville, OH 43701 bwb1974@yahoo.com Attorney for Plaintiff /s/ Michele A. Chapnick MICHELE A. CHAPNICK (0084349) GREGORY, MEYER & CHAPNICK, P.C. Attorneys for Defendant Travelers 340 E. Big Beaver, Ste. 520 Troy, MI 48083 (248) 689-3920/(248) 689-3920 - Fax mchapnick@gregorylaw.com 13