Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01295-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 04-cv-01295-LTB-CBS BETTY GALLEGOS, BERTHA PACHECO, LAURA REYES, MANUELA ARRAS, DAVID ZUBIA, ANTONIO MEZA, JESUS ARENIVAR, ALBA BARRIOS, GLORIA CAMPOS, SAN JUANITA CELEDON, REYNEL CARMONA, SYLVIA CRUZ, JESUS ESTRADA, MARIA ISABEL FLORES, JORGE MARTINEZ, MARIA MCREYNOLDS, IGNACIO RANGEL, JUANA ROSALES, MARIA TOVAR, ANTELMO ZUNUN, MARIA ALVA, PETRONA COREAS, MARIA ESTEVEZ, ALFREDO PINEDA, CARMEN LUNA, PATTY LEHMKUHL & LUIS OCHOA, Plaintiffs, v. SWIFT & COMPANY, Defendant.

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL ANSWERS TO REQUESTS FOR ADMISSION ______________________________________________________________________________ COMES NOW Defendant Swift & Co. ("Defendant" or "Swift"), by and through its attorneys, and submits the following Response to Plaintiffs' Motion to Compel Answers to Requests for Admission: 1. admissions. 2. Given the volume of information requested, Defendant filed an unopposed motion On October 20, 2005, Plaintiffs served Defendant twenty-six sets of requests for

to extend the deadline to answer the requests for admissions by 30 days.

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3.

On December 20, 2005, Defendant timely served its objections to each Plaintiff's

Request for Admissions. 4. Federal Rule 36 requires "each matter of which an admission is requested" to be

"separately set forth." According to Moore's Federal Practice: Requests for admission should be simple and direct. Parties are not required to admit or deny requests that consist of statements that are vague or ambiguous. Likewise, each matter of which an admission is requested must be separately set forth. The requesting party bears the burden of drafting the request clearly and specifically so that the responding party can easily agree or disagree. When a request for admission is properly drafted, the answering party should have little or no difficulty responding. In response to an unambiguous, succinct, but specific request for admission the responding party should simply be able to agree or disagree with the request, that it, to admit or deny the request, to explain succinctly why it is not possible to answer, or to offer any other necessary qualification. 3D Moore's Federal Practice § 36.10[6] (2005). 5. Plaintiffs' Request for Admissions did not comply with Rule 36. Each request

was overly broad, compound, vague, ambiguous and/or not likely to lead to the discovery of admissible evidence. PLAINTIFFS' FIRST REQUEST FOR ADMISSION 6. Plaintiffs' first request read as follows: "Please admit that [Plaintiff] is able to

perform any of the position [sic] she held at the Beef Plant prior to her layoff." Defendant objected to this request as overly broad, compound, vague, ambiguous, and not likely to lead to the discovery of admissible evidence. The request is vague, ambiguous, and not likely to lead to the discovery of admissible evidence with respect to the time period covered by the request. Whether or not Plaintiffs are currently able to perform the "essential functions" of a given

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position is completely irrelevant to this lawsuit. The information requested is also vague and ambiguous. For example, are Plaintiffs requesting information regarding the final position an individual held prior to layoff, or all positions held during the individual's employment with Defendant? If the latter, the question is compound and therefore inappropriate under Rule 36, which requires "each matter of which an admission is requested" to be "separately set forth." Because Defendant does not understand exactly what information Plaintiffs are seeking, it can neither admit nor deny this vague and ambiguous request. 7. Plaintiffs' counsel argues that he offered to limit this inquiry to the three positions

occupied prior to Plaintiffs' layoff. However, Defendant never received a revised set of requests for admissions. Moreover, even with the amendment, the request is not proper under Rule 36, as that rule requires that each matter be set forth separately. Requesting that Defendant admit that a given Plaintiff was able to perform the essential functions of the last three positions he or she held is a compound question and therefore improper under Rule 36. Contrary to Plaintiffs' argument, requests for admissions are not analogous to interrogatories and cannot contain "subparts." Rather, they must clearly set forth a single statement for Defendant to either admit or deny. Again, it is Plaintiffs' burden to draft clear and specific requests. Defendant is not required to guess as to what Plaintiffs may mean by a given request. Defendant therefore properly objected to Plaintiffs' first request for admission.

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PLAINTIFFS' SECOND REQUEST FOR ADMISSION 8. The following is an example of Plaintiffs' second request for admission: Please

admit that the following employees were assigned to the Clean Up Position (Job No. 26820) in excess of six months after September 1, 2002: a. b. c. d. e. f. g. h. i. j. k. l. Francisco Aldana (DOH February 27, 1996) (March 2, 2004 to at least September 1, 2004. Sherley Alejandro (DOH April 14, 2000) (October 4, 2003 to at least June 6, 2004) Maria Avalos (DOH August 13, 2001) (December 28, 2002 to at least September 1, 2004) Obdulia Banuelos (DOH December 1, 2003) (January 27, 2004 to at least September 1, 2004) Efrain Carmona (DOH January 31, 2000) (December 28, 2002 to at least September 1, 2004) Eustolio Carmona (DOH February 13, 1984) (December 28, 2002 to at least September 1, 2004) Francisco Casas (DOH May 4, 1998) (July 5, 2003 to at least September 1, 2004) Eleno Cisneros (DOH October 30, 2000 from September 1, 2002 to at least December 28, 2002) Saul Cisneros (DOH April 15, 2002 (July 5, 2003 to at least November 15, 2003) Eduardo Colon Sota (DOH August 19, 2002) (July 5, 2003 to at least November 9, 2003) Guadalupe Cortez (DOH November 25, 1977) (July 5, 2003 to at least October 25, 2003) Maria Cruz (DOH August 3, 1998) (December 28, 2002 to at least April 14, 2004)

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m. 9.

Maria de la Rosa (DOH July 28, 2003) (January 27, 2004 to at least September 1, 2004)

Defendant objected to Request No. 2 as compound, vague, ambiguous, and not

likely to lead to the discovery of admissible evidence. The time period "in excess of six months after September 1, 2002" is vague and ambiguous. Additionally, this request for admission is compound and cannot be answered with a simple admission or denial as contemplated by the federal rules. Rule 36 requires "each matter of which an admission is requested" to be "separately set forth." Here, Plaintiffs requested information regarding anywhere from two to nineteen different individuals in the same request. Plaintiffs' second request is also compound with respect to each individual. Plaintiffs first ask Defendant to admit that the individual was employed in a certain position "in excess of 6 months," and then goes on to ask Defendant, in the same request, to admit or deny the specific dates of employment in a specific position, as well as the employee's date of hire. Such compound questions are inappropriate for requests for admissions and Defendant properly objected. 10. Plaintiffs argue that this second request is not compound because it is limited to

"one position." However, Plaintiffs asked Defendant to admit or deny whether or not several separate individuals held this position, and it is therefore compound question. Plaintiffs' counsel claims that he "clarified" that this additional information was for identification purposes only, but he has never submitted a revised set of requests for admissions that comply with Rule 36. Again, Defendant is not required to guess at the information Plaintiffs seek to be admitted or denied. Defendant is entitled to a clear request for admission regarding a single subject. Defendant therefore properly objected to Plaintiffs' second request for admission.

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PLAINTIFFS' THIRD REQUEST FOR ADMISSION 11. The following is an example of Plaintiffs' third request for admission: Please

admit that after Jesus Arenivar's layoff, Swift placed the following employees in the Clean Up Position (Job No. 26820): EMPLOYEE Francisco Aldana Alejandro Sherley Obdulia Banuelos Maria Bocanegra Maria De La Rosa Date of HIRE 2/27/96 4/17/00 12/1/03 12/1/03 7/28/03 Date of Placement 3/2/04 10/4/03 1/27/04 1/27/04 1/27/04

12.

Defendant objected to Request No. 3 as compound, vague, ambiguous, and not

likely to lead to the discovery of admissible evidence. The time period of "after Jesus Arenivar's layoff" is vague and ambiguous. Moreover, this request for admission is compound and cannot be answered with a simple admission or denial as contemplated by the federal rules. Rule 36 requires "each matter of which an admission is requested" to be "separately set forth." Here, Plaintiffs requested information regarding five different individuals in the same request. Plaintiffs' request is also compound with respect to each individual. Plaintiffs first ask Defendant to admit that the individual was employed in a certain position, and then goes on to ask Defendant, in the same request, to admit or deny the specific date of placement in that position, as well as the employee's date of hire. Such compound questions are inappropriate under Rule 36.

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13.

Plaintiffs argue that the time period of "after Jesus Arenivar's layoff" is not vague

and ambiguous. However, Defendant has no idea how long of a time period this request covers. Is it a day after his layoff, a week, a month, a year, or more? Moreover, many of the requests have the wrong Plaintiff inserted. For example, several of the Plaintiffs' third request for admission identify the relevant time period as "after Maria Alva's layoff." In their motion to compel, Plaintiffs do not address the fact that this request is also compound as noted above. Defendant properly objected to Plaintiffs' third request for admission. 14. In sum, Plaintiffs' Requests for Admission are improper under Rule 36, and

Plaintiffs' Motion to Compel should be denied in its entirety. Respectfully submitted this 31st day of January, 2006.

s/ Leslie A. Johnson W. V. Bernie Siebert Leslie Abernathy Johnson SHERMAN & HOWARD L.L.C. 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Tel: (303) 297-2900 Fax: (303) 298-0940 [email protected] [email protected] Stuart B. Johnston, Jr. VINSON & ELKINS, L.L.P. 3700 Trammell Crow Center 2001 Ross Avenue Dallas, TX 75201-2975 Tel: (214) 220-7842 Fax: (214) 999-7842 [email protected] Attorneys for Defendant Swift & Company

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CERTIFICATE OF SERVICE I hereby certify that on the 31st day of January, 2006, a true and correct copy of the foregoing DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL ANSWERS TO REQUESTS FOR ADMISSION was electronically filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address: Britton Morrell at [email protected]

s/ Clarine R. Kuntz

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