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STATE OF MAINE CUMBERLAND, ss.  SUPERIOR COURT CIVIL ACTION Docket No. CV-06-259  
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DANIEL G. LILLEY LAW
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OFFICE P.A., Plaintiff,
v. ORDER
AQUAVISION LTD., et al., Defendants.
Before the court is plaintiff's motion for summary judgment.
Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. ~ Iohnson v. McNeil, 2002 ME 99, en: 8, 800 A.2d 702, 704. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 en: 8, 694 A.2d 924, 926.
In this case the basis for the key facts relied upon by plaintiff in its motion for summary judgment is a request for admissions that was sent by plaintiff to defendants' counsel on January 2,2007 and that had not been responded to at the time plaintiff filed its motion on March 30, 2007. In seeking summary judgment, plaintiff relies on the principle that a request for admissions not responded to within 30 days is admitted pursuant to M.R.Civ.P. 36(a). See Plaintiff's Statement of Material Facts (SMF) <JI<JI 2, 4,
6. Defendants have opposed the motion for summary judgment, arguing that they should be relieved of any admissions resulting from their failure to respond in 30 days because the request for admissions was overlooked by defendants' counsel when it got buried on his desk under other discovery. Defendants have also filed belated responses to plaintiff's request for admissions and have controverted the statements in plaintiff's SMF.
If the issue turned on whether defendants have demonstrated excusable neglect for their failure to respond to the request for admissions, the court would be inclined to rule for plaintiff. Overlooking a request for admissions might constitute excusable neglect under some circumstances, but counsel for defendant acknowledges he became aware of the request for admissions when he reviewed a March 8, 2007 letter from counsel for plaintiff. After that point, no immediate action was taken to remedy the situation and that was still true as of the date that plaintiff filed filed its motion for summary judgment on March 30, 2007. Plaintiff's counsel also has noted in an affidavit that, at least as of April 25, 2007, defendants have not responded to plaintiff's other discovery requests.
However, excusable neglect does not appear to be the applicable standard for whether the court should allow a party to withdraw an admission resulting from a failure to respond to a request for admissions within 30 days. See Sigue1 v. Allstate Life Ins. Co., 1995 U.s. App. LEXIS 4666 at 13 (lSI Cir. 1995) (unpublished),! FDIC v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994). Under M.R.Civ.P. Rule 36(b), the court may permit
1 Under First Circuit Local Rule 32.1.0, an unpublished decision may be cited but is not binding precedent.
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withdrawal of an admission "when the presentation of the merits will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits."
In this case presentation of the merits will be served by allowing the admission to be withdrawn. Moreover, plaintiff has not made any argument that it will be prejudiced in maintaining the action if it is required to litigate its promissory note claim on the merits. The kind of prejudice contemplated by Rule 36(b) involves unavailability of key witnesses or last minute difficulty in obtaining evidence on an issue thought to have been resolved by the request for admissions. Brook Village North Associates v. General Electric Co., 686 F.2d 66, 70 (1't Cir. 1982). No prejudice of this nature has been suggested or demonstrated in this case.
The court shall therefore permit the withdrawal of the admissions resulting from the failure to respond within 30 days and shall consider defendants' subsequent response dated April 18, 2007 to the request for admissions. As a result, there are disputed issues of fact on plaintiff's promissory note claim. Moreover, regardless of the outcome of plaintiff's summary judgment motion, there remain issues to be tried on the defendants' counterclaims.
The entry will be:
Plaintiff's motion for summary judgment is denied. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a). DATED: July S ,2007

Thomas D. Warren Justice, Superior Court
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IF COURTS 3.nd County 30x 287 ine 04112-0287
DANIEL LILLEY ESQ PO BOX 4803 PORTLAND ME 04112
=COURTS
nd County
ox 287
1e 04112-0287
LAWRENCE WINGER ESQ
75 PEARL STREET SUITE 217
PORTLAND ME 04101

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STATE OF MAINE .SVPERIOR COURT
CUMBERLAND, ss. . .,~ . ~ rGIYIL ACTION
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". Docket No. CV-06-259
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DANIEL G. LILLEY LAW OFFICES P.A., Plaintiff,
v. ORDER
DONALD L
AQUAVISION LTD, et al., . GARB

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