524 Motion to Test Sufficiency of Response to Requests for Admission
524.01 In General
Fed. R. Civ. P. 36(a)(3) Time to Respond; Effect of Not Responding.
A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.
Fed. R. Civ. P. 36(a)(6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. ...
37 CFR § 2.120(h) Request for admissions.
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- (2) When a party files a motion to determine the sufficiency of an answer or objection to a request for an admission, the case will be suspended by the Board with respect to all matters not germane to the motion. After filing and service of the motion, no party should file any paper which is not germane to the motion, except as otherwise specified in the Board’s suspension order. Nor may any party thereafter serve any additional discovery until the period of suspension is lifted or expires by or under order of the Board. The filing of a motion to determine the sufficiency of an answer or objection to a request for admission shall not toll the time for a party to comply with any disclosure requirement or to respond to any outstanding discovery requests or to appear for any noticed discovery deposition.
If a propounding party is dissatisfied with a responding party’s answer or objection to a request for admission, and wishes to obtain a ruling on the sufficiency thereof, the propounding party may file a motion with the Board to determine the sufficiency of the response. [ Note 1.] Cf. TBMP § 523.01 (Motion to Compel Discovery – In General).
If the Board, upon motion to test the sufficiency of a response to a request for admission, determines that an answer does not comply with the requirements of Fed. R. Civ. P. 36(a), it may order either that the matter is deemed admitted or that an amended answer be served. If the Board determines that an objection is not justified, it will order that an answer be served. [ Note 2.]
Generally, if there is an admission or a denial, the Board will not find the response to be insufficient even if the responding party included an explanation or clarification of the admission or denial, or admitted after first denying. [ Note 3.] If no response is timely served to a request for admission, the matter is automatically deemed admitted, and no motion is necessary. [ Note 4.] See TBMP § 525 and TBMP § 527.01(d) for further discussion.
NOTES:
1. See 37 CFR § 2.120(h); Fed. R. Civ. P. 36(a); Volkswagenwerk Aktiengesellschaft v. Ridewell Corp., 188 USPQ 690, 691 (TTAB 1975); Watercare Corp. v. Midwesco-Enterprise, Inc., 171 USPQ 696, 697 n.7 (TTAB 1971). Cf. 37 CFR § 2.120(e).
2. Fed. R. Civ. P. 36(a).
3. Cf. Fed. R. Civ. P. 36(a)(4 – 6) Advisory Committee Notes (1970 amendment) regarding improper responses which may be considered effective admissions.
4. Fed. R. Civ. P. 36(a)(3).
524.02 Special Requirements for Motion
37 CFR § 2.120(h) Request for admissions.
- (1) ... The motion shall include a copy of the request for admission and any exhibits thereto and of the answer or objection. The motion must be supported by a written statement from the moving party that such party or the attorney therefor has made a good faith effort, by conference or correspondence, to resolve with the other party or the attorney therefor the issues presented in the motion and has been unable to reach agreement. If issues raised in the motion are subsequently resolved by agreement of the parties, the moving party should inform the Board in writing of the issues in the motion which no longer require adjudication.
A motion to determine the sufficiency of a response to a request for admission must include a copy of the request for admission (and any exhibits thereto) and of the answer or objection. [ Note 1.]
In addition, the motion must be supported by a written statement from the moving party that such party or its attorney has made a good faith effort, by conference or correspondence, to resolve with the other party or its attorney the issues presented in the motion, and has been unable to reach agreement. [ Note 2.] Cf. TBMP § 523.02.
In the event that issues raised in the motion are subsequently resolved by the parties, the moving party should immediately inform the Board in writing, filed through ESTTA, of the issues in the motion which no longer require determination. [ Note 3.]
NOTES:
1. 37 CFR § 2.120(h). Cf. 37 CFR § 2.120(e).
2. 37 CFR § 2.120(h). Cf. 37 CFR § 2.120(e); Amazon Technologies Inc. v. Wax, 93 USPQ2d 1702, 1705 (TTAB 2009).
524.03 Time for Filing Motion
37 CFR § 2.120(h) Request for admissions.
- (1) Any motion by a party to determine the sufficiency of an answer or objection to a request made by that party for an admission must be filed prior to the commencement of the first testimony period, as originally set or as reset. ...
- (2) When a party files a motion to determine the sufficiency of an answer or objection to a request for an admission, the case will be suspended by the Board with respect to all matters not germane to the motion. After filing and service of the motion, no party should file any paper which is not germane to the motion, except as otherwise specified in the Board’s suspension order. … The filing of a motion to determine the sufficiency of an answer or objection to a request for admission shall not toll the time for a party to comply with any disclosure requirement or to respond to any outstanding discovery requests or to appear for any noticed discovery deposition.
A motion to test the sufficiency of a response to a request for admission does not necessarily have to be filed during the discovery period, but it should be filed within a reasonable time after service of the response believed to be inadequate and, in any event, must be filed prior to the commencement of the first testimony period, as originally set or as reset. [ Note 1.] As with a motion to compel, once the first testimony period opens, a motion to test the sufficieny filed thereafter is untimely, even if testimony periods are subsequently reset. If testimony periods are reset prior to the opening of the plaintiff’s testimony period-in-chief as originally set, a motion to test sufficiency will be timely if it is filed before the rescheduled opening of plaintiff’s testimony period. If testimony periods are reset prior to the opening of the plaintiff's testimony period-in-chief, a motion to compel filed before a first trial period opens is timely. If testimony periods are reset prior to the opening of the plaintiff’s testimony period-in-chief, a motion to compel filed before a first trial period opens is timely. However, once the first testimony period opens, a motion to test sufficiency filed thereafter is untimely, even if it is filed prior to the opening of a rescheduled or reset testimony period-in-chief for plaintiff. [ Note 2.] Please Note: 37 CFR § 2.196, which allows an action to be taken the succeeding day after a Saturday, Sunday or Federal holiday that is not a Saturday, Sunday or Federal holiday when the day, or last date, to take such action falls on a Saturday, Sunday or Federal holiday, is not applicable to the opening of a designated period. Thus, if the first testimony period opens on a Saturday, Sunday or Federal holiday, a motion to test sufficiency filed on the next business day is untimely and will not be considered. For more information, see TBMP § 112. There is no provision in the rule for Board discretion to consider an untimely motion to test the sufficiency of a response to a request for admission. Trial schedules include a sixty-day period between the close of discovery and the opening of the first testimony period to allow time for the filing of any necessary discovery motions. Cf. TBMP § 523.03.
NOTES:
1. 37 CFR § 2.120(h)(1); Cf. Johnson & Johnson v. Diamond Medical, Inc., 183 USPQ 615, 617 (TTAB 1974) (motion to compel timely even if filed after close of discovery).
2. 37 CFR § 2.120(h)(1); Watercare Corp. v. Midwesco-Enterprise, Inc., 171 USPQ 696, 697-98 n.7 (TTAB 1971) (opposer’s motion at final hearing seeking ruling on propriety of applicant’s responses to requests for admission was manifestly untimely; discovery is a pre-trial procedure and all matters pertinent thereto should be resolved prior to trial);Cf. La Maur, Inc. v. Bagwells Enterprises Inc., 193 USPQ 234, 235 (Comm’r 1976) (motion for summary judgment filed during the period for taking testimony untimely).
524.04 Failure to File Motion
If a party that served a request for admission receives a response thereto which it believes to be inadequate, but fails to file a motion to test the sufficiency of the response, it may not thereafter be heard to complain about the sufficiency thereof. [ Note 1.] Cf. TBMP § 523.04.
NOTES:
1. 37 CFR § 2.120(h)(1); Watercare Corp. v. Midwesco-Enterprise, Inc., 171 USPQ 696, 697-98 n.7 (TTAB 1971).