Judge Lawrence Kahn
Chapter 7 trustee McCarthy’s 2011 adversary proceeding against Atlantic Sea Pride sought recovery of $144,014 in pre-petition payments. In response to McCarthy’s May 18, 2012, production and admission requests, Atlantic provided only invoices not corresponding to cancelled checks in McCarthy’s possession. Despite more than four months to respond to McCarthy’s requests, several extensions of time to do so, and being warned by McCarthy that he would seek summary judgment if Atlantic did not respond, Atlantic’s counsel indicated that the invoices were all that Atlantic would provide. Bankruptcy court’s Oct. 13, 2012, order held McCarthy entitled to summary judgment. Rejecting Atlantic’s reconsideration motions, bankruptcy court declined to treat Atlantic’s motions as an attempt under Federal Rule of Civil Procedure 36(b) to withdraw or amend admissions made by default. District court affirmed, concluding that no Rule 36(b) motion had been made nor would be implied. Discussing United States v. Kasuboski and O’Bryant v. Allstate Ins., district court held that even if Atlantic had satisfied a Rule 36(b) motion’s merits and prejudice prerequisites, it would decline to permit Atlantic to withdraw or amend its admissions.
