United States District Court, M.D. Florida, Tampa Division
JEANETTE A. SPOOR, Plaintiff,
NAZIR HAMOUI, GULF COAST COLLECTION BUREAU, INC. and U.S. ONCOLOGY CORPORATE, INC., Defendants.
S. MOODY, JR. JUDGE
CAUSE comes before the Court upon Plaintiff's Motion for
Partial Summary Judgment (Dkt. 46), Defendant Nazir
Hamoui's Response to Plaintiff's Motion for Partial
Summary Judgment (Dkt. 54), and Defendant Nazir Hamoui's
Renewed Motion to Withdraw Facts Deemed Admitted Pursuant to
Rule 36(b) (Dkt. 57). Upon review of the filings, the Court
grants Defendant's Motion to Withdraw and denies
Plaintiff's Motion for Partial Summary Judgment.
16, 2015, Plaintiff Jeanette Spoor filed a complaint in state
court, alleging that several defendants violated provisions
of the Fair Debt Collection Practices Act
(“FDCPA”) and Florida Consumer Collection
Practices Act (“FCCPA”). The case was removed to
federal court on September 30, 2015 (Dkt. 1).
served discovery requests on the defendants on March 24,
2016. In the case of Defendant Nazir Hamoui (hereafter
“Defendant”), the discovery request was twenty
pages long and included interrogatories, requests for
production, and requests for admission. Defendant responded
to the interrogatories and requests for production on June
23, 2016. Defendant failed to respond to the requests for
admission, which consisted of five questions on the
nineteenth page of the discovery request.
November 8, 2016, Plaintiff filed a motion for partial
summary judgment (Dkt. 46) against Defendant on one of her
claims (i.e., a claim that Defendant violated Florida Statute
section 559.72, subsections (9) and (18)). Plaintiff argues
that because Defendant failed to answer the requests for
admission, all elements of this claim are deemed admitted,
and therefore Plaintiff is entitled to judgment as a matter
December 13, 2016, Defendant filed his response to
Plaintiff's motion (Dkt. 54), as well as an affidavit by
Defendant (Dkt. 54-1), a motion for leave to withdraw the
deemed admissions (Dkt. 53), and proffered responses to the
five requests for admission (Dkt. 53-1). The Court denied
Defendant's motion for leave to withdraw without
prejudice because Defendant failed to comply with Local Rule
3.01(g) (Dkt. 55). Defendant then filed a second motion for
leave to withdraw (Dkt. 57) on December 16, 2016. Plaintiff
did not file a response to either of Defendant's motions.
Withdrawal or Amendment of Admissions
Federal Rules of Civil Procedure allow a party to serve
another party with a written request to admit the truth of
relevant matters. Fed.R.Civ.P. § 36(a)(1). If the other
party does not respond within thirty days of service of the
request, or within the time period stipulated to by the
parties or ordered by the court, the matters are deemed
admitted. Fed.R.Civ.P. § 36(a)(3). The matter is
conclusively established unless the court, upon motion by a
party, allows the party to withdraw or amend the admissions.
Fed.R.Civ.P. § 36(b).
court may allow the party to withdraw or amend the admissions
“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.” Id. Thus, the court
should apply a two-part test to decide whether to grant or
deny a motion to withdraw or amend admissions. Perez v.
Miami-Dade County, 297 F.3d 1255, 1264 (11th Cir. 2002)
(citing Smith v. First Nat'l Bank, 837 F.2d
1575, 1577 (11th Cir. 1988)). The court must first consider
whether the withdrawal or amendment will subserve the
presentation of the merits. Id. It must then
determine whether the withdrawal or amendment will prejudice
the party who obtained the admission in presenting its case.
Court concludes that both prongs of this test are met.
Withdrawal of the deemed admissions will subserve, or
promote, the parties' presentation of the merits of the
case. Here, the deemed admissions establish elements of
Plaintiff's claim that Defendant violated Florida Statute
section 559.72, subsections (9) and (18), by attempting to
enforce a debt that he knew was not legitimate and
communicating with a debtor that he knew was represented by
an attorney. The deemed admissions establish (1) that
Defendant received notice of Plaintiff's bankruptcy in
January 2015 and subsequently (2) sent letters to Plaintiff
requesting payment of a debt incurred in 2014 and (3)
referred the debt to a collection agency. As indicated by
Defendant's affidavit and proffered responses to the
requests for admission, he disputes that he received notice
of Plaintiff's bankruptcy in January 2015, that he sent
the letters to Plaintiff, and that he referred the debt to a
collection agency after he had knowledge of Plaintiff's
bankruptcy. Whereas deeming these ...