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finding that request for defendant to admit it was a close corporation was an application of law to facts
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Tyrone M. Bridges, Marlan Bradley Wilbanks, Wilbanks & Gouinlock, James Edward Butler, Jr., Butler, Wooten & Fryhofer, LLP, Ramsey B. Prather, Robert Henry Snyder, Jr., Butler, Wooten & Peak, LLP, Amy L. Berne, Paris A. Wynn, U.S. Attorney’s Office, Atlanta, GA, Mary Louise Cohen, Phillips & Cohen, LLP, Washington, DC, Joseph Marshall Colwell, Butler, Wooten, Fryhofer, LLP, Brandon L. Peak, Joel Orba Wooten, Jr., Butler, Wooten & Peak, LLP, Columbus, GA, for Relators/Plaintiffs.
Michael James King, Jeffrey Michael Smith, Greenberg Traurig, LLP, Matthew Robert Rosenkoff, Raanon Gal, Taylor English Duma LLP, Atlanta, GA, Lesli C. Esposito, John D. Huh, John Kenneth Lisman, Christian Van Buskirk, DLA Piper U.S. LLP, Brian Joseph Boyle, Alvin Johnson, Jr., DLA Piper Rudnick Gray Cary U.S. LLP, Philadelphia, PA, for Defendants.
ORDER
AMY TOTENBERG, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Relators’ Motion to Deem Requests For Admission (" RFAs" ) Admitted, [Doc. 824]. The motion concerns the Amended Responses given by Defendant Mortgage Investors Corporation (" MIC" ) to Relators’ Fifth RFAs (Doc. 824-2, hereinafter " Am. Resp." ). Relators ask the Court to deem admitted responses covering issues ranging from MIC’s corporate status to actions in relation to MICs governing documents. In their Reply, (Doc. 843), Relators modify their position, asking the Court to either deem the responses admitted, or order Defendant MIC to amend their responses. For the reasons discussed below, the Court GRANTS in part and DENIES in part Relators’ motion.
I. Background
Relators’ motion relates to a discovery dispute between the parties regarding Relators’ RFAs concerning their veil-piercing allegations. (Motion to Deem RFAs Admitted, Doc. 824 at 1). Relators first served these RFAs on Defendant MIC on April 13, 2017, and MIC served its responses on May 15, 2017. (Doc. 893-2). Relators then sent a letter to MIC on May 17, 2017 in which they complained of the responses given, clarified certain RFAs, and asked MIC to amend its responses. Id. MIC then sent an amended set of responses. See (Am. Resp., Doc. 824-2). Following the Amended Response, Relators filed the motion before the Court.
II. Rule 36
" Rule 36 is not a discovery device," Pickens v. Equitable Life Assur. Soc. of U.S., 413 F.2d 1390, 1393 (5th Cir. 1969) (citation omitted), but rather a way " to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be." Fed.R.Civ.P. 36, Advisory Committee Note to 1970 Amendment. Pursuant to Fed.R.Civ.P. 36, a party may seek an admission on matters of fact, opinion, and the application of law to fact. However, no party may seek an admission on a pure question of law. Fed.R.Civ.P. 36, Advisory Committee’s Note to 1970 Amendment. " Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Tardif v. People for the Ethical Treatment of Animals, No. 2:09-CV-537-FTM-29, 2011 WL 1627165, at *1 (M.D. Fla. Apr. 29, 2011) (citing Fed.R.Civ.P. 36(a)). Any Party responding to a request for admission that does " not know whether the matter it is asked to admit is true" may state as much but must " set forth in detail the reasons why this is so." 8B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2261 (3d ed. 2010).
" A denial [of an RFA] must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest." Fed.R.Civ.P. 36(a)(4). A party objecting to an answer or objection " may move to determine the sufficiency of [that] answer or objection." Fed.R.Civ.P. 36(a)(6). " On finding that an answer does not comply with [Rule 36], the Court may order that the matter is admitted or that an amended answer be served. The Court may defer its final decision until a pretrial conference or a specified time before trial." Fed.R.Civ.P. 36(a)(6). As Wright & Miller observes, " caution should be exercised in compelling a party to admit something believed to be true where there is a reasonable ground for concluding that the party seeking the admission will fail to establish the point at trial." Id.
III. Discussion
A. MIC’s " General Objections"
In both its original and amended responses to Relators’ RFAs, MIC began with " General Objection[s]" : (1) that the RFAs were untimely when served, which was mooted by the extension of discovery; and (2) that the RFAs are " needlessly cumulative," and " clearly presented for an improper purpose." (Am. Resp. at 1-3), (Defendant’s Original Responses to Relators Fifth RFAs, Doc. 893-1 at 1). The Requests are neither. However, at least with respect to these, by nonetheless answering, MIC waived these boilerplate objections. See Tardif, 2011 WL 1627165, at *1 (citing Mann v. Island Resorts Dev., Inc., No. 3:08CV297/RS/EMT, 2009 WL 6409113, at *2-3 (N.D. Fla. Feb. 27, 2009)) (" If an objection to a discovery request is raised, and then the question is answered ‘subject to’ or ‘without waiving’ the objection, this court is reluctant to sustain the objection.). The Court does not extend this principle, however, to the specific objection below regarding RFA 1.
B. RFA 1: Close Corporation
Relators’ RFA 1 requests that MIC admit that " MIC is not a close corporation as defined by Ohio Revised Code § 1707.591." (Am. Resp. at 4). MIC objects " on the ground that [the RFA] seeks a purely legal conclusion" and then gives a qualified response: " ... MIC admits that it does not currently, and has not to date, contended that it is a ‘close corporation’ as defined in [the quoted section], but MIC reserves the right to make such contention in the future." Id. Relators argue that this request is instead seeking an application of law to fact, (Motion to Deem RFAs Admitted at 10).
The Court notes that RFA 1 contains a typographical error: it refers to " Ohio Revised Code § 170
" The distinction between a request that permissibly seeks the admission of an issue requiring the application of the law to the facts of a case and a request that impermissibly seeks the admission of a pure issue of law is not easy to draw." David v. Katz, No. CIV.A. 94-3989, 2000 WL 1682999, at *2 (E.D. La. Sept. 26, 2000). In the comments accompanying the 1970 amendment to Rule 36, the Advisory Committee supplied two examples of permissible applications of law to fact: first, " an admission that an employee acted in the scope of his employment," Fed.R.Civ.P. 36, Advisory Committee’s Note to 1970 Amendment, and second, an admission " that ‘the premises on which said accident occurred, were occupied or under the control’ of one of the defendants," Id. (citing McSparran v. Hanigan, 225 F.Supp. 628, 636 (E.D. Pa. 1963)).
Further examples of permissible requests seeking the application of law to fact include: a request to admit that a corporation was a citizen of a particular state under 28 U.S.C. § 1332, Caruso v. Coleman Co., No. CIV. A. 93-CV-6733, 1995 WL 347003, at *4 (E.D. Pa. June 7, 1995); a request to admit that " Defendant used an ‘automatic dialing system’ within the meaning of the TCPA" Phan v. Convergent Outsourcing, Inc., No. 3:14-CV-84-J-25JBT, 2014 WL 12623815, at *3 (M.D. Fla. July 16, 2014); a request that " relate[d] to the interpretation of a contract at issue in [the] case," Sigmund v. Starwood Urban Retail VI, LLC, 236 F.R.D. 43, 46 (D.D.C. 2006); a request to admit " that no state law required an identified Defendant to contract with [plaintiff]," Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164-MLB-DWB, 2007 WL 3171768, at *5 (D. Kan. Oct. 29, 2007); a request to admit generally to a parties’ obligations as a matter of law under the contract at issue in the case, Langer v. Monarch Life Ins. Co., 966 F.2d 786, 805 (3d Cir. 1992).
Examples of requests held to seek conclusions of pure law are: " generally-worded legal conclusions, without tying those conclusions to any facts presented" McCrimmon v. Georgia Cmty. Support & Sols., Inc., No. 1:08-CV-3919-ODE, 2010 WL 11507675, at *3 (N.D.Ga. Jan. 19, 2010) (e.g., " that it is unlawful to discriminate against someone on the basis of a disability" ); requests to admit that provisions of statutes either do or do not apply to the case, see, e.g., Disability Rights Council v. Wash. Metro. Area, 234 F.R.D. 1, 2 (D.D.C. 2006) (" Admit that the FTA has not adopted any regulations nor published any guidance requiring drivers to compensate for traffic and accidents on their route." ) (internal quotations omitted); Perez v. Aircom Mgmt. Corp., No. 12-60322-CIV, 2013 WL 45895, at *2 (S.D. Fla. Jan. 3, 2013) (" admit that the Fair Labor Standards Act and the Florida Minimum Wage Act apply to its business and to Plaintiff’s work at the time she was employed by the Defendant" ); but see, Caruso, supra, (holding request to admit corporate citizenship under 28 U.S.C. § 1332 an application of law to fact); and requests to admit that a party is or is not compliant with federal regulations, see Reichenbach v. City of Columbus, No. 2:03-CV-1132, 2006 WL 143552, at *2 (S.D. Ohio Jan. 19, 2006).
There is something simply irreconcilable about these distinctions. Compare, e.g., Heartland Surgical Specialty Hosp., 2007 WL 3171768, at *5, with Disability Rights Council, 234 F.R.D. at 2. Similarly, the permissible request concerning whether someone was within the scope of his employment, Fed.R.Civ.P. 36, Advisory Committee Note to 1970 Amendment, while an application of law to fact, nonetheless involves a legal conclusion. On the other hand, the question of whether and how a particular statute applies to the given set of facts, e.g., Disability Rights Council, 234 F.R.D. at 2, is a quintessential application of law to fact.
More helpful is guidance from the drafters of the rule. In amending Rule 36 to explicitly allow applications of law to fact, the Advisory Committee noted: " The amended provision does not authorize requests for admissions of law unrelated to the facts of the case. " Fed.R.Civ.P. 36, Advisory Committee Notes to 1970 Amendment (emphasis added). The key distinction, then, in determining whether a request relating to a legal question is not whether it applies to statutory or contractual duties, but rather, proximity and relevance to the discrete facts of the case. Requests that deal with applications of the law to facts that, though they are related to the given case are asked in a way that applies beyond it are likely impermissible, e.g., Disability Rights Council, 234 F.R.D. at 2, whereas requests that apply the legal conclusions to the discrete facts of the given case are more likely permissible, e.g., Phan, 2014 WL 12623815, at *3.
With this in mind, the Court turns to the Ohio statute referenced in RFA 1. Oh. Rev. Code § 1701.591 is the state’s close corporation statute. The statute was " a special provision intended, as in the case of similar legislation previously adopted in a number of states, to permit closely held corporations and their shareholders to be governed in effect as if the corporation were a partnership." Oh. Rev. Code § 1701.591, OSBA Corporation Law Committee Comment, 1981. " This is accomplished solely by the adoption of a ‘close corporation agreement’ meeting all three of the requirements set forth in division (A)" as well as the absence of a few disqualifying events. Id. Section (A) states:
" In order to qualify as a close corporation agreement under this section, the agreement shall meet the following requirements: (1) Every person who is a shareholder of the corporation at the time of the agreement’s adoption, whether or not entitled to vote, shall have assented to the agreement in writing; (2) The agreement shall be set forth in the articles, the regulations, or another written instrument; (3) The agreement shall include a statement that it is to be governed by this section."
Oh. Rev. Code § 1701.591(A). In other words, in order to be a close corporation under this section, a corporation must at a minimum adopt an agreement that references this section with the proper approvals from shareholders.
As propounded and in light of the clerical nature of the statute, Relators’ RFA 1 seeks an application of law to the specific facts of this case. Asking MIC to admit that it is not a close corporation as defined under this section is the logical equivalent of asking MIC to admit that it has not adopted a " close corporation" as described in subsection (A) of that statute. It is fundamentally a question of applying the administrative requirements of § 1701.591 to the specific facts of MIC’s corporate status. It resembles less the abstract applications of law involved in Disability Rights Council, 234 F.R.D. at 2, or the " bare legal conclusions" sought in McCrimmon, 2010 WL 11507675 at *3, and more the perfunctory, case-specific questions in Caruso, 1995 WL 347003, at *4, and Phan, 2014 WL 12623815, at *3. Given the specifics of the statute in question, Relators’ request is straightforward and concerns an uncomplicated question as to whether MIC has or has not adopted and implemented such a " close corporation agreement."
MIC’s objection to RFA 1 is therefore OVERRULED.
MIC’s contingent response— that it has not contended it is such a close corporation while reserving the right to contend so later, (Am. Resp. at 4)— does not meet the substance of the request. MIC either has or has not executed such a close corporation agreement. The discussion of contentions in MIC’s answer to RFA 1 is nonresponsive, and it is hereby ORDERED to amend its response in conformity with the rule.
C. RFAs 34-37, 57, 59, 61, 63, 68: Unqualified Denials
MIC responded to RFAs 34-37, 57, 61, 63, and 68 with a simple denial followed by a citation to supporting documentation. See, e.g., (Am. Resp. at 19). Relators challenge the truth of these denials and ask the Court to examine them. Id. at 17. This would be improper. " A denial is a sufficient answer." Harris v. Oil Reclaiming Co., 190 F.R.D. 674, 678 (D. Kan. 1999). " If a responding party files a response that contains the proper detail ... the propounding party may not challenge the denial on the ground that it is unsupported by the evidence." 8B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure. § 2263 (3d ed. 2010) (citations omitted). The proper method to challenge the substance of a denial lies under Rule 37(c)(2). See also Fed.R.Civ.P. 36, Advisory Committee Note to 1970 Amendment (" Rule 36 does not lack a sanction for false answers; Rule 37(c) furnishes an appropriate deterrent." ). The Court thus declines to examine the veracity of MIC’s denials at this juncture.
Relators Motion is DENIED with respect to RFAs 34-37, 57, 61, 63, and 68.
D. Disputed Qualifications
The remaining dispute is about MIC’s qualified responses. With a few exceptions, MIC qualifies every disputed response— so much so that Relators accuse MIC of essentially qualifying their admission into uselessness, (Motion to Deem RFAs Admitted at 13). " If good faith requires that a party qualify its answer or deny only a part of the requested matter, it must specify so much of the request as is true and deny only the remainder," 8B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2260 (3d ed.), but " such qualification or part denial must be clear." Havenfield Corp. v. H & R Block, Inc., 67 F.R.D. 93, 97 (W.D. Mo. 1973) (citation omitted).
Requests 2-25; 42-56, and 70; and 76-91 are all substantially similar-if not in the requests sought, then in the disputed responses given. For each group, MIC responds to Relators’ requests by admitting and denying in part, and then specifically admitting to what is, in essence, the substance of the request. See, e.g., (Am. Resp. at 4) (" MIC admits that, during the specified time period, MIC’s shareholders did not hold a meeting that they specifically designated as an annual meeting," ), Id. at 8 (" MIC admits that no such notice was delivered in writing" ). Thereafter, MIC " otherwise denies[s]" the request, and adds that it has acted " consistent with the Bylaws and Regulations." Id. Relators argue that these qualifications are designed to confuse, not clarify, (Motion to Deem RFAs Admitted at 13), while MIC accuses Relators of attempting to secure by implication a prejudicial admission based on an inaccurate picture of the bylaws, (Response, Doc. 831 at 12).
The Court finds Harris, 190 F.R.D. 674, instructive on this issue. In that case, the plaintiffs sought to prove that a defendant held himself out as a general partner. Id. at 676. They sent several RFAs involving actions taken by that defendant on behalf of the partnership. Id. For example, plaintiffs sent a request seeking an admission from defendant that " a certain document is a list of checks ‘that you signed as Bill E. Harrison’ " as well as a request to admit " that certain phone calls were made ‘on behalf of’ [the partnership]." Id. at 676-77. The defendant qualified several of his responses adding that signatures and phone calls were made " ‘in his capacity’ as an agent or officer," of the business. Id. at 677. In ruling on the same qualification made to different requests, the Harris court looked to whether capacity had been put in issue by the request itself or whether instead the qualification injected argument where none was called for. Id. at 676-77. Where an issue had been raised in the request, a qualification meeting that issue was proper; otherwise, it was not. Id. This seems the correct metric by which the Court should balance the right of a party to qualify responses when necessary against the requirement that responses meet the substance of the request.
1. RFAs 2-9: " Annual Meeting of the Shareholders"
Requests 2-9 ask MIC to admit that it held " no annual meeting of the shareholders" in a given year. (Am. Resp. at 4-8). MIC responds by admitting " that, during the specified time period, MIC’s shareholders did not hold a meeting that they specifically designated as an annual meeting" and then " otherwise denie[s]" the request. Id. It finally argues that it acted " consistent with [its] Bylaws and Regulations." Id.
MIC either held an annual meeting of the shareholders in a given year or it did not. This simple fact is all Relators requested; the requests did not expressly or impliedly argue that MIC violated its bylaws, even if Relators use the response as a building block for a later argument to that effect. If MIC wants to meet an anticipated argument about its bylaws, it " will have opportunity at trial or in summary judgment to present evidence of [its adherence to the Bylaws] and to argue the legal effect of [MIC’s] actions." Harris, 190 F.R.D. at 676. It was improper for MIC to " argue the legal effect" of the facts requested where such argument was unsolicited. Id. The Court finds the following with respect to MIC’s Amended Responses to RFAs 2-9: everything except the second sentence in the response does not meet the substance of the request. In addition, MIC’s nebulous " otherwise denied" does not meet the substance of the request.
With respect to RFAs 2-9, Relators’ Motion is GRANTED. MIC is therefore ORDERED to amend its response to these requests in accordance with this Order and Rule 36(a).
2. RFAs 10-25: " Written Notice" of Shareholder Meetings
RFAs 10-25 ask MIC to admit that " [w]ritten notice stating the time, place and purpose of a meeting of the MIC shareholders was not delivered" to a particular person in a given year. (Am. Resp. at 8-17). MIC admits and denies these requests " in part." Id. It " admits that no such notice was delivered in writing" but " otherwise denie[s]" the request. Id. MIC then argues that that it has acted " consistent[ly] with its Bylaws and Regulations." Id.
Like the RFAs regarding annual meetings, these requests are straightforward. Written notice was either delivered to the given person or it was not. Relators did not ask about other forms of notice permitted in the bylaws, nor did they specify or imply in the request that MIC has violated its bylaws. MIC’s qualification can serve only to confuse the record and muddy the responsive portion of their response. The Court finds the following with respect to RFAs 10-25: everything except the second sentence in the response does not meet the substance of the request. In addition, MIC’s " otherwise denied" does not meet the substance of the request.
With respect to RFAs 10-25, Relators’ Motion is GRANTED. MIC is therefore ORDERED to amend its response to these requests in accordance with this Order and Rule 36(a).
3. RFAs 50, 52, 54, 70, 72, 76, and 78-90: Written Consent in Lieu of Special Meetings
With respect to RFAs 50, 52, 54, 70, 72, 76, and 78-90, MIC answers a request that was not served by Relators. These requests all ask MIC to admit that " [t]here is no written consent of the Board of Directors of MIC in lieu of a special meeting" to approve certain actions taken by the company. See, e.g., (Am. Resp. at 28, 29, 30, and 37). As above, MIC responds by admitting and denying " in part." See, e.g., Id. at 28. MIC then admits " only that its Board of Directors did not execute a separate written consent regarding this specific" action and " otherwise denie[s]" the request. Id. (emphasis added). It then specifically denies that the action in question was not approved by the Board of Directors and offers argument that the company complied with its bylaws. Id.
These responses do not fairly meet the substance of Relators’ requests. MIC must respond to the request given. Relators did not ask MIC to admit that there was no " separate" written consent, and MIC’s injection of the word changes the meaning of their response such that it does not meet the substance of the request.
With respect to RFAs 50, 52, 54, 70, 72, 76, and 78-90, the Court finds the answers given by MIC are unresponsive in their entirety and Relators’ Motion is therefore GRANTED. MIC is ORDERED to amend its responses in accordance with this Order and Rule 36(a).
4. RFAs 42-49, 77, and 91: Approval by All Shareholders
RFAs 42-49, 77, and 91 similarly request that MIC admit that certain bonuses and other decisions were " not approved by all MIC shareholders." See, e.g., (Am. Resp. at 24). MIC responds by admitting that each action " was not specifically and directly approved by all of MIC’s shareholders; otherwise denied." (Id. ) (emphasis added). MIC then adds unsolicited general information as to the propriety of its actions. (Id. ).
These responses do not fairly meet the substance of Relators’ requests. Relators did not ask MIC to admit that the action " was not specifically and directly approved by the shareholders," and MIC’s injection of these words changes the meaning of their response such that it does not meet the substance of the request.
With respect to RFAs 42-49, 77, and 91, the Court finds that the answers given by MIC are unresponsive in their entirety and Relators’ Motion is therefore GRANTED. MIC is ORDERED to amend its responses in accordance with this Order and Rule 36(a).
5. RFAs 31-33: " Executive" Bonus
RFAs 31-33 each ask MIC to admit that a particular individual was paid " an ‘executive’ bonus" in a given year. (Am. Resp. at 19). To each, MIC admits and denies in part. Id. MIC admits " only that [the individual] was paid a bonus during this time period, and that MIC has characterized it as an ‘executive bonus’; otherwise denied." Id. at 19-20. MIC then calls the " Relators’ use of the term ‘executive’ [ ] ambiguous." Id.
MIC’s answers to RFAs 31-33 are evasive and do not meet the substance of the request. See Thalheim v. Eberheim, 124 F.R.D. 34, 35-36 (D. Conn. 1988) (" a reviewing court should not permit a responding party to undermine the efficacy of the rule by crediting disingenuous, hair-splitting distinctions whose unarticulated goal is unfairly to burden an opposing party." ). The requests are not at all ambiguous. With respect to RFAs 31-33 Relators’ motion is therefore GRANTED and these requests are DEEMED ADMITTED.
6. RFAs 51, 53, 55, 56, 58, 60, 62, 64, 65, 71
This group of RFAs concerns requests to confirm payment amounts to Edwards in various years. Each is worded: " The amount of executive bonus paid by MIC to [Edwards]" in a given month of a given year was a particular amount. See, e.g., (Am. Resp. at 29). MIC responds to each by admitting and denying in part. Id. at 30. Specifically, MIC admits that each amount " represents the amount paid to Mr. Edwards on that date gross of taxes; otherwise denied." Id.
MIC’s discussion of taxes in their responses to this group of RFAs is not responsive and does not properly meet the substance of the request. These requests ask nothing of taxes, nor is such a discussion warranted by implication. With respect to these RFAs, Relators’ Motion is therefore GRANTED. Defendant MIC is ORDERED to amend its responses to RFAs 51, 53, 55, 56, 58, 60, 62, 64, 65, and 71 to conform with this Order and Rule 36(a).
7. RFAs 66-67
RFAs 66 and 67 are clear and direct. MIC’s responses are not. Each RFA asks MIC to admit that Edwards was not the CEO of MIC after a specific date; RFA 67 adds that Edwards served only as Chairman of the MIC Board of Directors after that date. (Am. Resp. at 35-36). MIC admits and denies each in part and adds extraneous information regarding Edwards various positions. Id.
MIC’s responses to RFAs 66 and 67 are evasive, do not meet the substance of the request, and can have no function other than obfuscation. With respect to these RFAs, Relators’ Motion is GRANTED. RFAs 66 and 67 are hereby DEEMED ADMITTED.
IV. CONCLUSION
For the reasons discussed above, Relators’ Motion to Deem RFAs Admitted [Doc. 824] is GRANTED as to RFAs 1-25; 42-56, 58, 60, 62, 64, 65, 70-72, 76-91. Defendant MIC is ORDERED to amend its responses to these RFAs to conform with this Order and Rule 36(a) by November 10, 2017.
As to RFAs 66, 67, and 31-33, Relators’ motion [Doc. 824] is GRANTED and those RFAs are DEEMED ADMITTED.
As to RFAs 34-37, 57, 59, 61, 63, and 68, Relators’ motion [Doc. 824] is DENIED.
IT IS SO ORDERED.
7 1 See e.g. the relevant Ohio statute. See e.g. Hartley & Parker, Inc. v. Florida Beverage Corp., See also Caruso v. Coleman Co., No. CIV. A. See