Medical Malpractice Motion 4 - Plaintiff's motion to deem unanswered requests to admit admitted

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Plaintiff's Motion to Deem 216 Requests to Admit, Admitted, Due to Non-Response of Defendant

Erron H. Fisher, Fisher & Lamonica, P.C., 150 S. Wacker Drive, Suite 650, Chicago, IL 60606, 312/345-0500

NOW COMES the Plaintiff, LASHAWN CLARK, by his attorneys, FISHER & LAMONICA, P.C., and for his Motion to Deem 216 Requests to Admit , Admitted, Due to the Non-Response of the Defendant, the Plaintiff states as follows:

1. This litigation arises out of a traffic crash where the defendant made a left hand turn in front of the plaintiff's vehicle.

2. On April 17, 2014, the Plaintiff propounded 216 Requests to Admit on the Defendant. (Exhibit A, Medical Bills and records omitted from version filed with the Court for this motion.) These requests were placed in an envelope, proper postage paid, and mailed to the Defendant.

3. On May 16, 2014, having not received responses, Plaintiff's counsel called defense and sent 201(k) letter to work out an agreed extension. (Exhibit B). Defense counsel did not respond.

4. On July 30, 2014, Plaintiff's counsel again contacted Defense counsel regarding these requests. As of the time of filing this motion a response was not received. By virtue of being required to file this motion, the Plaintiff withdraws the willingness to extend the time to respond.

5. Although requests to admit must be strictly complied with, trial court has discretion to allow responses to be served beyond the 28-day deadline, but before that discretion may come into play, the responding party must show good cause for the extension; that is, the responding party cannot rely upon the mere absence of inconvenience or prejudice to the opposing party, nor mistake, inadvertence, or attorney neglect as the sole basis for a good-cause determination, but, instead, must assert some independent basis for allowing the untimely response. Hammond v. SBC Communications, Inc ., 302 Ill.Dec. 828, 365 Ill.App.3d 879, 850 N.E2d 265 (1st Dist. 2006) appeal denied 306 Ill.Dec. 272, 221 Ill.2d 635, 857 N.E.2d 671. “Good cause” for court to extend time for filing response to request for admission is not simply mistake, inadvertence, or neglect or an absence of prejudice to the opposing party. Robbins v. Allstate Ins. Co. , 298 Ill Dec. 879, 362 Ill.App.3d 540, 841 N.E.2d 22, (2nd Dist. 2005) rehearing denied, appeal denied 303 Ill.Dec. 842, 219 Ill.2d597, 852 N.E.2d 249. Attorney and law firm failed to establish good cause for their failure to respond or request an extension of time [emphasis added] to serve their responses to client's requests for admission, during legal malpractice case; personnel changes at law firm did not establish good cause, attorney and law firm provided no valid explanation for their failure to file a motion for an extension of tim within the 28-day time limit for requesting an extension. [emphasis added] and the fact that client would not be prejudiced by attorney and law firm's late filing of responses did not continue an independent basis for granting an extension of time. Larson v. O'Donnell , 297 Ill.Dec. 132, 361 Ill.App.3d 388, 836 N.E.2d863 (1st Dist. 2005), appeal denied 300 Ill.Dec. 523, 217 Ill.2d 603, 844 N.E.2d 966. Mistake, inadvertence, or simple attorney neglect cannot constitute the sole basis for a good-cause determination, for purposes of seeking court's permission to file late response to request for admissions. Glasco v. Marony , App. 5 Dist.2004, 283 Ill.Dec. 819, 349 Ill.App.3d 1069, 808 N.E.2d 1107(5th Dist. 2004).

6. The requirements of Supreme Court Rule governing requests for admission, particularly providing a timely sworn response, must be strictly complied with, and the failure to comply will result in a judicial admission that is considered incontrovertible, withdrawing that fact from contention. In re County Treasure , 364 Ill.Dec. 700, 977 N.E.2d 189 (1st Dist. 2012). Mere filing by defendant's attorney of a response under his own signature and without the defendant's verification to plaintiff's request for admissions failed to comply with the signature and verification requirements of rule governing such requests within the time period allowed, requiring that the facts contained in the plaintiff's request to admit facts be deemed admitted, in suit alleging that defendant violated city's residential landlords and tenants ordinance. Coleman v. Akpakpan , 342 Ill.Dec. 293, 402 Ill.App.3d 822, 932 N.E.2d 184. (1st Dist. 2010). Discovery rule governing requests for admissions requires that the party responding to the request must sign the answer and provide the sworn-to statement, and the signed and sworn-to copy of the answer served on the requesting party must be signed and sworn to by the party, the signature of and verification by the party's attorney on the answer to an admissions request instead of the party's signature does not comply with the rule. Moy v. Ng , App. 1 Dist.2003, 276 Ill.Dec. 160, 341 Ill.App.3d 984, 793 N.E.2d 919, (rev. on other grounds) appeal denied 282 Ill.Dec. 479, 206 Ill.2d 624, 806 N.E.2d 1067, on remand 2004 WL 5584441.

WHEREFORE, the Plaintiff, LaSHAWN CLARK, prays this honorable Court enter an order deeming all Requests to Admit admitted by virtue of Defense failure to comply with Rule 216 and for any other relief this Court deems just.

Respectfully submitted,

FISHER & LAMONICA, P.C.

<<signature>>

One of the Plaintiff's Attorneys

Erron H. Fisher

FISHER & LAMONICA, P.C.

150 S. Wacker Drive, Suite 650

Chicago, IL 60606

312/345-0500

#48935

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