Admissions vs stipulations in telephone consumer protection act cases
- Peter Schneider
- Sep 20, 2024
- 8 min read
Updated: Jun 16
Fundamentally, a lawsuit is either a dispute of facts, a dispute of law, or both. When both sides want to narrow down factual disputes, they can do so through federal rule of civil procedure 36 requests for admissions (RFAs), or they can stipulate to certain facts. What is the difference? Which is better?
The TLDR version is that stipulations are better. RFAs seem powerful because in the jury instructions will be something like this (pulled from the 9th circuit model instruction 2.12):
INSTRUCTION NO. XX
Use of Requests for Admission
Evidence was presented to you in the form of admissions to the truth of certain facts. These admissions were given in writing before the trial, in response to requests that were
submitted under established court procedures. You must treat these facts as having been proved.
Their weakness stems from the fact they can be withdrawn too easily. See FRCP 36(b) "A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended." Have some key admissions you are relying on going into trial? The judge can just hand waive them away. The effort needed depends on your state court or federal district. The ninth circuit has the most respect for admissions and it isn't that much. This brief is a good overview of 9th circuit law. In this case the defendants blew off responding to RFAs within 30 days and FRCP 36(a)(3) says: "A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney".
This plaintiff started out in the strongest position - he reminded the defendants multiple times about the deemed admissions and they told him in writing to stop bothering them about them. The court ultimately allowed the defendants to withdraw dozens of the deemed admissions.
Barton's mistake in the above proceeding was bringing the deemed admissions to the court's attention prior to a signed pretrial order, and frankly, he should have just waited until trial and then used them. In the ninth circuit see Conlon v. U.S., 474 F.3d 616, 617 (9th Cir. 2007). I asked him why he didn't and he said he wasn't sure if the deemed admissions had to be in the pretrial order to be used at trial. They don't. Barton didn't need to inform the other side about what admissions he intended to use at trail prior to using them.
Why are stipulations better? Because they tie the judge's hands. In football each side has 11 players and the fans in the stands are commonly referred to as the "12th man" because they can heavily influence the outcome. In court the judge often will be one side's 12th man, giving every advantage possible to one side. Stipulations make the judge's 12th man role much harder.
Lets look at cases starting with United States v. Moreta, 19-cr-307 (SHS), (S.D.N.Y. Oct. 18, 2021)
The binding nature of stipulations "serve[s] both judicial economy and the convenience of the parties." CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th Cir. 1999). "Allowing parties to easily set aside or modify stipulations would defeat this purpose, wasting judicial resources and undermining future confidence in such agreements."
This case ties the judge's hands. Don't be tricky in obtaining a stipulation, and the judge has to honor it or abuse his power. CDN Inc. v. Kapes, 197 F.3d 1256, 1257 (9th Cir. 1999)
Because stipulations serve both judicial economy and the convenience of the parties, courts will enforce them absent indications of involuntary or uninformed consent. See United States v. McGregor, 529 F.2d 928, 931 (9th Cir. 1976).
Should stipulations be challenged later, the test is were they entered into voluntarily. U.S. v. Molina, 596 F.3d 1166, 1167 (9th Cir. 2010)
In this case, there is no evidence that the stipulation was involuntary. The defendant had the advice of counsel prior to signing the stipulation and had several days to consider whether to sign the stipulation. The stipulation, entitled "Stipulation and Joint Motion for Release of Material Witnesses," clearly stated that the hearsay evidence of the material witnesses would be admissible in any hearing or trial in the defendant's matter. The government's letter accompanying the stipulation also clearly stated that the purpose of the stipulation was to allow the government to admit the evidence in the event that the defendant accepted the plea offer and later changed his mind after the witnesses had been released. Armed with this knowledge, the defendant later withdrew his guilty plea, having caused the change in circumstances himself. Based on all of the circumstances, there is no evidence that the stipulation was not voluntarily entered into by the defendant. Thus, because there is no evidence of involuntariness, the district court properly admitted the hearsay evidence pursuant to the signed stipulation.
Ditto. United States v. Zepeda, 738 F.3d 201, (9th Cir. 2013)
“The test regarding the validity of a stipulation is voluntariness.” United States v. Molina, 596 F.3d 1166, 1168–69 (9th Cir.2010). We have previously held that “ ‘[s]tipulations freely and voluntarily entered into in criminal trials are as binding and enforceable as those entered into in civil actions.’ ” Id. at 1169 (quoting United States v. Technic Servs., 314 F.3d 1031, 1045 (9th Cir.2002) (alteration in original)). “ ‘[S]tipulations serve both judicial economy and the convenience of the parties, [and] courts will enforce them absent indications of involuntary or uninformed consent.’ ” Id. (quoting CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th Cir.1999) (alterations in original)). “A ‘defendant who has stipulated to the admission of evidence cannot later complain about its admissibility’ unless he can show that the stipulation was involuntary.” Id. (quoting Technic Servs., 314 F.3d at 1045).
They prevent appeals on the same issues. Merritt v. Arizona, No. 21-15833, (9th Cir. Aug. 16, 2022)
"A stipulation or the withdrawal of an objection is tantamount to a waiver of an issue for appeal."
Attorneys may come and go, stipulations don't. See Lema v. Comfort Inn, CASE NO. 1:10-cv-00362-SMS, 2 (E.D. Cal. Jan. 11, 2012).
"Defendants' attorney protests that the stipulation does not apply because he was "not privy to those stipulations." (Doc. 46 at 8.) His objection is ridiculous. An attorney is not a party to a stipulation: his clients are. Logically, substitution of a party's attorney after that party has agreed to a stipulation cannot, of itself, invalidate the stipulation. If it did, stipulations would be worthless since any party could later obviate its stipulation for any reason simply by discharging its attorney. Nor may a party claim inadvertence to accommodate the different litigation strategy of a subsequent attorney."
Indie Caps LLC v. Ackerman, No. CV-20-01970-PHX-DJH, (D. Ariz. Aug. 14, 2023)
“A stipulation should be interpreted as to carry out the parties' intentions.” United States v. Bautista, 2018 WL 6069640, at *8 (D. Ariz. Oct. 29, 2018), report and recommendation adopted as modified, 2018 WL 6067284 (D. Ariz. Nov. 20, 2018) (citing United States v. Petty, 80 F.3d 1384, 1387 (9th Cir. 1996)).
Guerrero v. Deane, 1:09cv1313 (JCC/TRJ), (E.D. Va. Sep. 4, 2012)
Black's Law Dictionary provides the relevant definition of "stipulation" as "[a] voluntary agreement between opposing parties concerning some relevant point; esp. an agreement relating to a proceeding, made by attorneys representing adverse parties to the proceeding." Black's Law Dictionary 1455 (8th ed. 2004). "The primary purpose of entering into a stipulation is to 'dispense with proof over matters not in issue, thereby promoting judicial economy at the convenience of the parties.'" United States v. Lentz, 419 F. Supp.2d 843, 844 (E.D. Va. 2006)
At the Washington State level, see case Coleman v. Altman, 7 Wn. App. 80. It is not a telemarketing case, but one where a vehicle struck a pedestrian. Ms. Colman claimed she was within the boundaries of an unmarked crosswalk, and Mr. Altman claimed she wasn't. The trial court ultimately ruled she wasn't.
Mr. Altman was served a admission that put her outside of the crosswalk, due to his lawyer's negligence it wasn't denied. The trial court didn't let Mr. Altman out of the admission. On appeal, Mr. Altman argued that the trial court erred in not allowing him to withdraw the admission. The admission itself was poorly asked:
If we followed the Colemans' urging [to uphold the RFA she propounded], a factual dispute would arise since the Altmans by failing to respond to the request for admission would admit that Mrs. Coleman was in one place, while Mrs. Coleman [who propounded the RFA], in agreement with the undisputed evidence, argues that she was in another place. Whether Mrs. Coleman was within the statutory definition of an unmarked crosswalk when she was struck by the Altman vehicle is the ultimate question in issue. The central dispute then is over whether the point of impact was within the boundaries of an unmarked crosswalk
The admission was poorly asked because 1) Ms. Coleman own RFA would go against the facts Ms. Coleman was pushing and 2) courts don't like it when the ultimate facts of a case are resolved on admissions.
The appeals court went on to find that Ms. Coleman had not really relied on the RFA:
The Colemans were not and could not have been misled into believing, by the failure of the Altmans to answer the request for admission, that the Altmans would argue in trial that Mrs. Coleman was walking in a southeasterly to northwesterly direction to the north sidewalk on Second Street. The Colemans have not relied on the supposed admission and there has been no prejudice to them by the failure to answer.
This case illustrates the proper use but also the potential danger of admissions. In the Coleman lawsuit it appeared that Mr. Altman wasn't playing games in ignoring the RFA, and that the RFA was foolishly propounded in contrary to the evidence establishing where Ms. Coleman was struck. But in your lawsuit you might now have such clear evidence and you might try to use RFAs to separate the factual disputes from the agreed facts:
The purpose of rule 36 is to eliminate from controversy matters which will not be disputed. It was not designed to discover facts but to circumscribe contested factual issues in a case so that issues which are disputed may be clearly and succinctly presented to the trier of facts.
So what if your opponent at first admits facts they believe don't damage them, but later they decide to reverse course with a different story? RFAs give a party a lot of leeway to suddenly change their story later and withdraw the admissions.
If you are in a telemarketing lawsuit and you can get the other side to narrow down factual issues, try to do so through stipulations. There is a much smaller chance the other side can successfully decide to change the facts on you later. This is a set of stipulations that won't go away easily even if they become inconvenient to the defendants later.
If you do use admissions, the best way is when admissions have a clear evidentiary basis.
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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