407.03(a) Time for Service of Responses
37 CFR § 2.120(a)(3) … Responses to interrogatories, requests for production of documents and things, and requests for admission must be served within thirty days from the date of service of such discovery requests.
Fed. R. Civ. P. 36(a) Requests for Admission.
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.
Fed. R. Civ. P. 6(b) Extending Time.
Fed. R. Civ. P. 6(b)(1)(B) When an act may or must be done within a specified time, the court may, for good cause, extend the time: …on motion made after the time has expired if the party failed to act because of excusable neglect.
Responses to requests for admission must be served within 30 days after the date of service of the requests. [ Note 1.] TBMP § 403.03. If service of the requests is made by first-class mail, Priority Mail Express®, or overnight courier, the date of mailing or of delivery to the overnight courier is considered to be the date of service, and five extra days are allowed for responding to the requests. [ Note 2.] TBMP § 113.05 and TBMP § 403.03. In instances where the parties have agreed to electronic service, e.g. service by facsimile or email, no additional time is allowed for responding to the requests. [ Note 3.] TBMP § 403.03
Under Fed. R. Civ. P. 36, a requested admission is deemed admitted unless a written answer or objection is provided to the requesting party within thirty days after service of the request, or within such time as the parties agree to in writing. [ Note 4.]
If a party on which requests for admission have been served fails to timely respond thereto, the requests will stand admitted by operation of law [ Note 5.] unless the party is able to show that its failure to timely respond was the result of excusable neglect [ Note 6.] or unless a motion to withdraw or amend the admissions is filed pursuant to Fed. R. Civ. P. 36(b) and granted by the Board. [ Note 7.] It is not necessary to file a motion to deem requests for admissions admitted when no response is served, since the admissions are deemed admitted by operation of Fed. R. Civ. P. 36(a).
For further information concerning motions pursuant to Fed. R. Civ. P. 36(b) to withdraw or amend admissions, see TBMP § 525.
NOTES:
1. Fed. R. Civ. P. 36(a)(3); 37 CFR § 2.120(a)(3).
3. MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 72 Fed. Reg. 42242, 42250 (August 1, 2007) ("As for agreed use by parties of email or fax for forwarding of service copies, the Office confirms that § 2.119(c) would not apply to service by electronic transmission (email or fax) under § 2.119(b)(6).").
4. Fed. R. Civ. P. 36(a)(3).
5. Fram Trak Industries v. Wiretracks LLC, 77 USPQ2d 2000, 2005 (TTAB 2006) (requests for admissions deemed admitted by respondent’s failure to respond to petitioner’s requests for admissions); Pinnochio’s Pizza Inc. v. Sandra Inc., 11 USPQ2d 1227, 1228 n.5 (TTAB 1989) (same).
6. Fed. R. Civ. P. 6(b)(1)(B); Giersch v. Scripps Networks Inc., 85 USPQ2d 1306, 1307 (TTAB 2007) (counsel’s mistaken belief that opposing counsel would grant an extension for responding to admissions did not constitute excusable neglect to reopen time to respond under Fed. R. Civ. P. 6(b)); Hobie Designs Inc. v. Fred Hayman Beverly Hills Inc., 14 USPQ2d 2064, 2064 n.1 (TTAB 1990) (to the extent applicant by its motion sought to be relieved of the untimeliness of its response, motion was not well taken because the reasons for failing to timely respond did not constitute excusable neglect).
7. Fed. R. Civ. P. 36(b); Giersch v. Scripps Networks Inc., 85 USPQ2d 1306, 1307 (TTAB 2007) (finding merits of action subserved by withdrawal of admissions and replacement with later served responses and finding no prejudice to petitioner under Fed. R. Civ. P. 36(b)); Hobie Designs Inc. v. Fred Hayman Beverly Hills Inc., 14 USPQ2d 2064, 2065 (TTAB 1990) ("...where failure to timely respond to a request for admission has harsh result, Rule 36(b) provides method for obtaining relief."). See also American Automobile Association (Inc.) v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 19 USPQ2d 1142, 1144 (5th Cir. 1991) (court may not sua sponte withdraw or ignore admissions without a motion to withdraw or amend); Johnston Pump/General Valve Inc. v. Chromalloy American Corp., 13 USPQ2d 1719, 1721 (TTAB 1989) (presentation of merits of case aided by relieving opposer of admission on relevant issue and prejudice avoided by allowing applicant limited discovery as to the amended answer; BankAmerica Corp. v. International Travelers Cheque Co., 205 USPQ 1233, 1235 (TTAB 1979) (motion to withdraw admissions by default denied, but to extent admissions are contradicted by evidence, they will not be relied on for purposes of deciding whether entry of summary judgment is appropriate); Questor Corp. v. Dan Robbins & Associates, Inc., 199 USPQ 358, 361 n.2 (TTAB 1978) (by failing to answer requests for admissions, opposer admitted that it abandoned use of certain registered marks), aff’d, 599 F.2d 1009, 202 USPQ 100 (CCPA 1979).