407.03 Responses to Requests for Admission
407.03(a) Time for Service of Responses
37 C.F.R. § 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)(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)(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. The time to respond may be extended upon stipulation of the parties, or upon motion granted by the Board, or by order of the Board, but the response may not be due later than the close of discovery. [ Note 2.] The resetting of a party’s time to respond to any outstanding requests for admission will not result in the automatic rescheduling of the discovery and/or testimony periods; such dates will be rescheduled only upon stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. [ Note 3.]
Service of responses to requests for production must be made by email, unless otherwise stipulated, or if the serving party attempted service by email but service could not be made due to technical problems or extraordinary circumstances, by the manner described in 37 C.F.R. § 2.119(b)(1) - 37 C.F.R. § 2.119(b)(4); however, if a party is not domiciled in the United States or represented by an attorney or authorized representative in the United States, then no party to the proceeding is eligible to use postal mail as a manner of service. [ Note 4.] TBMP § 113.05. Additionally, even if service of requests for admission is made by postal service or overnight courier, 37 C.F.R. § 2.119(c) has been amended to remove the past provision that allowed an additional five days to the proscribed response period after the date of service so that no additional time for service of discovery responses is allowed for responding to the requests under any manner of service. [ Note 5.] 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 6.]
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 7.] unless the party is able to show that its failure to timely respond was the result of excusable neglect [ Note 8.] 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 9.] 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 C.F.R. § 2.120(a)(3).
4. 37 C.F.R. § 2.119(b); 37 C.F.R. § 2.119(d). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69959 (October 7, 2016).
5. See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69960 (October 7, 2016).
6. Fed. R. Civ. P. 36(a)(3).
7. 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).
8. 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).
9. 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).
407.03(b) Nature of Responses
Fed. R. Civ. P. 36(a)(4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.
Fed. R. Civ. P. 36(a)(5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial.
Responses to requests for admission must be made in writing, and should include an answer or objection to each matter of which an admission is requested. [ Note 1.]
The Board prefers that the responding party reproduce each request immediately preceding the answer or objection thereto.
An answer must admit the matter of which an admission is requested, deny the matter, or state in detail the reasons why the responding party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify as much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. [ Note 2.]
If the responding party objects to a request for admission, the reasons for objection must be stated. If a responding party believes that a matter of which an admission has been requested presents a genuine issue for trial, the party may not object to the request on that ground alone. Rather, the party may deny the matter; alternatively, the party may set forth reasons why it cannot admit or deny the matter. [ Note 3.]
It is generally inappropriate for a party to respond to requests for admission by filing a motion attacking them, such as a motion to strike, a motion to suppress, a motion for a protective order, etc. Rather, the party ordinarily should respond by answering those requests that it believes to be proper and stating its reasons for objection to those that it believes to be improper. [ Note 4.] See TBMP § 410. For information regarding a party’s duty to supplement requests for admissions, see TBMP § 408.03
NOTES:
1. Fed. R. Civ. P. 36(a).
2. Fed. R. Civ. P. 36(a).
3. Fed. R. Civ. P. 36(a).
4. Emilio Pucci International BV v. Sachdev, 118 USPQ2d 1383, 1385 (TTAB 2016).
407.03(c) Signature of Responses
Answers and objections to requests for admission may be signed either by the responding party, or by its attorney. [ Note 1.] However, an attorney who signs answers or objections to requests for admission risks becoming a witness or disqualification from representation. [ Note 2.]
NOTES:
1. Fed. R. Civ. P. 36(a)(3).
2. See 37 C.F.R. § 11.307. Cf. Allstate Insurance Co. v. Healthy America Inc., 9 USPQ2d 1663, 1666 n.4 (TTAB 1988).