4 Moore, Federal Practice (Supp. 1963) ¶ 36.08; cf. 2A Barron Holtzoff, Federal Practice Procedure (1961), § 838. See Ark-Tenn Distributing Corp. v. Breidt, 209 F.2d 359, 360 (2d Cir. 1954); Dorsey v. Reconstruction Fin. Corp., 197 F.2d 468, 472 (7th Cir. 1952); United States v. Lemons, 125 F. Supp. 686, 688 (W.D.Ark. 1954); Sieb's Hatcheries, Inc. v. Lindley, 13 F.R.D. 113, 119 (W.D.Ark. 1952); Dulansky v. Iowa-Illinois Gas Elec. Co., 92 F. Supp. 118, 123 (S.D.Iowa 1950); Beasley v. United States, 81 F. Supp. 518, 528 (E.D.S.C. 1948). See Finman, The Request for Admissions in Federal Civil Procedure, 71 Yale L.J. 371, 421-22 (1962).
Plaintiff relies on a group of authorities where the sanction was imposed of treating the requests as admitted in situations where there was no sworn denial. See Beasley v. United States, E.D.S.C., 1948, 81 F. Supp. 518; United States v. Laney, E.D.S.C., 1951, 96 F. Supp. 482; Sieb's Hatcheries, Inc. v. Lindley, W.D.Ark., 1952, 13 F.R.D. 113; Heuer v. Basin Park Hotel and Resort, W.D.Ark., 1953, 114 F. Supp. 604. Cf. Batson v. Porter, 4 Cir., 1946, 154 F.2d 566.
Even if this were not so, I do not believe the failure of appellants' two employed attorneys to file notices of appeal in time because they were ignorant of the Rule's requirement can be said to be excusable neglect, in view of the fact that the Federal Rules of Criminal Procedure have been in effect about twelve years. Burke v. Canfield, 1940, 72 App.D.C. 127, 111 F.2d 526; Maghan v. Young, 1946, 80 U.S.App.D.C. 395, 154 F.2d 13; Christoffel v. United States, 1950, 88 U.S.App.D.C. 1, 190 F.2d 585; Sieb's Hatcheries, Inc., v. Lindley, D.C.W.D.Ark. 1952, 13 F.R.D. 113; Ohlinger v. United States, D.C.S.D.Idaho 1955, 135 F. Supp. 40; 1 Barron and Holtzoff, Federal Practice and Procedure § 216. These lawyers, retained by the appellants, were present and active throughout the trial, and also represent them on appeal.
Defendant cites to cases which define excusable neglect as "good faith and some reasonable basis for noncompliance with the rules." SeeIvy v. Kimbrough, 115 F.3d 550, 552 (8th Cir. 1997), quoting Adams v. AlliedSignal General Aviation Avionics, 74 F.3d 882, 887 (8th Cir. 1996); Sieb's Hatcheries, Inc. v. Lindley, 13 F.R.D. 113, 120 (W.D. Ark. 1952). Using the above definition, defendant argues that plaintiff's reasons for not meeting the Court's deadline does not constitute excusable neglect.
It is firmly established that the failure of a party to answer requests for admission of facts amounts in law to an admission of the truth of the requested facts. Handley v. City of Hope, D.C.W.D.Ark., 137 F. Supp. 442; Heuer v. Basin Park Hotel and Resort, D.C.W.D.Ark., 114 F. Supp. 604; Sieb's Hatcheries, Inc., v. Lindley, D.C.W.D.Ark., 13 F.R.D. 113. As a matter of fact, it makes little difference in the instant case since most of the facts sought by the requests for admissions are matters of public record about which there could be no dispute.
" This ground has no merit; defendant, with ample opportunity to do so, never offered any facts upon which the court could find "excusable neglect" pursuant to Rule 6(b)(2), Fed.R.Civ.P. See Sieb's Hatcheries, Inc., v. Lindley, D.C.W.D.Ark. 1952, 13 F.R.D. 113, 120 et seq.; 2 Moore, Fed.Prac. ¶ 6.08. "2.
However, defendant's answer to the requests for admissions was not sworn to, and as a matter of law the requests for admissions stand admitted. Sieb's Hatcheries, Inc., v. Lindley, D.C.W.D.Ark., 13 F.R.D. 113; Heuer v. Basin Park Hotel and Resort, D.C.W.D.Ark., 114 F. Supp. 604. The requests for admissions, which must be deemed as admitted, establish that the defendant operated a swimming pool in the City of Hope; that admissions were charged; that all members of the Caucasian race were admitted to said pool and that it was being operated exclusively for the use and benefit of the Caucasian race; that the residents of the City of Hope are not exclusively members of the Caucasian race; that the deceased was accepted as a customer on June 23, 1954; that the lifeguards on duty, who were agents of the defendant, knew that the deceased could not swim; that the pool has deep water which is over the head of the deceased; that the deceased died as a result of drowning; that she suffered great pain and suffering; that the cost of her funeral was $750; and that her parents suffered great pain, anguish, and mental suffering as a result of her drowning.
It is well settled that such admissions are the equivalent of sworn testimony. Ark-Tenn Distributing Corp. v. Breidt, 3 Cir., 209 F.2d 359; Dorsey v. Reconstruction Finance Corp., 7 Cir., 197 F.2d 468; Sieb's Hatcheries, Inc., v. Lindley, D.C.Ark., 13 F.R.D. 113; Beasley v. United States, D.C.S.C., 81 F. Supp. 518; Dulansky v. Iowa-Illinois Gas Electric Co., D.C.Iowa, 92 F. Supp. 118. However, there is a dearth of authority on the question of whether the admissions are absolutely binding upon the party making them.
This Court has only recently had occasion to pass upon the effect of the failure of a party to swear to his admissions. See Sieb's Hatcheries, Inc., v. Lindley, D.C.Ark., 13 F.R.D. 113. There is no doubt but that a failure to swear to said admissions amounts, in law, to an admission of the requested facts.
The question of whether the defendants should be allowed to amend their response to the request for admission of facts and the proposed amendment thereto was considered by the court and on September 30, 1952, the court rendered its opinion thereon and in accordance therewith the motion and the amended motion of defendants, Lester Lindley, F.M. Lindley and Sherman Madden, were denied, and the defendants were directed to file and serve briefs in opposition to the motion of plaintiff for summary judgment. See, Sieb's Hatcheries, Inc., v. Lindley, D.C.W.D.Ark., 13 F.R.D. 113. Following the filing of the opinion and the entry of the order in accordance therewith, the defendants filed their brief in opposition to the plaintiff's motion for summary judgment, and the court then considered the motion and briefs filed by the respective parties and, on November 25, 1952, filed its opinion sustaining the motion for summary judgment against defendants, Lester Lindley and F.M. Lindley, and directed that the plaintiff make proof of the amount due it on a judgment obtained in this court against Ozark Poultry Egg, Inc., on January 16, 1952.