     Case: 19-60403      Document: 00515276566         Page: 1    Date Filed: 01/17/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 19-60403                        January 17, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
CHARLES STROUD, SR., individually and as wrongful death representative
of Charles Stroud, Jr.,

              Plaintiff - Appellant

v.

WALMART, INCORPORATED, both Delaware Corporations, doing business
as Walmart Stores, Incorporated,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:18-CV-110


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Charles Stroud, Sr. appeals the entry of summary judgment on his
claims for negligence and products liability against Wal-Mart. Stroud alleges
that his fifteen-year-old son (“Decedent”) died after he intentionally inhaled
Ultra Duster—a keyboard cleaner an adult relative purchased for him from


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 19-60403


Wal-Mart. Stroud’s claims are for defective design and failure to warn under
the Mississippi Products Liability Act and negligence in designing, testing,
manufacturing, marketing, and selling Ultra Duster.
      The district court granted summary judgment to Wal-Mart on three
separate grounds, finding that (1) Stroud’s admissions conclusively stated that
Wal-Mart is not liable for Decedent’s death, (2) Stroud lacked expert testimony
necessary to prevail on a Mississippi Products Liability Act claim, and (3)
Stroud failed to demonstrate a genuine dispute of material fact as to whether
Wal-Mart proximately caused Decedent’s death. Stroud appeals to this court.
We affirm.
      This court reviews the grant of summary judgment de novo, applying the
same standard as the district court. QBE Ins. Corp. v. Brown & Mitchell, Inc.,
591 F.3d 439, 442 (5th Cir. 2009). The district court’s underlying decision to
deny Stroud’s motion to withdraw admissions is reviewed for abuse of
discretion. See Dukes v. S.C. Ins. Co., 770 F.2d 545, 549 (5th Cir. 1985).
      The district court first entered summary judgment for Wal-Mart based
on Stroud’s default admissions, which encompassed the totality of his claims.
Stroud argues that the district court abused its discretion by denying his
motion to withdraw or amend these admissions. The Federal Rules state 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.”
FED. R. CIV. P. 36(a)(3). A party can move the court to withdraw or amend an
admission. FED. R. CIV. P. 36(b). Upon such motion, a court may permit
withdrawal or amendment if it promotes the presentation of the merits and if
the court is not persuaded that such an allowance prejudices the opposing
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                                No. 19-60403


party in maintaining or defending the action on the merits. In re Carney, 258
F.3d 415, 419 (5th Cir. 2001). “Even when these two factors are established, a
district court still has discretion to deny a request for leave to withdraw or
amend an admission.” Id.
      Here, on July 18, 2018, Wal-Mart requested admissions on fifteen
different statements, including the statement that “Wal-Mart is not liable to
Plaintiff for Decedent’s death.” But Stroud failed to respond by the August 18
deadline. On October 10, Wal-Mart filed a Motion to Compel. The court
ordered briefing on the Motion to Compel, but Stroud again failed to respond.
The court then entered a Show Cause Order, requiring Stroud to show cause
why it should not dismiss the case. Only after the Show Cause Order did
Stroud respond to the request for admissions. On October 23, Wal-Mart moved
to strike these responses as untimely. Stroud failed to respond to the motion,
and the court granted the motion as unopposed. On January 5, 2019, the day
after discovery closed, Stroud filed a Motion to Withdraw or Amend
Admissions. The district court found that withdrawing the admissions after
the close of discovery would unfairly prejudice Wal-Mart. Additionally, the
district court noted that the unexplained delay in response merited denying
the Motion, even if prejudice was not shown.
      The district court did not abuse its discretion when denying Stroud’s
Motion. The district court found Wal-Mart would have been prejudiced by
allowing Stroud to amend his admissions after the various deadlines passed.
Also, the district court correctly noted that Stroud’s dilatory manner in
responding to deadlines and prosecuting the case was sufficient to prevent the
admissions from being withdrawn. See Williams v. Wells Fargo Bank, NA, 560
Fed. App’x 233, 244 (5th Cir. 2014) (stating that a party could be prohibited
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                                No. 19-60403


from withdrawing their admissions when they were not diligent in seeking
relief); Le v. Cheesecake Factory Rests., Inc., 2007 WL 715260, at *3 (5th Cir.
Mar. 6, 2007) (holding that a district court did not abuse its discretion in
denying a motion to withdraw admissions when a party did not seek
withdrawal of a default admission until two days before discovery closed and
offered no explanation for the delay). Because the district court did not abuse
its discretion in denying Stroud’s admissions and because the admissions
encompass the totality of Stroud’s claims, the district court properly granted
summary judgment to Wal-Mart.
      We conclude that the district court did not err in granting summary
judgment based on Stroud’s admissions.        We need not review the other
independent grounds on which the district court granted summary judgment.
The district court’s grant of summary judgment is affirmed.




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