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HARRIS COUNTY, TEXAS
MARATHON OIL EF, LLC,
JUDICIAL DISTRICT
MARATHON’S MOTION TO WITHDRAW DEEMED ADMISSIONS
Defendant Marathon Oil EF, LLC (“Marathon”) moves for this Court to withdraw its
deemed admissions under Rule 198.3 and would show as follows:
served requests for admission on Marathon
Ex. A, 1776’s Request for Admissions (“RFAs”). Because of an inadvertent
mistake made by counsel, Marathon failed to respond to those RFAs by the deadline, which was
Ex. C, Aug. 24, 2020 Email from R. Drinnon to S. Aravind. Later that same day,
Marathon served its RFA re See Ex. D, Marathon’s RFA
asserting that the RFAs had been deemed admitted. See Ex. C, Aug. 26, 2020 Email from R.
Marathon advised 1776 that it was planning to file a motion to withdraw those deemed
admissions and requested that the parties submit an agreed-upon motion, but 1776 refused.
Aug. 27, 2020 Email from R. Drinnon to S. Aravind.
4811-5655-5465
APPLICABLE LAW
“A trial court has broad discretion to permit or deny the withdrawal of deemed admissions.”
Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). Withdrawal or amendment of an admission
is permitted on a showing of good cause and a finding by the trial court that (1) the party relying
on the deemed admission will not be unduly prejudiced, and (2) presentation of the merits of the
Wal–Mart Stores , 968 S.W.2d
354, 356 (Tex. 1998); Stelly, 927 S.W.2d at 622. “‘Good cause’ is
respond is accidental or the result of mistake, rather than intentional or the result of conscious
indifference.” , 968 S.W.2d at 356; , 927 S.W.2d at 622. “Even a slight excuse will
suffice, especially when delay or prejudice to the opposing party will not result.” Spiecker v.
, 971 S.W.2d 536, 538 (Tex. App.—Dallas 1997, no writ); North River Ins. Co. of New
Jersey v. Greene, 824 S.W.2d 697, 700 (Tex. App.—El Paso 1992, writ denied). The party seeking
withdrawal of deemed admissions has the burden to establish good cause. Webb v. Ray
S.W.2d 458, 461 (Tex. A
ARGUMENT
There is good cause for the deemed admissions to be withdrawn.
As explained by the accompanying declaration of Santosh Aravind, Ex. B, Marathon’s
failure to respond to 1776’s RFA in a timely fashion was the result of an inadvertent mistake—an
oversight—and was not the result of intentional or conscious indifference. The same day that 1776
advised Marathon that it had not submitted RFA responses on a timely basis, Marathon provided
d the requirement of good cause for withdrawal
of the deemed admissions.
4811-5655-5465
1776 will not be prejudiced by reliance on the deemed admissions, and withdrawal of the
deemed admissions will not preclude presentation of the merits of this case.
Marathon served RFA responses on 1776 one day late, on the same day it learned it had
failed to timely respond to 1776’s RFAs. Common sense and Texas case law confirm that 1776
did not suffer any prejudice from this one-day delay.
45 S.W.3d 772, 776 (Tex. App.—Tyler 2001, no pet.) (no prejudice when late discovery responses
were produced eight weeks before trial); Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per
curiam) (holding that trial court should have granted a new trial and allowed the deemed
admissions to be withdrawn upon learning that the summary judgment was granted solely because
“Undue prejudice depends on whether withdrawing an admission or filing a late response
will delay trial or significantly hamper the opposing party’s ability to prepare for it.”
S.W.3d at 442. Here, there is no colorable argument that Marathon’s barely tardy RFA responses
will delay trial or significantly hamper 1776’s ability to prepare for that trial, especially when this
Court has advised the parties that it will enter a new DCO with a new trial date.
CONCLUSION
ully requests that the Court permit the
withdrawal of deemed admissions and substitute the RFA responses submitted by Marathon on
Respectfully submitted,
By: /s/ Santosh Aravind
Texas Bar No. 24095052
4811-5655-5465
Texas Bar No. 24097443
ONNICO LLP
303 Colorado Street
Austin, TX 78701
(512) 495-6300
(512) 495-6399 Fax
ATTORNEYS FOR DEFENDANT MARATHON
4811-5655-5465
CERTIFICATE OF CONFERENCE
I hereby certify that on August 27, 2020, I a
was filing this motion, and 1776’s counsel indicated that he was opposed to this motion, as
reflected in Exhibit C.
Santosh Aravind
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on the following
counsel of record through electronic filing on August 28, 2020:
rdrinnon@mccathernlaw.com
mrobak@mccathernlaw.com
Eric Utermohlen
eutermohlen@mccathernlaw.com
2000 West Loop South
ATTORNEYS FOR PLAINTIFF
Santosh Aravind
4811-5655-5465
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HARRIS COUNTY, TEXAS MARATHON OIL EF, LLC, JUDICIAL DISTRICT MARATHON’S MOTION TO WITHDRAW DEEMED ADMISSIONS Defendant Marathon Oil EF, LLC (“Marathon”) moves for this Court to withdraw its deemed admissions under Rule 198.3 and would show as follows: served requests for admission on Marathon Ex. A, 1776’s Request for Admissions (“RFAs”). Because of an inadvertent mistake made by counsel, Marathon failed to respond to those RFAs by the deadline, which was Ex. C, Aug. 24, 2020 Email from R. Drinnon to S. Aravind. Later that same day, Marathon served its RFA re See Ex. D, Marathon’s RFA asserting that the RFAs had been deemed admitted. See Ex. C, Aug. 26, 2020 Email from R. Marathon advised 1776 that it was planning to file a motion to withdraw those deemed admissions and requested that the parties submit an agreed-upon motion, but 1776 refused. Aug. 27, 2020 Email from R. Drinnon to S. Aravind. 4811-5655-5465 APPLICABLE LAW “A trial court has broad discretion to permit or deny the withdrawal of deemed admissions.” Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). Withdrawal or amendment of an admission is permitted on a showing of good cause and a finding by the trial court that (1) the party relying on the deemed admission will not be unduly prejudiced, and (2) presentation of the merits of the Wal–Mart Stores , 968 S.W.2d 354, 356 (Tex. 1998); Stelly, 927 S.W.2d at 622. “‘Good cause’ is respond is accidental or the result of mistake, rather than intentional or the result of conscious indifference.” , 968 S.W.2d at 356; , 927 S.W.2d at 622. “Even a slight excuse will suffice, especially when delay or prejudice to the opposing party will not result.” Spiecker v. , 971 S.W.2d 536, 538 (Tex. App.—Dallas 1997, no writ); North River Ins. Co. of New Jersey v. Greene, 824 S.W.2d 697, 700 (Tex. App.—El Paso 1992, writ denied). The party seeking withdrawal of deemed admissions has the burden to establish good cause. Webb v. Ray S.W.2d 458, 461 (Tex. A ARGUMENT There is good cause for the deemed admissions to be withdrawn. As explained by the accompanying declaration of Santosh Aravind, Ex. B, Marathon’s failure to respond to 1776’s RFA in a timely fashion was the result of an inadvertent mistake—an oversight—and was not the result of intentional or conscious indifference. The same day that 1776 advised Marathon that it had not submitted RFA responses on a timely basis, Marathon provided d the requirement of good cause for withdrawal of the deemed admissions. 4811-5655-5465 1776 will not be prejudiced by reliance on the deemed admissions, and withdrawal of the deemed admissions will not preclude presentation of the merits of this case. Marathon served RFA responses on 1776 one day late, on the same day it learned it had failed to timely respond to 1776’s RFAs. Common sense and Texas case law confirm that 1776 did not suffer any prejudice from this one-day delay. 45 S.W.3d 772, 776 (Tex. App.—Tyler 2001, no pet.) (no prejudice when late discovery responses were produced eight weeks before trial); Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam) (holding that trial court should have granted a new trial and allowed the deemed admissions to be withdrawn upon learning that the summary judgment was granted solely because “Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party’s ability to prepare for it.” S.W.3d at 442. Here, there is no colorable argument that Marathon’s barely tardy RFA responses will delay trial or significantly hamper 1776’s ability to prepare for that trial, especially when this Court has advised the parties that it will enter a new DCO with a new trial date. CONCLUSION ully requests that the Court permit the withdrawal of deemed admissions and substitute the RFA responses submitted by Marathon on Respectfully submitted, By: /s/ Santosh Aravind Texas Bar No. 24095052 4811-5655-5465 Texas Bar No. 24097443 ONNICO LLP 303 Colorado Street Austin, TX 78701 (512) 495-6300 (512) 495-6399 Fax ATTORNEYS FOR DEFENDANT MARATHON 4811-5655-5465 CERTIFICATE OF CONFERENCE I hereby certify that on August 27, 2020, I a was filing this motion, and 1776’s counsel indicated that he was opposed to this motion, as reflected in Exhibit C. Santosh Aravind CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on the following counsel of record through electronic filing on August 28, 2020: rdrinnon@mccathernlaw.com mrobak@mccathernlaw.com Eric Utermohlen eutermohlen@mccathernlaw.com 2000 West Loop South ATTORNEYS FOR PLAINTIFF Santosh Aravind 4811-5655-5465