United States District Court, D. South Carolina
Timothy M. Cain United States District Judge
November 13, 2018, Plaintiff Akiel McKnight
(“McKnight”) filed this action in the Pickens
County Court of Common Pleas asserting claims against
Defendants the Pickens Police Department (“the Police
Department”), the City of Pickens (“the
City”), Travis Riggs, and Dennis Harmon alleging claims
for racial and sexual discrimination and retaliatory
discharge in violation of the South Carolina Human Affairs
Law, S.C. Code Ann. § 1-13-80, et. seq., and Title VII
of the Civil Rights Act of 1964, and violations of her
constitutional rights under 42 U.S.C. § 1983. (ECF No.
1-1). McKnight served interrogatories, requests for
production, and requests to admit along with Complaint on
November 26, 2018. (ECF No. 22-1). On December 4, 2018,
Defendants timely removed the action to this court. (ECF No.
1). On June 17, 2019, McKnight filed a motion for summary
judgment contending that no genuine issue of material fact
remained because the requests for admission were deemed
admitted when Defendants failed to respond. (ECF No. 18).
Defendants filed a response opposing the motion and a letter
setting out supplemental authority on June 17, 2019. (ECF
Nos. 19, 20). McKnight filed a reply on June 24, 2019. (ECF
No. 22). Before the court is the Magistrate Judge’s
Report and Recommendation (“Report”) recommending
that the court deny McKnight’s motion for summary
judgment. (ECF No. 23). Both McKnight and Defendants timely
filed objections. (ECF Nos. 24, 26).
noted above, when McKnight served the Complaint on November
26, 2018, on Defendants the City, the Police Department, and
Riggs, she also served requests to admit. (ECF No. 22-1).
Pursuant to Rule 36 of the South Carolina Rules of Civil
Procedure, responses to the requests to admit were due
forty-five days after service. SCRCP 36. Therefore, when
Defendants removed the action on December 6, 2018, the time
to respond to these discovery requests had not run.
first request to admit is “admit the Complaint is true
in its entirety.” (ECF No. 22-1 at 39). It is
undisputed that Defendants never responded to these requests
to admit. (ECF Nos. 18 at 1; 19 at 1). Therefore, in her
motion for summary judgment, McKnight contends the requests
are deemed admitted under SCRCP 36(a) and liability is thus
established entitling her to summary judgment. In her Report,
the magistrate judge disagrees and recommends that the court
deny McKnight’s motion for summary judgment.
objections, Plaintiff contends that, for the reasons stated
in her motion and reply, the court should grant her summary
judgment. (ECF No. 24 at 1). She argues that previously
served requests for admissions remain in effect after
removal. Id. Further, she contends that relieving a
defendant who has removed an action to federal court from the
obligation to respond to outstanding requests for admissions
is unfair to the plaintiff. Id. In their objections,
Defendants state that they filed objections only to preserve
an alternative sustaining ground that they would be entitled
to relief from any admissions because the requests to admit
go to the merits and would preclude this court from reaching
the merits of the matter. (ECF No. 26 at 1).
action removed from a state court “[a]ll injunctions,
orders, and other proceedings had in such action prior to its
removal shall remain in full force and effect until dissolved
or modified by the district court.” 28 U.S.C. §
Fourth Circuit Court of Appeals has not addressed whether a
party must respond to discovery that was served in a state
court proceeding after the action is removed to federal
court. Several district courts in this circuit have addressed
this issue, and McKnight relies upon Mann v. Metro. Life
Ins. Co., No. 99-0036, 1999 WL 33453411 (W.D. Va. July
9, 1999), in which the court determined that requests for
admission properly served in a state court case remain in
force when the case is removed to federal court. However, the
“vast majority of courts” have held that
“discovery requests are not injunctions, orders, or
proceedings of a state court” under 28 U.S.C. §
1450, and, thus, “admission requests served in a state
case need not be answered once the case is removed to federal
court, if the deadline to answer those requests did not lapse
before removal.” Steen v. Garrett, No.
2:12-cv-1662-DCN, 2013 WL 1826451, at *2 (D.S.C. Apr. 30,
2013). This interpretation comports with a plain reading of
Federal Rule of Civil Procedure 26, which provides that
parties may not seek discovery before they have participated
in a Rule 26(f) conference. Id. at *3 (citing
Fed.R.Civ.P. 26(d)(1)); see also Koenig v. USA Hockey,
Inc., No. 2:09-CV-1097, 2010 WL 4783042, at *6 (S.D.
Ohio June 14, 2010) (holding that discovery served in state
court prior to removal to federal court is not permitted
under the Federal Rules of Civil Procedure prior to the Rule
26(f) conference except in those limited circumstances
involving cases exempt from the requirement of Rule 26(d) or
when authorized by stipulation or court order);
O’Keefe v. State Farm Fire & Cas. Co., No.
1:08-cv-600-HSO-LRA, 2009 WL 2058867, at *2 (S.D.Miss. July
10, 2009) (holding that any discovery propounded in state
court before a suit is removed is no longer answerable
following removal); Wilson v. Gen. Tavern Corp., No.
05-81128-civ-RYSKAMP, 2006 WL 290490, at *1 (S.D. Fla. Feb.
2, 2006) (holding that “[d]iscovery served in state
court becomes null and ineffective upon removal.”);
Riley v. Walgreen Co., 233 F.R.D. 496, 499 (S.D.
Tex. 2005) (rejecting argument that Rule 26(d) merely tolls
the time to respond to requests for admission until after the
Rule 26(f) discovery conference).
once a case is removed to federal court, the Federal Rules of
Civil Procedure apply. Pursuant to Federal Rule of Civil
Procedure 26, “[a] party may not seek discovery from
any source before the parties have conferred as required by
Rule 26(f) . . . ” Fed.R.Civ.P. 26(d)(1).
McKnight’s position would effectively rewrite Rule
26(d) and create an exception to the discovery bar for
removed cases. Thus, the court agrees with the majority of
the courts which have addressed this issue and finds that
requests to admit, which were served while this action was
pending in state court, need not be answered if the action is
removed to federal court prior to the time responses are due.
Such requests are “nullified upon removal to [f]ederal
court.” Sterling Sav. Bank v. Fed. Ins. Co.,
No. 12-cv-0368, 2012 WL 3143909, at *2 (E.D. Wash. Aug. 1,
2012). Therefore, Defendants’ failure to respond does
not mean that the requests to admit are deemed admitted, and
McKnight is not entitled to summary judgment.
based on the foregoing, the court ADOPTS the
Report (ECF No. 23), and Plaintiff McKnight’s Motion
for Summary Judgment (ECF No. 18) is DENIED.
IS SO ORDERED.
Defendant Harmon was not served until
January 8, 2019.
Some districts address this in their
local rules. See, e.g., W.D. Okla. LCvR 81.2(c)
(“In the absence of a contrary stipulation or court
order, discovery pending in state court at the time ...