                                                     Electronically Filed
                                                     Supreme Court
                                                     SCWC-XX-XXXXXXX
                                                     13-MAY-2019
                                                     02:58 PM

          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                       RICHARD A. VILLAVER,
                 Petitioner/Plaintiff-Appellant,

                                 vs.

           DAVID KAWIKA SYLVA; HAWAII MEGA-COR, INC.,
           a Hawaiʻi domestic for-profit corporation,
                Respondents/Defendants-Appellees.
________________________________________________________________

                           SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-XX-XXXXXXX; CIVIL NO. 10-1-2445)

                            MAY 13, 2019

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

               OPINION OF THE COURT BY WILSON, J.

          In order to expedite the often extensive discovery

process, Hawaiʻi Rules of Civil Procedure (“HRCP”) Rule 36 allows

a party to a lawsuit to “serve upon any other party a written

request” for admissions.   Requesting that a party admit the

truth of matters of fact, or of the application of law to fact,

narrows the issues that must be proven at trial to those that
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are actually disputed, which fosters more efficient trials.

However, because a careless or inexpert litigant might

unintentionally admit an entire case by failing to respond to a

request for admissions, HRCP Rule 36(b) gives the trial court

the discretion to permit the withdrawal of the admissions on the

motion of an admitting party, so long as withdrawal will

facilitate presentation of the merits and will not prejudice the

party that obtained the admissions.        Courts should exercise this

discretion liberally in cases involving pro se litigants, which

invoke the judicial system’s interest in “promotion of equal

access to justice[.]”     Waltrip v. TS Enters., Inc., 140 Hawaiʻi

226, 239, 398 P.3d 815, 828 (2016).

            In this case, claims brought by pro se

Petitioner/Plaintiff-Appellant Richard A. Villaver (“Villaver”)

were dismissed based on his alleged failure to timely respond to

a request for admissions—notwithstanding his request that the

court provide him with an interpreter to help answer the

requests.   Villaver was denied the opportunity to exercise the

right to a jury trial on the basis of his alleged failure to

respond to a request for admissions that asked him to concede he

had no claim.   Villaver appeals from the judgment of the

Intermediate Court of Appeals (“ICA”), which affirmed the order

of the Circuit Court of the First Circuit (“circuit court”)

granting summary judgment against Villaver on the basis of his


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failure to timely respond to the request for admissions.              He

argues that the ICA erred in affirming the circuit court and

that his request for an interpreter should have been construed

by the circuit court as a request to withdraw the admissions and

file a late response.       We agree.

                               I.   BACKGROUND

A.   Complaint and Court-Annexed Arbitration

            On November 15, 2010, Villaver filed a complaint in

the circuit court, alleging that on August 20, 2008,

Respondent/Defendant-Appellee David Kawika Sylva (“Sylva”), an

employee of Respondent/Defendant-Appellee Hawaii Mega-Cor, Inc.

(“HMCI”), negligently drove an HMCI-owned van into Villaver’s

sedan while it was being operated by Villaver.            Villaver alleged

that as a result of Respondents’ negligence, “he suffered and

continues to suffer from damages including, but not limited to,

past and future medical and related expenses; past and future

pain and suffering; past and future loss of enjoyment of life;

[and] past and future serious emotional distress,” and that he

is entitled to compensation.

            The matter proceeded through a non-binding Court

Annexed Arbitration Program (“CAAP”), where Villaver was

represented by counsel.       The arbitrator found in favor of

Villaver, and awarded him $24,245.58 in damages:             $5,942.62 in




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medical expenses, $8,302.96 of lost wages, and $20,000 in

general damages, less $10,000 for the covered loss deductible.

B.   Post-CAAP Proceedings

            On August 31, 2012, Villaver appealed the CAAP award

and requested a trial de novo.         On March 13, 2013, Villaver’s

attorney filed a motion to continue the trial and to withdraw as

counsel.    Villaver told his attorney that he would seek

replacement legal counsel.        Respondents took no position on the

motion, and, after a hearing on April 3, 2013, the court granted

the first motion to continue trial and for withdrawal of

counsel, and set May 13, 2013 as the date for the trial setting

conference.     At the trial setting conference on May 13, 2013,

Villaver made his first pro se appearance and requested more

time to obtain counsel.       A new trial setting conference was set

for June 20, 2013.      On June 20, 2013, Villaver appeared pro se

for the second time, and trial was set for the week of June 23,

2014.    The discovery deadline had been set as April 24, 2014,

and the substantive motions deadline had been set as May 5,

2014.

            Approximately nine months after Villaver’s second pro

se appearance, on March 17, 2014, Respondents served Villaver

with a request for admissions via U.S. mail.            The request

contained seventy-seven statements.          Among those statements were

five statements that the circuit court later relied upon to


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grant summary judgment to Respondents on all claims.              The five

statements requested that Villaver take a position contrary to

the claims he successfully asserted before the CAAP arbitrator;

specifically, they requested that he admit it was his negligence

that caused the accident and that he incurred no injuries:

            16. You were reversing your car out of a parking stall at
            the time of the subject accident.

            . . . .

            18. Your negligence was the sole legal cause of the
            subject accident.

            . . . .

            70. You did not sustain any injuries as a result of the
            subject accident.

            . . . .

            76. You did not incur any general damages as a result of
            the subject accident.

            . . . .

            77. You did not incur any special damages as a result of
            the subject accident.[1]

            Less than a month after Villaver received the request

for admissions, on April 15, 2014, defense counsel received a

letter dated April 11, 2014 from Villaver’s wife.            Her letter

explained that Villaver received the request for admissions and

understood that the deadline to respond was April 18, but stated

that Villaver was unable to complete the paperwork.            According

to Villaver’s wife, Villaver became very stressed and
      1
            Other requests for admissions related not only to authentication
of documents and photographs, the extent of damages to Villaver’s vehicle,
and circumstances of the accident, but also to medical examinations,
treatment, diagnosis, and opinions which were clearly beyond Villaver’s
expertise.


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overwhelmed when he tried to answer the questions, had a

difficult time remembering the specifics of his treatments, and

did not understand English well.         She explained further that

Villaver did not have legal representation and that she could

not help him because she was suffering from depression and

anxiety.    She concluded her letter by explaining that they were

returning the paperwork to defense counsel uncompleted.

            On May 1, 2014, Respondents Sylva and HMCI filed a

motion for summary judgment.      Respondents argued that, under

HRCP Rule 36(a), because Villaver did not respond to the request

for admissions within thirty days of service of the request, the

matters contained within the request were admitted.           HRCP Rule

36(a) states that each matter for which an admission is

requested “is admitted unless, within 30 days after service of

the request, . . . the party to whom the request is directed

serves upon the party requesting the admission a written answer

or objection addressed to the matter, signed by the party or by

the party’s attorney[.]”      Based on Villaver’s admissions,

Respondents argued that Villaver’s claims against them failed as

a matter of law because he could not prove the elements of his

negligence claim.    Accordingly, Respondents requested summary

judgment.    The letter from Villaver’s wife to defense counsel

was attached to their motion as an exhibit.




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           Twenty days later, on May 21, 2014, the court held a

hearing on Respondents’ motion for summary judgment.2            At the

hearing, Villaver explained to the court that he could not

respond to the request for admissions because he was losing

memory of the event, and because he could not understand English

well.    He testified that he mostly spoke Visayan with his mother

and Filipino in his business.       He requested an interpreter to

help him answer the questions, saying, “if you can give me one

interpreter, that would help me for answer that question.

Because some English I don’t really understand. . . .             All I

see, I cannot read.     I cannot really understand.”          The court

noted that Villaver previously appeared in court and had not

indicated that he had any difficulty speaking or understanding

English; the court also elicited from Villaver that he had lived

in Hawaiʻi for forty-one years and that he had attended public

elementary, intermediate, and high school in Hawaiʻi.            The court

denied his request for an interpreter to assist him with the

written documents.     The court also observed that its June 2013

trial status-setting order contained various pre-trial

deadlines, and that there had been ample time for Villaver to

obtain new counsel or proceed pro se.




     2
           The Honorable Jeannette H. Castagnetti presided.


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          The court indicated to Villaver that it was inclined

to grant the summary judgment motion on the basis of his failure

to respond to the request for admissions:

          [THE COURT:] Mr. Villaver, so the defendants are
          requesting that this court grant summary judgment in their
          favor, which means finding that they were not negligent,
          not liable, and that the basis, the reason why they’re
          saying they should get judgment in their favor, along -- in
          addition to what’s been argued today, is that you did not
          respond to the requests for admissions that were sent to
          you; and under the rules, if you don’t respond within the
          time period, the admissions are -- the requests are deemed
          admitted. So not responding to their requests for
          admissions within 30 days or by 30 days, you have now
          admitted the requests that they had put in there, in
          particular -- well, there’s a number of them. I won’t go
          through them because they’re all contained in the motion.
          But, essentially, the admission being that you were
          negligent and Defendants were not.

                So I’m inclined to grant the motion, as the responses
          were not provided -- there was no response provided to the
          request for admissions. The rule requires a response.

At the conclusion of the hearing, the court deemed the

statements admitted, concluded that there would be no genuine

issue of material fact for trial, and granted Respondents’

motion for summary judgment.

          Approximately one month after the hearing, on June 26,

2014, the court’s order was filed.        In the order, the court

explained that “[b]ecause no written answer or objection

addressed to the matter and signed by the Plaintiff was served

with respect to Defendants’ Request for Admissions, Defendants’

Request for Admissions are therefore deemed admitted.”            The

court found that the following five admissions demonstrated that

there were no genuine issues as to any material fact:



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                  (a) Plaintiff was reversing his car out of a parking
            stall at the time of the subject accident (Request for
            Admissions No. 16);

                  (b) Plaintiff’s negligence was the sole legal cause
            of the subject accident (Request for Admissions No. 18);

                  (c) Plaintiff did not sustain any injuries as a
            result of the subject accident (Request for Admissions No.
            70);

                  (d) Plaintiff did not incur any general damages as a
            result of the subject accident (Request for Admissions No.
            76); and

                  (e) Plaintiff did not incur any special damages as a
            result of the subject accident (Request for Admissions No.
            77).

Based on these admitted facts, the court ordered that

Respondents’ motion for summary judgment be granted.             Judgment

was entered in favor of Respondents on June 23, 2014.              This

appeal followed.

C.   Appeal to the ICA

            On appeal, Villaver contended through retained counsel

that the circuit court erred in granting summary judgment.                He

argued that it should have allowed him to withdraw his

admissions under HRCP Rule 36(b).          HRCP Rule 36(b) provides

discretion to the court to permit the withdrawal of admissions

if doing so would facilitate presentation of the merits and

would not prejudice the party that obtained the admissions:

            [T]he court may permit withdrawal or amendment [of any
            admission] when the presentation of the merits of the
            action will be subserved thereby and the party who obtained
            the admission fails to satisfy the court that withdrawal or
            amendment will prejudice that party in maintaining his or
            her action or defense on the merits.




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Villaver’s opening brief requested that his “inarticulate pro

se” attempts to explain his failure to respond to the request

for admissions and the motion for summary judgment—namely, his

wife’s letter to defense counsel and his oral arguments about

his faulty memory and difficulty with the English language—be

construed as a motion to withdraw the admissions under HRCP Rule

36(b).   He argued that the circuit court’s failure to consider

his request for an interpreter as a motion to withdraw

admissions was an abuse of its discretion, and that the circuit

court erred in its decision to award summary judgment on the

basis of the statements he was deemed to have admitted.            He

contended that the court should have allowed him to withdraw his

admissions.   He argued further that the court should have given

him one last chance to obtain assistance of counsel and to

answer the request for admissions with such assistance.

          The ICA affirmed the circuit court’s order granting

summary judgment.    Villaver v. Sylva, No. CAAP-XX-XXXXXXX, 2017

WL 4534435, at *4 (App. Oct 11, 2017) (SDO).          In reaching this

decision, the ICA acknowledged that, where possible, the court

should “afford[] litigants the opportunity to have their cases

heard on the merits[.]”     Id. at *2 (citing Marvin v. Pflueger,

127 Hawaiʻi 490, 496, 280 P.3d 88, 94 (2012)).          However, the ICA

expressed concern that Villaver had not followed the rules of

discovery while representing himself, stating that “pro se


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plaintiffs are not exempt from discovery rules.”           Id.   It found

that Villaver’s wife’s letter was not a proper objection to the

request for admissions under HRCP Rule 36(a), and that

Villaver’s pro se in-court request for appointment of an

interpreter was not a request to withdraw admissions.            Id.

          The ICA cited the standard enunciated in HRCP Rule

36(b) to determine whether the circuit court properly exercised

its discretion to allow for the withdrawal of admissions:

          [I]n exercising its discretion the court must apply the
          test set forth in Rule 36(b): (1) whether the presentation
          of the merits will be subserved if the withdrawal of the
          admission is permitted and (2) whether the party who
          obtained the admission can satisfy the court that
          withdrawal will prejudice him in maintaining his action or
          defense on the merits.

Id. at *3 (internal quotation marks and ellipses omitted)

(quoting W.H. Shipman, Ltd. v. Hawaiian Holiday Macadamia Nut

Co., 8 Haw. App. 354, 366–67, 802 P.2d 1203, 1209–10 (1990)).

The ICA distinguished Villaver’s case from Shipman, wherein the

defendant was represented by counsel who filed untimely answers

to a request for admissions.      Id. (citing Shipman, 8 Haw. App.

at 366, 802 P.2d at 1209).      The defendant in Shipman

subsequently filed a motion to amend a discovery order which the

ICA construed to impliedly include a motion to withdraw

statements that had been previously deemed admitted and to

submit a late response.     8 Haw. App. at 367, 820 P.2d at 1210.

The ICA noted that in Shipman, defendant Hawaiian Holiday had




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belatedly answered Shipman’s interrogatories, produced requested

documents, and allowed Shipman to depose two of its officers;

additionally, there were two and a half months left before trial

when it did respond.     Villaver, 2017 WL 4534435, at *3 (citing

Shipman, 8 Haw. App. at 367, 820 P.2d at 1210).          The ICA found

it significant that at the time of his request for an

interpreter, Villaver had not moved forward with discovery in

any way, numerous discovery deadlines had passed, and there were

only a few weeks left until trial.        Id. at *4.    The ICA held

that the circuit court did not abuse its discretion in

concluding that Respondents would have been prejudiced in

maintaining their defense if withdrawal was permitted.            Id.

          Villaver filed an application for a writ of certiorari

with this court, which was accepted.

                       II.   STANDARDS OF REVIEW

          An abuse of discretion occurs if the trial court has

“clearly exceeded the bounds of reason or disregarded rules or

principles of law or practice to the substantial detriment of a

party litigant.”     Amfac, Inc. v. Waikiki Beachcomber Inv. Co.,

74 Haw. 85, 114, 839 P.2d 10, 26 (1992).

          “On appeal, the grant or denial of summary judgment is

reviewed de novo.”    Nuuanu Valley Ass’n v. City & Cty. of

Honolulu, 119 Hawaiʻi 90, 96, 194 P.3d 531, 537 (2008).

“[S]ummary judgment is appropriate if the pleadings,


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depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.”          Id. (quoting

Kahale v. City & Cty. Of Honolulu, 104 Hawaiʻi 341, 344, 90 P.3d

233, 236 (2004)).

                            III.   DISCUSSION

A. Villaver’s Request for an Interpreter Should Have Been
Deemed a Motion to Withdraw His Admissions.

          Although Villaver’s failure to respond to Respondents’

request for admissions provided a proper basis to find the

requests admitted under HRCP Rule 36(a), his request for an

interpreter should have been considered as a motion to withdraw

his admissions under HRCP Rule 36(b).

          HRCP Rule 36(a) allows one party to serve another a

written request for admissions.       A request for admissions must

set forth statements of fact, of opinion, or of the application

of law to fact, that concern issues in the case.           HRCP Rule

36(a).   The party in receipt of the request can answer or object

to each matter for which an admission is requested.           If the

party chooses to answer, the party must “specifically deny the

matter or set forth in detail the reasons why the answering

party cannot truthfully admit or deny the matter.”           Id.   If the

party denies a matter, the party must “fairly meet the substance



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of the requested admission[.]”        Id.   If the party gives lack of

information or knowledge as a reason for failure to admit or

deny a matter, the party must “state[] that the party has made

reasonable inquiry and that the information known or readily

obtainable by the party is insufficient to enable the party to

admit or deny.”     Id.   If the party chooses to object, it must

state the reasons for the objection.         Id.   An answer or

objection must be written and signed by the party or the party’s

attorney.    Id.   If the party neither answers nor objects to a

matter within thirty days after service of the request for

admissions, or within such shorter or longer time as the court

allows or the parties agree to in writing, then the matter is

admitted.    Id.

            As Villaver concedes, he failed to respond to the

request for admissions within thirty days of service as required

by HRCP Rule 36(a).3      The letter from Villaver’s wife to defense

counsel did not constitute an answer or objection to the request

for admissions pursuant to HRCP Rule 36(a), and, as such, did

not preclude the court from deeming the statements admitted

after thirty days.     In her letter, Villaver’s wife explained

that Villaver was unable to respond to the request for

admissions because, when he tried, he became overwhelmed,

     3
            Respondents served Villaver with the request for admissions on
March 17, 2014. Villaver’s wife sent her letter on April 11, 2014, and it
was received by defense counsel on April 15, 2014. The thirty day response
deadline expired on April 16, 2014.


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couldn’t remember facts, or couldn’t understand the questions.

She explained that they were returning the paperwork to defense

counsel uncompleted.     Her letter did not constitute an answer

because it was not signed by Villaver or by an attorney

representative, and thus did not comply with HRCP Rule 36(a).

Furthermore, the letter could not be construed as a motion to

withdraw admissions because the letter was sent and received

before the statements in the request for admissions were deemed

admitted.   However, the letter was relevant to the court’s

determination as to the degree to which Villaver sought to

comply with the request for admissions, and whether his request

for an interpreter warranted a continuance of the hearing on the

motion for summary judgment and withdrawal of his admissions.

            Because neither Villaver nor an attorney representing

him complied with the answer or objection requirements of HRCP

Rule 36(a) within thirty days of service of the request, the

statements in the request were properly deemed admitted; we

therefore consider Villaver’s contention that the circuit court

erred by failing to consider his request for an interpreter as a

motion to withdraw his admissions pursuant to HRCP Rule 36(b).

HRCP Rule 36(b) provides that the court may allow any matter

admitted under HRCP Rule 36(a) to be withdrawn upon an

appropriate motion:     “Any matter admitted under this rule is




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conclusively established unless the court on motion permits

withdrawal or amendment of the admission.”

           Villaver’s oral request for an interpreter to help him

answer the admissions was not a formal motion to withdraw

admissions.   But his failure to observe formalities did not

preclude the court from permitting him to withdraw his

admissions, as Hawaiʻi courts have considered untimely responses

to a request for admissions as constituting an informal motion

to withdraw admissions.     One such example is In re Trade Wind

Tours of Hawaii, Inc., wherein the ICA addressed the director of

taxation’s untimely filing of answers to a request for

admissions.   6 Haw. App. 260, 264, 718 P.2d 1122, 1125 (1986).

The ICA held that the tax appeal court “did not abuse its

discretion in deeming the Director’s admissions to have been

withdrawn upon the filing of the answers.”         Id. at 264, 718 P.2d

at 1126.   Similarly, in Shipman, the ICA held that late

responses to a request for admissions could be considered a

request for withdrawal of the admissions.         8 Haw. App. at 366,

802 P.2d at 1209.    In that case, the circuit court entered an

order deeming admitted the statements in the request for

admissions served by Shipman on Hawaiian Holiday because

Hawaiian Holiday had not responded before the HRCP Rule 36(a)

thirty-day deadline.     Id. at 365, 802 P.2d at 1209.        The court

subsequently denied Hawaiian Holiday’s motion to amend an order


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to compel discovery which provided that all matters covered by

the request for admissions were deemed admitted.           Id. at 358-59,

802 P.2d at 1206.    The ICA held that Hawaiian Holiday’s motion

to amend the order deeming the matters in the request admitted,

made after late service of its response to the request, was

“impliedly a motion to withdraw the Rule 36(a) automatic

admissions.”   Id. at 366, 802 P.2d at 1209.         The ICA held that

“the allowance of a late filing of a response to a request for

admissions by the court ‘is the equivalent of allowing a party

to withdraw admissions made by operation of Rule 36(a).’”             Id.

(quoting Trade Wind Tours, 6 Haw. App. at 264, 718 P.2d at

1126); see also Bergemann v. United States, 820 F.2d 1117, 1121

(10th Cir. 1987) (finding that “both the response to [the

plaintiff’s] motion for summary judgment and the recorded pre-

trial hearings in this case were, in essence, motions to

withdraw the admissions”); Warren v. Int’l Bhd. of Teamsters,

Chauffers, Warehousemen & Helpers of Am., 544 F.2d 334, 339 (8th

Cir. 1976) (“To allow a late filing of answers to a request for

admissions is the equivalent of allowing a party to withdraw

admissions made by operation of Rule 36(a).” (internal

parentheticals omitted) (quoting Pleasant Hill Bank v. United

States, 60 F.R.D. 1, 3 (W.D. Mo. 1973))).




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             In the present case, when Villaver made his request

for an interpreter, the circumstances constituted a request to

the court for permission to withdraw his admissions and file a

late response to the request for admissions.          His wife had

indicated that he needed a lawyer to help him complete the

paperwork sent to him by Respondents.        Villaver requested the

interpreter for the purpose of filing his response to the

request for admissions:     “So if I -- if -- if I need -- if you

can give me one interpreter, that would help me for answer that

question.”    The circuit court recognized that Villaver’s purpose

in asking for an interpreter was in part to file a late response

to the request for admissions, stating “I’m inclined at this

point to . . . deny . . . [Villaver’s] request for an

interpreter to assist him with the written documents that he’s

received from the other side.”       The request to file a late

response to a request for admission was the equivalent of a

request to withdraw admissions.       See Trade Wind Tours, 6 Haw.

App. at 264, 718 P.2d at 1126.

             Villaver’s status as a pro se litigant supports

construing his request for an interpreter as a request to

withdraw his admissions and file a late response.           In the

context of pro se pleadings, we have explained that “[a]

fundamental tenet of Hawaiʻi law is that ‘[p]leadings prepared by

pro se litigants should be interpreted liberally[,]’” and that


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“[t]he underpinnings of this tenet rest on the promotion of

equal access to justice[.]”      Waltrip, 140 Hawaiʻi at 239, 398

P.3d at 828 (quoting Dupree v. Hiraga, 121 Hawaiʻi 297, 314, 219

P.3d 1084, 1101 (2009)).      In Waltrip, we favorably noted that

“[f]ederal courts have extended this ‘liberality doctrine’ to

include pro se motions in certain scenarios[,]” and held that

liberal construction of motions was appropriate in workers’

compensation cases, as they typically provide “the only recovery

available for an employee who is injured at work[.]”           Id.

Similarly, Villaver’s pro se request for an interpreter at the

hearing should have been interpreted liberally as a request to

withdraw his admissions and file a late response, particularly

since a more restrictive interpretation would have extinguished

his only opportunity to recover on his negligence claim.

B. The Circuit Court Abused Its Discretion by Failing to Apply
the Two Factors of Rule 36(b) to Villaver’s Informal Motion to
Withdraw Admissions and File a Late Response.

          To determine whether to permit Villaver to withdraw

his admissions, the circuit court was required to consider the

two factors enumerated in HRCP Rule 36(b):         “(1) whether ‘the

presentation of the merits will be subserved’ if the withdrawal

of the admission is permitted and (2) whether the party who

obtained the admission can ‘satisfy the court that withdrawal

. . . will prejudice him in maintaining his action or defense on

the merits.’”   Shipman, 8 Haw. App. at 367, 802 P.2d at 1209–10


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(quoting HRCP Rule 36(b)).      When both factors are met—that is,

when withdrawal would promote presentation of the merits but

would not prejudice the party that obtained the admissions—the

court may permit withdrawal.

          The circuit court in the present case did not consider

either of the two HRCP Rule 36(b) factors.         With respect to the

first factor, the court was required to consider whether

“upholding the admissions would practically eliminate any

presentation of the merits of the case.”         Conlon v. United

States, 474 F.3d 616, 622 (9th Cir. 2007) (quoting Hadley v.

United States, 45 F.3d 1345, 1348 (9th Cir. 1995)).           Thus, the

first factor weighed in favor of permitting Villaver to withdraw

his admissions; otherwise, the admissions necessarily required

the court to grant summary judgment and precluded a trial on the

merits.   Denial of the request to withdraw admissions did not

subserve the presentation of the merits.

          The circuit court also did not consider the second

factor, whether withdrawal would prejudice the party that

obtained the admission.     Prejudice under HRCP Rule 36(b) does

not contemplate the prejudice that the party who obtained the

admissions will incur merely because the admissions are no

longer deemed admitted; such a standard would render the

withdrawal of admissions nearly impossible.          Instead, prejudice

in this context deals with the difficulty to the party who


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obtained the admissions from proving its case once the

admissions are withdrawn:

           The prejudice contemplated by the Rule is not simply that
           the party who initially obtained the admission will now
           have to convince the fact finder of its truth. Rather, it
           relates to the difficulty a party may face in proving its
           case, e.g., caused by the unavailability of key witnesses,
           because of the sudden need to obtain evidence with respect
           to the questions previously answered by the admissions.

Perez v. Miami-Dade Cty., 297 F.3d 1255, 1266 (11th Cir. 2002)

(quoting Smith v. First Nat. Bank of Atlanta, 837 F.2d 1575,

1578 (11th Cir. 1988)); see also Conlon, 474 F.3d at 624 (“[W]e

are reluctant to conclude that a lack of discovery, without

more, constitutes prejudice.        The district court could have

reopened the discovery period . . . and prejudice must relate to

the difficulty a party may face in proving its case at

trial[.]”).    Thus, the party that has obtained the admissions

must show that withdrawal of the admissions will impact its

ability to prove the facts previously admitted.

           Here, the circuit court did not address, nor did it

ask the parties to address, whether allowing Villaver’s

withdrawal would unfairly prejudice Respondents.4           Thus,

Respondents, “the part[ies] who obtained the admissions[,]

fail[ed] to satisfy the court that withdrawal or amendment

[would] prejudice that party in maintaining his or her action or

      4
             The court did emphasize that it would not postpone the trial
further, particularly given that Villaver knew about the trial deadlines.
However, the court did not consider how the expiration of the trial deadlines
in conjunction with allowing Villaver to file a late response would prejudice
Respondents.


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defense on the merits.”       HRCP Rule 36(b).     The record does not

indicate that Respondents would have suffered prejudice to their

case if the admissions were permitted to be withdrawn; to the

contrary, it indicates they had adequate opportunity to, and

did, develop their case without the aid of the admissions, and

that withdrawal of the admissions would not have created a need

for new evidence otherwise addressed by the admissions.

Respondents were clearly on notice throughout the case regarding

Villaver’s allegations of negligence and the damages he claimed

to have suffered.     Those allegations were addressed in the CAAP

process.   Respondents conducted over a year and a half of

discovery well before the statements in the request for

admissions were deemed admitted.5

           The circumstances of this case exemplify a disfavored

use of HRCP Rule 36, one in which proponents submit a request

for admissions “with the wild-eyed hope that the other side will

fail to answer and therefore admit essential elements” of his

case.    Perez, 297 F.3d at 1268; see also Bergemann, 820 F.2d at

1121; cf. Cty. of Hawaiʻi v. Ala Loop Homeowners, 123 Hawaiʻi

391, 423, 235 P.3d 1103, 1135 (2010) (“Defaults are generally


     5
            The record indicates that by April 2014, Respondents had
identified at least thirty-five lay witnesses and eighteen expert witnesses
they intended to call to testify at trial, and had served subpoenas duces
tecum to State Farm Insurance Companies, Workstar Injury Recovery Center, and
Claudette H. Ozoa, Ph.D. The request for admissions itself indicates that
Respondents had developed various theories under which they would avoid
liability to Villaver.


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disfavored.”), abrogated on other grounds by Tax Found. of

Hawaiʻi v. State, No. SCAP-XX-XXXXXXX, 2019 WL 1292286 (Haw. Mar.

21, 2019).    The circuit court should have considered Villaver’s

informal motion to withdraw his admissions under the two factors

of HRCP Rule 36(b) relating to presentation of the merits and

prejudice to the non-admitting party, both of which favored

withdrawal.    In failing to grant the motion, the court abused

its discretion.

                            IV.   CONCLUSION

          Villaver’s pro se request to obtain an interpreter

before the court entered summary judgment against him should

have been considered a motion to withdraw his admissions and

continue the hearing on the motion for summary judgment.            The

court’s discretion in ruling on the motion to withdraw

admissions under HRCP Rule 36(b) was bound by the requirement

that it consider whether the merits of the case would be served

by withdrawal and whether the party obtaining the admissions

would be prejudiced by the withdrawal.         It was an abuse of

discretion to deny withdrawal of Villaver’s admissions.            Absent

the admissions, the record contains genuine issues of material

fact that preclude summary judgment against Villaver.

          For the foregoing reasons, we vacate the ICA’s

November 22, 2017 judgment on appeal and the circuit court’s

June 26, 2014 order granting summary judgment and July 28, 2014


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judgment and remand the case to the Circuit Court of the First

Circuit for further proceedings consistent with this opinion.

Charles H. Brower                 /s/ Mark E. Recktenwald
for Petitioner
                                  /s/ Paula A. Nakayama
J. Patrick Gallagher
Erin I. Macdonald                 /s/ Sabrina S. McKenna
for Respondents
                                  /s/ Richard W. Pollack

                                  /s/ Michael D. Wilson




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