CIVIL PROCEDURE ) ADMISSIONS 160 ) Admissions A request for admission as to the genuineness of a letter, excludable as evidence under Kosrae Evidence Rule 408 because it relates to settlement negotiations, is reasonably calculated to lead to evidence which could be admissible, and an objecting party may not obtain a protective order pursuant to Kosrae Civil Rule 26 to avoid responding to the request. Nena v. Kosrae, 3 FSM Intrm. 502, 507 (Kos. S. Ct. Tr. 1988). Although the court may allow for an enlargement or a restriction of the time in which to respond to a request for admissions, a complete failure to respond within that allotted time automatically constitutes an admission, without any need for the requesting party to move for a declaration by the court that the matters are deemed admitted. Leeruw v. Yap, 4 FSM Intrm. 145, 148 (Yap 1989). Once matters have been admitted through a failure to respond to a request for admissions, a motion by the responding party to file a late response to the request for adm issions will be treated as a motion to withdraw and amend the admissions. Leeruw v. Yap, 4 FSM Intrm. 145, 148 (Yap 1989). One purpose of requests for admissions is to relieve the parties of having to prove facts which are not really in dispute. Leeruw v. Yap, 4 FSM Intrm. 145, 149 (Yap 1989). If a requesting party relies on admissions to its prejudice, it would be manifestly unjust to allow the responding party to amend its responses at a later time, but the sort of prejudice contemplated by the rule regards the difficulty the requesting party may have in proving the facts previously admitted, because of lack of time or unavailability of witnesses or evidence, not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth. Leeruw v. Yap, 4 FSM Intrm. 145, 149 (Yap 1989). FSM Civil Rule 36, regarding requests for admissions, is intended to expedite discovery and trial, to simplify issues and make litigation more efficient. Leeruw v. Yap, 4 FSM Intrm. 145, 149 (Yap 1989). When a party who has admitted matters through a failure to respond to a request for admissions later moves to withdraw and amend its response, and the requesting party has not relied on the admissions to its detriment, the imposition of penalties other than conclusive admission is a sensible approach, as it both avoids binding a party to an untrue and unintended admission and yet helps insure respect for the importance of the rules of procedure and the need for the efficient administration of justice. Leeruw v. Yap, 4 FSM Intrm. 145, 149-50 (Yap 1989). FSM Civil Rule 36(b) permits a withdrawal of admissions, including admissions by omission, when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Pohnpei v. Kailis, 7 FSM Intrm. 27, 28 (Pon. 1995). When delay in filing answers to requests for admissions was not caused by bad faith and no prejudice in maintaining the action is caused the requesting party, the late filing may be allowed, under conditions, as a withdrawal or amendment of answers obtained by omission. Pohnpei v. Kailis, 7 FSM Intrm. 27, 29 (Pon. 1995). Admissions obtained through a failure to respond to requests for admissions may be used as the factual basis for summary judgment. Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 85 (Chk. 1995). A court, on motion, may permit withdrawal or amendment of an admission when the presentation of the merits will be subserved thereby and the party who obtained the adm ission cannot satisfy the court that it will be prejudiced by the withdrawal or amendment. In such a circumstance the court may impose other sanctions. Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 85-86 (Chk. 1995). Although a motion to file a late response to the requests for admissions is considered a motion to amend or withdraw, an untimely response to a summary judgment motion cannot be deemed a motion to withdraw CIVIL PROCEDURE ) ADMISSIONS 161 or am end. Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 86 (Chk. 1995). In principle there is no difference in treating a motion to allow late filing of admissions as a Rule 36(b) motion to withdraw or amend admissions and of treating the late filing itself as a Rule 36(b) motion. Eko v. Bank of Guam, 7 FSM Intrm. 164, 165-66 (Chk. 1995). Where the only prejudice to the defendant was the attorney’s necessary expenses and in order to permit a presentation of the case on the merits, a court may allow the plaintiff’s late filing of answers to requests for admissions conditioned upon his deposit with the court of a sum equal to the expenses incurred. Eko v. Bank of Guam, 7 FSM Intrm. 164, 166 (Chk. 1995). A court may consider as evidence against pleader, in the action in which they are filed, a party’s earlier admissions in its responsive pleadings even though it was later withdrawn or superseded by amended pleadings. A court may take judicial notice of them as part of the record. FSM Dev. Bank v. Bruton, 7 FSM Intrm. 246, 249 (Chk. 1995). A defendant who fails to file a timely response to plaintiff’s requests for admission, is deemed to have admitted the matter sought to be admitted. FSM Social Sec. Admin. v. Weilbacher, 7 FSM Intrm. 442, 445 (Pon. 1996). Under Rule 36(a), if a party to whom requests for admission are directed fails to answer the requests within 30 days after service, the matter that is the subject of the requests is deemed admitted. It is irrelevant that if the request sought admission of so-called ultimate facts. Rule 36(a) neither expressly nor implicitly excepts such facts from its requirements. Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 25 (Yap 1999). A party’s requests to admit are deemed admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the requesting party a written answer or objection addressed to the matter. Harden v. Primo, 9 FSM Intrm. 571, 573 (Pon. 2000). When the sanction of deeming all the facts admitted as plaintiff urges in his motion for summary judgment is a severely harsh sanction for defendant’s failure to respond to plaintiff’s requests to admit, the court may order defendant to submit responses to plaintiff’s requests to admit within 30 days, and if defendant fails to respond to plaintiff’s requests to admit, or provides an inadequate response, the court may, upon plaintiff’s proper motion, deem admitted all of the requested facts and also require defendant to pay plaintiff’s attorney’s fees in bringing an additional motion. Harden v. Primo, 9 FSM Intrm. 571, 574 (Pon. 2000). A court may order on its own motion that overdue responses not be deemed admissions of fact because the fashioning of remedies and sanctions for a party’s failure to comply with discovery requirements is a matter within the court’s discretion. Overdue responses to requests for admission are not customarily treated as having been admitted in the absence of a showing of actual prejudice to the propounding party combined with no showing of excusable neglect by the responding party. O’Sullivan v. Panuelo, 9 FSM Intrm. 589, 598 (Pon. 2000). When a defendant has not complied with all of the discovery requests as directed in a court order, the court will consider sanctions, including Civil Rule 37(b)(2) sanctions that designated facts will be taken to be established for the purposes of the action in accordance with the plaintiff’s claim, and that defendant ought to be aware that deeming certain facts established is tantamount to entering a default judgment. AHPW, Inc. v. FSM, 10 FSM Intrm. 507, 508 (Pon. 2002). When requests for admission are irrelevant, improper, scandalous and inflammatory, they will be stricken from the record. Talley v. Talley, 10 FSM Intrm. 570, 573 (Kos. S. Ct. Tr. 2002). In answering requests for admission, it is proper, indeed required, for the party answering to admit facts CIVIL PROCEDURE ) AFFIDAVITS 162 which are already known to the requester if the answering party knows those facts to be true. That is the very purpose of requests for admission, to refine and reduce the number of disputed issues for trial. AHPW, Inc. v. FSM, 10 FSM Intrm. 615, 617 (Pon. 2002). An answer to a request for admission that responds in a cavalier, flip manner: "If such a fact is known AHPW why should AHPW waste its tim e to propound this particular question?" is unacceptable, and inimical both to the letter and spirit of Rule 36. AHPW, Inc. v. FSM, 10 FSM Intrm. 615, 617 (Pon. 2002). Rule 36 requires specificity, a detailed explanation when a truthful answer cannot be framed, good faith, and fairness. AHPW, Inc. v. FSM, 10 FSM Intrm. 615, 617 (Pon. 2002). A response which fails to admit or deny a proper request for admission does not comply with Rule 36(a)’s requirem ents if the answering party has not, in fact, made reasonable inquiry, or if information readily obtainable is sufficient to enable him to admit or deny the matter.