Solid State Elevator Corporation v. Arcbest Corp.

MEMO ENDORSED \X7 Atcoragcys At Law GEORGE W. WRIGHT & ASSOCIATES, LLC Application DENIED. Defendant ABF may take a Fed. R Civ. P. 30(b)(6) deposition of Plaintiff Solid State by June George W. Weight* May 20, 2021 30, 2021. Such deposition shall be limited to the issues Narinder S. Parmar” raised in RFAs 9, 10, 31, and 35-37. The Court will not entertain any further briefing regarding the RFAs.

SO ORDERED.

VIA ECF xe ) Hon, Ona T. Wang, U.S.M.J.| re Daniel Patrick Moynihan United States Courthouse Ona T. Wang 6/10/21 Pearl Street U.S.M.J.

New York, NY 10007-1312 Re: Solid State Elevator Corporation v. ABF Freight System, Ine.

Civil Action No. 20-cv-2419 (RA) (OTW) Dear Magistrate Wang: We write on behalf of defendant ABF Freight System, Inc. (‘ABF”) pursuant to the Court’s May 12, 2021 Memo Endorsed Order (Doc. 39) in support of ABF’s motion pursuant to Fed. R. Civ. P. 36 for an Order deeming certain matters admitted by plaintiff.

I. Summary of Relevant Discovery, On October 7, 2020 ABF served a set of Requests for Admissions (“RFAs”) accompanied by a three-part supplemental Interrogatory directed to any matters denied by plaintiff. Interrogatory part (A) requests plaintiff to set forth all facts supporting any denial of an RFA, ABF received plaintiff's initial RFA responses on or about November 25, Main Street 4020, The undersigned wrote to plaintiffs counsel on December 2 and 10, Sanaa) ne 2020 advising that plaintiffs Interrogatory (A) responses accompanying its REED denials of RFA Nos. 9, 10, 31, 35-37 failed to state facts supporting plaintiffs denials. On December 18, 2020 we sent an email letter to U.S. District Judge lars Ronnie Abrams advising the Court of ABF’s objections to plaintiff's responses Pine Street, 7th Floor to RFA and Interrogatory (A) Nos. 9, 10, 31 and 35-37.

New York, NY 10605 wright-associate.com *Member NJ & NY Bars \X/ Agtorneys At Law GEORGE W. WRIGHT & ASSOCIATES, LLC On January 6 and 15, 2021 we sent follow-up letters to plaintiffs counsel regarding its responses to RFA and Interrogatory (A) Nos. 9, 10, 31 and 35-37.

Our January 15 letter confirmed our telephone agreement with plaintiffs counsel on that date that they would supplemental their RFA/nterrogatory responses as follows: (A) Nos. 9 and 10: Plaintiff would particularize any facts supporting its denial that plaintiff authorized its seller-consignor, Hollister-Whitney Elevator Corp. (“Hollister-Whitney”), to arrange for the interstate transportation of the shipment to plaintiff, or at least knew Hollister- Whitney would arrange the shipment. Plaintiff's bare statements that plaintiff bought the machine from Hollister-Whitney are evasive and unresponsive; (B) No. 31: Plaintiff would particularize any facts substantiating its denial that its representative asked ABF’s delivery driver to unload the subject elevator machine on delivery to the New York City destination construction site. Plaintiffs bare statement that ABF’s driver unloaded □ the freight is evasive and unresponsive, and (C) Nos. 35 -37: Plaintiff agreed to particularize any facts substantiating its denials that, prior to the shipment, plaintiff did not advise (i) Hollister- Whitney, (ii) Hollister-Whitney’s involved freight broker GlobalTranz or (iii) ABF that plaintiff would incur a construction delay penalty to the building project owner. Plaintiff's bare statements, “Delivery penalties are standard industry practice” are evasive and unresponsive.

On or about March 15, 2021, plaintiff served Supplemental Responses to ABEF’s RFA/Interrogatory (A) Nos. 9, 10, 31 and 35-37. Plaintiff's March 15 Supplemental Responses, however, still fail to correct its previous evasive and unresponsive answers to Interrogatory (A).

In the parties’ March 31, 2021 joint status report (Doc. 33) to the Court, ABF again set forth in detail its objections to the deficiencies in plaintiff's evasive responses to RFA/Interrogatory (A) Nos. 9, 10, 31 and 35-37.

Based on plaintiffs prolonged, repeated deficient answers to ABF’s REA/Interrogatory (A) Nos. 9, 10, 31 and 35-37 summarized in the attached W/ Attorneys At Law GEORGE W. WRIGHT & ASSOCIATES, LLC Appendix, plaintiff should be deemed pursuant to Fed. R. Civ. P. 36(a)(6) to admit the following facts: (1) Plaintiff authorized its seller-consignor Hollister-Whitney to arrange for ABF’s interstate transportation of the subject cargo and plaintiff actually knew that Hollister-Whitney would be arranging the transportation; (2) When ABF’s delivery driver arrived with the shipment at the New York City destination construction site, a representative of plaintiff asked the driver to unload the subject elevator machine; and (3) Plaintiff did not give pre-shipment notice to Hollister- Whitney, Hollister- Whitney’s freight broker GlobalTranz or ABF that plaintiff could incur a construction delay penalty to the project owner in connection with the subject shipment.

Il. Rule 36 Case Authorities, Fed. R. Civ. P. 36 (a)(6) provides, in relevant part: The requesting party may move to determine the sufficiency of an answer.... 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.

The courts have discretion under Rule 36 to deem requests for admissions admitted when a party’s responses are insufficient and the party has had an opportunity to correct the deficiencies. Wiwa v. Royal Dutch Petroleum Co., 2009 U.S. Dist. LEXIS 45621, *18 (S.D.N.Y. 2009) [“If a court finds a response insufficient, ‘the court may order either that the matter is admitted or that an amended answer be served’"]; M & T Mortg. Corp, v. Miller, 2008 U.S. Dist. LEXIS 70507, *11 (E.D.N.Y. 2008) [As Better Homes has failed to undertake reasonable inquiries to enable it to admit or deny the requests at issue, notwithstanding that more than adequate opportunity has been provided for it to do so, [the] Requests [for admissions]... are also hereby deemed admitted by Better Homes”]; SEC v. Batterman, 2002 U.S, Dist. LEXIS 18556, *20 (S.D.N.Y. 2002) [The Battermans' responses [to requests for admissions] plainly do not meet ... [Rule 36(a)] requirements. If the Battermans now were permitted to respond to the RFAs, the Commission W/ Attorneys At Law GEORGE W. WRIGHT @& ASSOCIATES, LLC would be prejudiced because many of the responses are nonresponsive, and discovery has closed ... Accordingly, the RFAs are deemed admitted”); Baker v. David A. Dorfman, P.L.L.C., 2000 U.S. Dist. LEXIS 4893, *19 (S.D.N.Y. 2000) [“Finally, plaintiff would be prejudiced if defendants were now permitted to respond to plaintiff's requests for admissions, as the defendants' proposed responses are nonresponsive”’].

Discovery has closed and plaintiff has had six (6) months to serve properly responsive answers to ABF’s Interrogatory (A) supporting plaintiff's denials of RFA Nos. 9, 10, 31 and 35-37. These facts weigh strongly in favor of the Court granting ABF an Order deeming plaintiff to admit the above RFAs for which plaintiff has shown no good faith reason for denying.

III. Conclusion.

Defendant ABF Freight System, Inc. respectfully submits that plaintiff should be deemed to admit the subjects of ABF’s RFA and Interrogatory (A) Nos. 9, 10, 31 and 35-37.

We thank you for your attention and consideration.

Respectfully submitted, George W. Wright GWW:ds cc. Michael M. Rabinowitz, Esq. (Via ECF) Lisa A. Gutman, Esq. (Via ECF) APPENDILA LU ADF 5 RULE 30 LET DEAN VERE IMZIN ABF’S REQUESTS FOR PLAINTIFF’S RFA/ ADMISSION AND INTERROGATORY ABF’S OBJECTIONS TO INTERROGATORY RESPONSES (3/15/21) | PLAINTIFF’?S RESPONSES RFA No.9: SOLID STATE | RFA No. 9 Resp.: ABF’s RFA No. 9 and authorized Hollister-Whitney Interrogatory (A) seek the facts Elevator Corp. to arrange the | Deny. supporting plaintiff's denial that it interstate motor transportation “authorized Hollister-Whitney of the subject shipment from Elevator Corp. to arrange the Quincy, Illinois to New York interstate motor transportation of City. the subject shipment.” Plaintiff's continued non sequitur statement Interrog. No. 9(A): Interrog, No. 9(A) Resp.: | that it “purchased the subject If SOLID STATE denies the goods” from Hollister- Whitney is truth of any of the above (A) Solid State purchased | evasive and unresponsive to RFA Request Nos. ..., set forth the subject goods from No. 9 because it fails to provide any with respect to each such Hollister- Whitney factual basis for denying that it denial: Elevator Corp. authorized Hollister-Whitney to (A) The facts supporting arrange the transportation. plaintiff's denial...

REA No. 10: SOLID STATE | RFA No. 10 Resp.: ABF’s RFA No. 10 and knew prior to the Interrogatory (A) seek the facts transportation that Hollister- | Deny. supporting plaintiff’s denial that it Whitney Elevator Corp. “knew prior to the transportation would arrange the interstate that Hollister-Whitney ... would motor carriage of the subject arrange the interstate motor shipment from Quincy, carriage of the subject shipment.”

Illinois to New York City. Plaintiff's continued non sequitur statement that it “purchased the Interrog. No. 10(A): Interrog. No. 10(A) subject goods” from Hollister- If SOLID STATE denies the | Resp.: Whitney is evasive and truth of any of the above unresponsive to RFA No. 10 Request Nos. ..., set forth (A) Hollister-Whitney because it fails to provide any with respect to each such Elevator Corp. sold the factual basis for denying that it dental: subject shipment to Solid | knew, prior to the shipment, that (A) The facts supporting State. Hollister- Whitney would be plaintiff's denial... arranging the transportation.

A-i APPENDIX TO ABP’S RULE 36 LETTER MOTION ABF’S REQUESTS FOR PLAINTIFF’S RFA/ ADMISSION AND INTERROGATORY ABF’S OBJECTIONS TO INTERROGATORY RESPONSES (3/15/21) | PLAINTIFF’S RESPONSES RFA No. 31: When the RFA No, 31 Resp.: ABF’s RFA No. 31 and Interroga- subject shipment was tory (A) seek the facts supporting delivered by ABF Deny. plaintiff's denial that one of its FREIGHT’s driver to SOLID representatives “asked the driver to STATE in New York City, a unload the elevator machine” upon SOLID STATE representative delivery. Plaintiff's continued non asked the driver to unload the sequitur statement that the driver elevator machine that is the “unloaded the elevator machine” is subject of this action. evasive and unresponsive to RFA No. 31 because it fails to provide Interrog. No. 31(A): Interrog. No. 31(A) any factual basis for denying that it If SOLID STATE denies the | Resp.: requested ABF’s driver to unload truth of any of the above the machine. Plaintiff references a Request Nos. ..., set forth (A) ABF's driver notation in the Straight Bill of with respect to each such unloaded the elevator Lading issued by Hollister- denial: machine that is the subject | Whitney’s freight broker, Global (A) The facts supporting of this action. Tranz, requesting use of the truck’s plaintiffs denial... liftgate for delivery, but the Bill of Lading notation is unresponsive to ABF’s requests that plaintiff admit or deny its own delivery instruction to the driver and, if denied, set forth any facts substantiating an alleged lack of instruction.

RFA No. 35: Before the RFA No, 35 Resp.: subject shipment was transported from Quincy, Deny. ABF’s RFA No. 35 and Illinois to New York City, Interrogatory (A) seek the facts SOLID STATE did not advise supporting plaintiff's denial that it Hollister- Whitney Elevator “did not advise Hollister- Whitney Corp. that plaintiff could ... that plaintiff could incur a delay incur a delay penalty to the penalty...” Plaintiffs vague, construction project owner. evasive reference to “standard industry practice” is unresponsive Interrog. No. 35(A): Interrog. No. 35(A) to RFA No. 35 which seeks any If SOLID STATE denies the | Resp.: specific, affirmative truth of any of the above communication from plaintiff to Request Nos. ..., set forth (A) Delay penalties are | Hollister-Whitney concerning a with respect to each such standard industry practice. | delay penalty in connection with denial: the subject shipment. (A) The facts supporting plaintiff's denial...

A-2 APPENDIX TO ABE’S RULE 36 LETTER MOTION ABF’S REQUESTS FOR PLAINTIFF’S RFA/ ADMISSION AND INTERROGATORY ABF’S OBJECTIONS TO INTERROGATORY RESPONSES (3/15/21) | PLAINTIFE’S RESPONSES RFA No. 36: Before the RFA No. 36 Resp.: subject shipment was transported from Quincy, Deny. ABF’s RFA No. 36 and Illinois to New York City, Interrogatory (A) seek the facts SOLID STATE did not advise supporting plaintiff's denial that it GlobalTranz that plaintiff “did not advise GlobalTranz ... that could incur a delay penalty to plaintiff could incur a delay the construction project penalty....” Plaintiff's vague, owner. evasive reference to “standard industry practice” is unresponsive Interrog. No. 36(A): Interrog. Resp. No. to RFA No. 36 which seeks any If SOLID STATE dems the | 36(A): specific, affirmative truth of any of the above communication from plaintiff to Request Nos. ..., set forth (A) Delay penalties are | Global'Tranz concerning a delay with respect to each such standard industry practice. | penalty in connection with the denial: subject shipment. (A) The facts supporting plaintiff's denial...

RFA 37 No.: Before the REA No, 37 Resp.: subject shipment was transported from Quincy, Deny. ABF’s RFA No. 37 and Illinois to New York City, Interrogatory (A) seek the facts SOLID STATE did not advise supporting plaintiff's denial that it ABF FREIGHT that plaintiff “did not advise ABF ... that could incur a delay penalty to plaintiff could incur a delay the construction project penalty....” Plaintiff's vague, owner, evasive reference to “standard industry practice” is unresponsive Interrog. No. 37(A): Interrog, Resp. No. to RFA No. 37 which seeks any If SOLID STATE denies the | 37(a): specific, affirmative truth of any of the above communication from plaintiff to Request Nos. ..., set forth (A) Delay penalties are ABF concerning a delay penalty in with respect to each such standard industry practice. | connection with the subject denial: shipment. (A) The facts supporting plaintiff's denial...

A-3