Watch Out: Responding to RFA Matters More Than What You May Think, Even After Close of Discovery
I previously reported on a “serial plaintiff” Mr. Shelton’s victory in a TCPA action, not because of any factual findings on his TCPA claims, but because of the defendant’s procedural failure in responding to discovery, which resulted in the court’s decision to consider the factual matters undisputed for purpose of Shelton’s summary judgment motion. See YIKES: MSJ Granted On “Serial Plaintiff” TCPA Claims – Maybe Defendant Should’ve Taken Case More Seriously. It just caught my attention today, that Mr. Shelton, (and I’d say, using the similar strategy in another TCPA action in the same district), also successfully obtained a verdict against another telemarketer, who failed to respond to a set of requests for admission although discover was closed before the response deadline. See Shelton v. Fast Advance Funding, LLC, 378 F. Supp. 3d 356 (E.D. Pa. 2019).
The defendant Fast Advance subsequently filed an appeal with the Court of Appeals for the Third Circuit. The issues before the court were: first, whether the district court abused its discretion in deciding that requests for admission served fewer than thirty days before the close of discovery were deemed admitted when the party to who the requests were directed failed to respond; and second, whether the district court erred in deciding that a plaintiff has standing under the TCPA, as he has received unsolicited telemarketing calls on his cellphone used for personal purpose. See Shelton v. Fast Advance Funding, No. 19-2265, 2020 U.S. App. LEXIS 6676 (3d Cir. Mar. 3, 2020).
Fast Advance contends that it was not obliged to respond to Shelton’s requests for admission because the deadline to respond was after the close of discovery. The court, however, disagrees: “Nothing in [Rule 36] provides that a party may ignore requests if the responses are due after the close of discovery.” The rule states that, “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. 36(a)(3).
Yup, that’s what the rule says. Simple and straightforward.
Further, the court also points out that, requests for admission are distinct from other discovery devices, and that a party is obliged to respond even the deadline is after the close of discovery, citing to Langer v. Monarch Life Inc. Co., 966 F. 2d 786, 803 (3d Cir. 1992).
As to the second issue, Fast Advance argues that Shelton did not have standing under the TCPA because in another TCPA action, Shelton admitted that he used his cellphone for both business and personal purposes. But the court eventually implied, the other TCPA action had nothing to do here. Here, in contrast, there was no evidence in the record before the district court that Shelton used his cellphone for business purpose. The district court therefore correctly decided that Shelton had standing to bring suit under the TCPA.
And why? Well, because Fast Advance failed to respond to Shelton’s request for admission that Shelton’s cellphone was a “personal cellular telephone” and a “private mobile telephone … used for personal purposes.” Shelton, 378 F. Supp. 3d 356, 359. So the matter was deemed admitted!
Ugh… Just like the FCS Capital court said, “[defendant]’s abdication of its obligations  has consequences.” The requested party is obliged to answer or object to the RFA even the deadline is after the close of discovery. Please, please, please take these obligations and mark it on the calendar, seriously.