Ex-Ch J L Paige (“Iron Fist”) Marvel rules it’s too soon to decide whether Cindat Manhattan Hotel Portfolio LLC, Docket No. 12905-20, filed 3/8/23, can withdraw its Rule 90(f) deemed admissions, or whether Cindat can withdraw its Rule 37(c) deemed admissions at all.

As to the Rule 90(f) admissions, the bulk of those from which Cindat is seeking to bail, Cindat is light with facts to show that “the presentation of the merits of the case will be subserved thereby, and the party who obtained the admission fails to satisfy the Court that the withdrawal or modification will prejudice such party in prosecuting such party’s case or defense on the merits.” Order, at p. 2. That Cindat has a newly-retained attorney, and that discovery might help, doesn’t answer. Neither does substituting bookkeeping entries for corroborative proof.

As to the Rule 37(c) deemed admissions, while caselaw says the same considerations apply as with Rule 90(f) withdrawals, there is no explicit out in Rule 37(c) as there is in Rule 90(f). Ex-Ch J Iron Fist needn’t go there either now.

“Nonetheless, we think it is appropriate to deny petitioner’s Motion with respect to its deemed Rule 37(c) deemed admissions without prejudice for the same reasons that we deny petitioner’s Motion with respect to its Rule 90(c) deemed admissions without prejudice. We caution petitioner that if it again makes a motion to withdraw its Rule 37(c) deemed admissions, its timeliness in making such a motion before its trial date would likely be a factor in deciding whether respondent is prejudiced by the withdrawal of those deemed admissions.” Order, at p. 6.

Note the decretal paragraph of the Order speaks only to the Rule 90(f) motion, not the Rule 37 request. Might want to clarify the point that both motions are involved.

Taishoff says ex-Ch J Iron Fist is right, given the state of the current record. If Cindat has sufficient evidence to warrant reconsideration, let them try again, taking care not to get into the pretrial Red Zone, potentially ambushing IRS with eve-of-trial wildcards.

Taishoff also says we’re two weeks short of a year since ex-Ch J Maurice B (Mighty Mo”) Foley proposed his Rule changes. Let’s get those approved, and turn attention to amending Rule 37 to bring it into line with Rule 90, as regards withdrawing deemed admissions. Why rely on 30-year-old caselaw, as ex-Ch J Iron Fist must do here, when a simple Rule change would solve the problem?