Judge Kimbler Decision on Withdrawing Admissions

Below is the text of an journal entry that Judge Kimbler released on February 5, 2006 dealing with withdrawal of admissions made pursuant to Civ. R. 36. It contains a discussion of a recent case from the Ninth District Court of Appeals dealing with the withdrawal of matters deemed admitted under Civ. R. 36.


Plaintiff has moved for summary judgment on his Complaint, pursuant to Ohio Civil Rule 56(B). Plaintiff claims he is entitled to judgment in his favor on the issue of liability, and asks that the Court set the case for hearing solely on the issue of damages. In making this assertion, Plaintiff is relying on Defendant’s failure to respond to a Request for Admissions in a timely manner.

After considering the litigants’ briefs relative to Plaintiff’s Motion for Summary Judgment and the evidence presented in opposition to said Motion, the Court finds that there are genuine issues as to material facts in this case.

As the Ninth District Court of Appeals pointed out in Dennison v. Koba (1993), 86 Ohio App.3d 605, 609, “A summary judgment precludes a jury’s consideration of a case and should, therefore, be used sparingly, only when reasonable minds can come to but one conclusion.” Accordingly, Plaintiff’s Motion for summary judgment is denied.

The Court further finds that Defendant’s Motion to Withdraw Admission is well taken. Civil Rule 36, which governs requests for admissions, provides “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. *** The court may permit withdrawal or amendment 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.”

In Albrecht v. Hambones Corporation, 2002 Ohio 5939, Summit App. No. 20993, the Ninth District Court of Appeals held it is an abuse of discretion to deny a party’s request to withdraw admissions without a showing that allowing withdrawal or amendment of the admissions would prejudice the party seeking admission. In the case now before the Court, Plaintiff has not offered any evidence that it would be prejudiced by allowing Defendants to withdraw the admissions. Accordingly, Defendants’ Motion to Withdraw Admissions is granted.