525    Motion to Withdraw or Amend Admission

Fed. R. Civ. P. 36(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. ... [T]he court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.

Fed. R. Civ. P. 6(b) Extending Time.

(1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time: …

(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

Any matter admitted under Fed. R. Civ. P. 36 is conclusively established unless the Board, upon motion, permits withdrawal or amendment of the admission. [ Note 1.] See TBMP § 407.04. This applies both to matters expressly admitted; and to those deemed admitted for failure to timely respond to a request for admission, where there is no persuasive showing that the failure to timely respond was the result of excusable neglect. [ Note 2.] See TBMP § 407.03(a) and TBMP § 407.04. For this reason, in instances where a party fails to respond to a request for admission, the serving party need not file a motion requesting that the matter be deemed admitted.

In order to avoid admissions resulting from a failure to respond, a responding party may pursue two separate avenues for relief, namely: a party may either (1) move to reopen its time to serve responses to the outstanding admission requests because its failure to timely respond was the result of excusable neglect under Fed. R. Civ. P. 6(b)(1)(B); or (2) the moving party implicitly acknowledges that the responses are late, deemed admitted, and moves to withdraw and amend its admissions pursuant to Fed. R. Civ. P. 36(b). The crucial distinction is that under Fed. R. Civ. P. 6(b)(1)(B), the moving party is seeking to be relieved of the untimeliness of its response, so that the admissions would not be deemed admitted as put. [ Note 3.]

Upon motion under Fed. R. Civ. P. 36(b), the Board may permit withdrawal or amendment of an admission when the presentation of the merits of the proceeding will be subserved thereby, and the propounding party fails to satisfy the Board that withdrawal or amendment will prejudice said party in maintaining its action or defense on the merits. [ Note 4.] The timing of a motion to withdraw or amend an admission plays a significant role in the Board’s determination of whether the propounding party will be prejudiced by withdrawal or amendment. [ Note 5.] Cf. TBMP § 507.02.

NOTES:

 1.   See Fed. R. Civ. P. 36(b).

 2.   See Fed. R. Civ. P. 6(b)(1)(B) and Fed. R. Civ. P. 36.

 3.   Giersch v. Scripps, 85 USPQ2d 1306, 1307-09 (TTAB 2007) (respondent sought to show both excusable neglect to be relieved of the untimeliness of its responses under Fed. R. Civ. P. 6(b)(2) and, alternatively, to withdraw the effective admissions under Fed. R. Civ. P. 36(b) and have responses accepted; Board granted the motion under Fed. R. Civ. P. 36(b)). Please Note: as part of general restyling, effective December 1, 2007, former Fed. R. Civ. P. 6(b)(2) is now Fed. R. Civ. P. 6(b)(1)(B).

 4.   Fed. R. Civ. P. 36(b); Giersch v. Scripps Networks, Inc., 85 USPQ2d 1306, 1308-09 (TTAB 2007) (motion to withdraw effective admissions granted); Hobie Designs Inc. v. Fred Hayman Beverly Hills Inc., 14 USPQ2d 2064, 2065 (TTAB 1990) (amendment permitted where the requested admissions were ambiguous and conclusory and possible prejudice avoided by extending discovery period); 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, 1235-36 (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). See also American Automobile Association (Inc.) v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 19 USPQ2d 1142, 1144-45 (5th Cir. 1991) (court may not sua sponte withdraw or ignore admissions without a motion to withdraw or amend).

 5.   See Hobie Designs Inc. v. Fred Hayman Beverly Hills Inc., 14 USPQ2d 2064, 2065 (TTAB 1990) (motion to withdraw admissions granted when propounding party’s testimony period had not yet opened); Johnston Pump/General Valve Inc. v. Chromalloy American Corp., 13 USPQ2d 1719, 1721 (TTAB 1989) (motion to withdraw admissions granted when case was still in pretrial stage).