Nathanial Read-Ellis

The defendant successfully moved to withdraw deemed admissions arising from an inadvertent failure to respond to a request to admit.

The defendant sought costs of the motion.

The plaintiff argued no costs should be awarded because the defendant was seeking an indulgence.

The court awarded costs to the defendant, finding the plaintiff acted unreasonably by engaging in 'gotcha litigation' and refusing to consent to the withdrawal when there was no prejudice.

The plaintiff served a request to admit on the defendants.

Counsel for the moving defendant inadvertently failed to respond to five requests, resulting in deemed admissions of liability and damages.

The plaintiff subsequently brought a motion for judgment based on these deemed admissions.

The defendant brought a motion for leave to withdraw the deemed admissions under Rule 51.05.

The court granted the motion, finding that the failure to respond was inadvertent, there was no non-compensable prejudice to the plaintiff, and there were triable issues on the merits.