407.04    Effect of Admission

Any matter admitted (either expressly, or for failure to timely respond) under Fed. R. Civ. P. 36(a) is conclusively established unless the Board, on motion, permits withdrawal or amendment of the admission or the Board permits a reopening of the time for responding to the admission requests. [ Note 1.]

For further information concerning motions to withdraw or amend an admission, see TBMP § 525.

An admission made by a party under Fed. R. Civ. P. 36(a) is only for the purpose of the pending proceeding. It is not an admission for any other purpose, nor may it be used against that party in any other proceeding. [ Note 2.]

The denial of a request for admission establishes neither the truth nor the falsity of the assertion, but rather leaves the matter for proof at trial. [ Note 3.]

NOTES:

 1.   Fed. R. Civ. P. 36(b); Fed. R. Civ. P. 6(b)(1)(B). See Texas Department of Transportation v. Tucker, 95 USPQ2d 1241, 1244 (TTAB 2010) (admission conclusively establishes matter that is the subject of request for admission, subsequent argument to the contrary in response brief insufficient to raise genuine issue of material fact); Sinclair Oil Corp. v. Kendrick, 85 USPQ2d 1032, 1037 n.8 (TTAB 2007) ("An admission in response to a request for admission ‘conclusively establishe[s]’ the matter that is subject of that request . . . . However, a denial in response to a request for admission is merely a refusal to stipulate to certain matter."). See also American Automobile Association, v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 19 USPQ2d 1144 (5th Cir. 1991) (an admission not withdrawn or amended cannot be rebutted by contrary testimony at trial); Baseball America Inc. v. Powerplay Sports Ltd., 71 USPQ2d 1844, 1846 n.7 (TTAB 2004) (because proceedings were deemed suspended prior to service of requests for admissions, Board declined to treat requests for admissions as having been admitted by applicant for failure to timely respond, considering only those requests applicant expressly admitted); Olin Corp. v. Hydrotreat, Inc., 210 USPQ 63, 65 n.4 (TTAB 1981) (anything not admitted is not established).

 2.   Fed. R. Civ. P. 36(b).

 3.   Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1957 n.10 (TTAB 2008).