Preview
NO. 2017
TERRENCE ALLEN IN THE DISTRICT COURT
HARRIS COUNTY, TEXAS
JAMES FRANCISCO
AND KROGER TEXAS L.P. 215TH DISTRICT COURT
DEFENDANT MOTION FOR LEAVE TO FILE RESPONSES TO REQUEST FOR
ADMISSIONS AND OBJECTIONS TO REQUEST FOR PRODUCTION
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Defend JAMES FRANCISCO one of the Defendants in the above
referenced case, and hereby files this Motion for Leave to File Responses to Request for Admissions
and Objections to R quest for Production, and as grounds therefore, would show as follows:
his lawsuit was filed on July 2017 naming this Defendant and his employer,
Kroger for a vehicle collision incident that occurred on February 23, 2016. The lawsuit was filed
with a style of Plaintiff s Original Petition and Request for Disclosure On August 2, 2017,
Kroger LP was served with this document by a process server, as per the citation affidavit in the
court s file. roger filed its answer for both Kroger and Defendant James Francisco on August 23,
2017. Discovery was served on the undersigned counsel for Kroger and Francisco later
September, and responded to by both Defendants.
In the afternoon of October 20, 2020, the day before Francisco s scheduled 9 am
deposit laintiff s counsel sent Defendant an email asking about the responses of Defendant
James Francisco to Requests for Admissions. Plaintiff s counsel then sent a document to Defendants
ch was styled Plaintiff s First Request for Admissions an Request for Pro ction to Defendant
Admiral Francisco Though this case has been pending for over three years, and Defendant
Francisco deposition was scheduled five times in the past, this was the first time that any mention
was ever made of missing responses to Request for Admissions or Production from Francisco. It
was also the first time that the undersigned counsel had ever seen this document.
3. A review of the online filings in this court naturally followed, and this document was
found, showing that it was filed on July 13, 2017, six days after the Original Petition. These
discovery requests were filed in violation of Rule 191.4 which says such discovery materials should
not be filed with the Court, and counsel had no reason to look for or expect discovery requests in the
Court’s file. The certificate of service from Plaintiff’s counsel says that it was served by way of
process server. This was inaccurate. Defendant Francisco was never personally served with any
documents, and certainly not the Requests for Admissions or Request for Production which is the
subject of this motion.
4. A citation was filed with this court on September 5, 2017, alleging that “James
Francisco” was served at 17206 Imperial Valley Drive, #221, Houston, Texas.” This is not true.
Defendant Francisco was never served with any documents in this case, except through his attorney.
See affidavit of James “Admiral” Francisco (Exhibit A), attached to this motion wherein he recites
that he has never been served with any form of process or service relating to this lawsuit.
5. The result of this unexplained set of circumstances is that this Defendant never had
possession of Requests for Admissions until October 20, 2020, less than 24 hours prior to the
scheduled start of this Defendant’s long-awaited deposition. Responses were done as soon as
possible, and the responses were made and forwarded to Plaintiff’s counsel prior to the start of
Defendant Francisco’s 9 a.m. deposition on October 21, 2020.
6. Defendant Francisco was first served with the Requests for Admission on October 20,
2020. Pursuant to Rule 198 of the Texas Rules of Civil Procedure, he was entitled to provide
answers to these Requests on or before November 19, 2020. Plaintiff’s counsel has indicated that it
is their position that the Requests are already deemed admitted because answers were not provided in
2017. Therefore, in the event that this Court concludes that the Requests for Admission are late and
otherwise deemed admitted by operation of law, Defendant Francisco seeks leave of court to file
responses which would have the effect of withdrawing and amending admissions that might
otherwise be considered deemed.
7. Rule 198.3 of the Texas Rules of Civil Procedure provides that the court may permit
otherwise deemed admissions to be amended or withdrawn upon the showing of good cause, and
where the court finds that the other party is not “unduly prejudiced and that the presentation of the
merits of the action will be subserved by permitting the party to amend or withdraw the admission.”
Defendant Francisco has good cause for the late filed admission responses because neither he nor his
counsel had ever seen the requests for admissions prior to October 20, 2020. The responses were
then provided in less than 24 hours from that receipt. See the affidavit of Brock C. Akers, appended
to this Motion. (Exhibit B)
8. Plaintiff is not and cannot be prejudiced by the late filing of the Responses to Request
for Admission, other than to not have the “gotcha” advantage of a deemed admission. First,
Plaintiff’s counsel did not inquire about the responses at all until the afternoon of October 20, 2020,
the day before the fifth scheduled deposition of Defendant Francisco. Clearly, Plaintiff was not
relying upon these responses or lack thereof prior to that time. Second, Defendant Francisco had
filed other discovery responses, early in the case, which described clearly what his version of the
accident made the basis of the suit was, and wherein he denied any responsibility for the accident.
Those matters which are denied by Defendant Francisco relate to specifics concerning the cause of
the accident itself, and the fault of the respective parties. If these denials were otherwise deemed
admitted, Defendant Francisco’s description of the accident provided at the beginning of this lawsuit
would be meaningless. The deemed admissions would eliminate any defenses that Francisco would
have for this accident which is not his fault, and thereby cast into liability his employer Kroger.
9. This case should not be decided by this irreconcilable differences in the record as to
the service of the Requests for Admission on Defendant Francisco, which means either he was never
served (as he vehemently contends) or if he was served as the citation would indicate, there was a
mistake relating to the transmissions of the Requests for Admissions (though there is no evidence
that Francisco received these requests, and certainly did not present them to his counsel retained by
his employer). Instead, this court should easily determine that this case and the interest of justice
would be best served by permitting Defendant Francisco to present evidence relating how the
accident really happened, and to defend himself in terms of the responsibility for this accident.
Plaintiff is not prejudiced in any meaningful way by not having an unfair technical advantage by
way of preventing Defendant Francisco from defending himself. It has not affected discovery, or
impeded Plaintiff in the development of his lawsuit. For instance, Plaintiff’s counsel took
Francisco’s deposition for 4.5 hours after telling Francisco’s counsel that the admissions were to be
deemed admitted. At the close of the deposition, and while there was still an opportunity to ask
questions of Francisco, the undersigned counsel told Plaintiff’s counsel it was our intent to file this
motion, which motion should be granted given all of the circumstances recited herein. Plaintiff’s
counsel chose not to continue to ask questions of Defendant Francisco at that time.
10. Defendant Francisco further moves the Court for leave to file objections to the
Request for Production that was part of the same document as the Requests for Admission. For the
same reasons recited above, Defendant Francisco did not receive the Request for Production until
October 20, 2020. He filed a response to the Request for Production prior to the commencement of
his deposition, again in less than 24 hours of its receipt. However, in the event that the Court
concludes that the Request for Production was in his possession earlier than that day, Defendant
Francisco seeks leave of court to file objections to discovery requests that are improper, overly broad
or seek confidential and private information from Defendant Francisco that are not in issue in this
lawsuit.
CONCLUSION
This case ought not be affected by the unexplained conflict as to when the Requests for
Discovery and Request for Production were received by Defendant Francisco. Plaintiff cannot
credibly suggest that any delay in this regard has adversely affected the development and
presentation of Plaintiff’s case. He is simply not prejudiced. On the other hand, if the
Responses to Requests for Admission and Requests for Production are determined late, without
relief from this court, Defendants are without an ability to defend this very defensible lawsuit.
Such a result would not just compromise the interests of justice, but shatter the interests of
justice.
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that the Court
grant the Motion for Leave to File Responses to Request for Admissions and Request for Production
of Defendant James Francisco, and for such other and further relief to which Defendant is otherwise
entitled.
Respectfully submitted,
THE AKERS FIRM, PLLC
By:
Brock C. Akers
State Bar No. 00953250
3401 Allen Parkway, Suite 101
Houston, Texas 77019
Telephone: (713) 877-2500
Facsimile: 1-713-583-8662
Email - bca@akersfirm.com
ATTORNEY FOR DEFENDANTS
CERTIFICATE OF CONFERENCE
A conference has been held on the merits of this Motion:
XXX Plaintiff’s counsel is opposed to Defendants’ request under this Motion.
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing instrument has been served in compliance with
Rules 21 and 21a of the Texas Rules of Civil Procedure on this 21st day of October 2020.
Preview
NO. 2017 TERRENCE ALLEN IN THE DISTRICT COURT HARRIS COUNTY, TEXAS JAMES FRANCISCO AND KROGER TEXAS L.P. 215TH DISTRICT COURT DEFENDANT MOTION FOR LEAVE TO FILE RESPONSES TO REQUEST FOR ADMISSIONS AND OBJECTIONS TO REQUEST FOR PRODUCTION TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Defend JAMES FRANCISCO one of the Defendants in the above referenced case, and hereby files this Motion for Leave to File Responses to Request for Admissions and Objections to R quest for Production, and as grounds therefore, would show as follows: his lawsuit was filed on July 2017 naming this Defendant and his employer, Kroger for a vehicle collision incident that occurred on February 23, 2016. The lawsuit was filed with a style of Plaintiff s Original Petition and Request for Disclosure On August 2, 2017, Kroger LP was served with this document by a process server, as per the citation affidavit in the court s file. roger filed its answer for both Kroger and Defendant James Francisco on August 23, 2017. Discovery was served on the undersigned counsel for Kroger and Francisco later September, and responded to by both Defendants. In the afternoon of October 20, 2020, the day before Francisco s scheduled 9 am deposit laintiff s counsel sent Defendant an email asking about the responses of Defendant James Francisco to Requests for Admissions. Plaintiff s counsel then sent a document to Defendants ch was styled Plaintiff s First Request for Admissions an Request for Pro ction to Defendant Admiral Francisco Though this case has been pending for over three years, and Defendant Francisco deposition was scheduled five times in the past, this was the first time that any mention was ever made of missing responses to Request for Admissions or Production from Francisco. It was also the first time that the undersigned counsel had ever seen this document. 3. A review of the online filings in this court naturally followed, and this document was found, showing that it was filed on July 13, 2017, six days after the Original Petition. These discovery requests were filed in violation of Rule 191.4 which says such discovery materials should not be filed with the Court, and counsel had no reason to look for or expect discovery requests in the Court’s file. The certificate of service from Plaintiff’s counsel says that it was served by way of process server. This was inaccurate. Defendant Francisco was never personally served with any documents, and certainly not the Requests for Admissions or Request for Production which is the subject of this motion. 4. A citation was filed with this court on September 5, 2017, alleging that “James Francisco” was served at 17206 Imperial Valley Drive, #221, Houston, Texas.” This is not true. Defendant Francisco was never served with any documents in this case, except through his attorney. See affidavit of James “Admiral” Francisco (Exhibit A), attached to this motion wherein he recites that he has never been served with any form of process or service relating to this lawsuit. 5. The result of this unexplained set of circumstances is that this Defendant never had possession of Requests for Admissions until October 20, 2020, less than 24 hours prior to the scheduled start of this Defendant’s long-awaited deposition. Responses were done as soon as possible, and the responses were made and forwarded to Plaintiff’s counsel prior to the start of Defendant Francisco’s 9 a.m. deposition on October 21, 2020. 6. Defendant Francisco was first served with the Requests for Admission on October 20, 2020. Pursuant to Rule 198 of the Texas Rules of Civil Procedure, he was entitled to provide answers to these Requests on or before November 19, 2020. Plaintiff’s counsel has indicated that it is their position that the Requests are already deemed admitted because answers were not provided in 2017. Therefore, in the event that this Court concludes that the Requests for Admission are late and otherwise deemed admitted by operation of law, Defendant Francisco seeks leave of court to file responses which would have the effect of withdrawing and amending admissions that might otherwise be considered deemed. 7. Rule 198.3 of the Texas Rules of Civil Procedure provides that the court may permit otherwise deemed admissions to be amended or withdrawn upon the showing of good cause, and where the court finds that the other party is not “unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission.” Defendant Francisco has good cause for the late filed admission responses because neither he nor his counsel had ever seen the requests for admissions prior to October 20, 2020. The responses were then provided in less than 24 hours from that receipt. See the affidavit of Brock C. Akers, appended to this Motion. (Exhibit B) 8. Plaintiff is not and cannot be prejudiced by the late filing of the Responses to Request for Admission, other than to not have the “gotcha” advantage of a deemed admission. First, Plaintiff’s counsel did not inquire about the responses at all until the afternoon of October 20, 2020, the day before the fifth scheduled deposition of Defendant Francisco. Clearly, Plaintiff was not relying upon these responses or lack thereof prior to that time. Second, Defendant Francisco had filed other discovery responses, early in the case, which described clearly what his version of the accident made the basis of the suit was, and wherein he denied any responsibility for the accident. Those matters which are denied by Defendant Francisco relate to specifics concerning the cause of the accident itself, and the fault of the respective parties. If these denials were otherwise deemed admitted, Defendant Francisco’s description of the accident provided at the beginning of this lawsuit would be meaningless. The deemed admissions would eliminate any defenses that Francisco would have for this accident which is not his fault, and thereby cast into liability his employer Kroger. 9. This case should not be decided by this irreconcilable differences in the record as to the service of the Requests for Admission on Defendant Francisco, which means either he was never served (as he vehemently contends) or if he was served as the citation would indicate, there was a mistake relating to the transmissions of the Requests for Admissions (though there is no evidence that Francisco received these requests, and certainly did not present them to his counsel retained by his employer). Instead, this court should easily determine that this case and the interest of justice would be best served by permitting Defendant Francisco to present evidence relating how the accident really happened, and to defend himself in terms of the responsibility for this accident. Plaintiff is not prejudiced in any meaningful way by not having an unfair technical advantage by way of preventing Defendant Francisco from defending himself. It has not affected discovery, or impeded Plaintiff in the development of his lawsuit. For instance, Plaintiff’s counsel took Francisco’s deposition for 4.5 hours after telling Francisco’s counsel that the admissions were to be deemed admitted. At the close of the deposition, and while there was still an opportunity to ask questions of Francisco, the undersigned counsel told Plaintiff’s counsel it was our intent to file this motion, which motion should be granted given all of the circumstances recited herein. Plaintiff’s counsel chose not to continue to ask questions of Defendant Francisco at that time. 10. Defendant Francisco further moves the Court for leave to file objections to the Request for Production that was part of the same document as the Requests for Admission. For the same reasons recited above, Defendant Francisco did not receive the Request for Production until October 20, 2020. He filed a response to the Request for Production prior to the commencement of his deposition, again in less than 24 hours of its receipt. However, in the event that the Court concludes that the Request for Production was in his possession earlier than that day, Defendant Francisco seeks leave of court to file objections to discovery requests that are improper, overly broad or seek confidential and private information from Defendant Francisco that are not in issue in this lawsuit. CONCLUSION This case ought not be affected by the unexplained conflict as to when the Requests for Discovery and Request for Production were received by Defendant Francisco. Plaintiff cannot credibly suggest that any delay in this regard has adversely affected the development and presentation of Plaintiff’s case. He is simply not prejudiced. On the other hand, if the Responses to Requests for Admission and Requests for Production are determined late, without relief from this court, Defendants are without an ability to defend this very defensible lawsuit. Such a result would not just compromise the interests of justice, but shatter the interests of justice. WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that the Court grant the Motion for Leave to File Responses to Request for Admissions and Request for Production of Defendant James Francisco, and for such other and further relief to which Defendant is otherwise entitled. Respectfully submitted, THE AKERS FIRM, PLLC By: Brock C. Akers State Bar No. 00953250 3401 Allen Parkway, Suite 101 Houston, Texas 77019 Telephone: (713) 877-2500 Facsimile: 1-713-583-8662 Email - bca@akersfirm.com ATTORNEY FOR DEFENDANTS CERTIFICATE OF CONFERENCE A conference has been held on the merits of this Motion: XXX Plaintiff’s counsel is opposed to Defendants’ request under this Motion. CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing instrument has been served in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure on this 21st day of October 2020.