Nix v. New Mexico Department of Public Safety et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
COLLEEN NIX,
Plaintiff,
v. 	No. 1:24-cv-00691-KG-LF
NEW MEXICO DEPARTMENT OF PUBLIC
SAFETY, NEW MEXICO STATE POLICE
and KEVIN B. KEINER,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the opposed motion of defendants New Mexico
Department of Public Safety and New Mexico State Police (collectively, “DPS”) to withdraw
admissions made in response to plaintiff Colleen Nix’s first set of discovery (Doc. 53). Having
reviewed the parties’ submissions and the law, and having heard the argument of counsel, the
Court grants the motion.
BACKGROUND
Ms. Nix first filed this action against defendants Kevin Keiner, New Mexico Department
of Public Safety, and New Mexico State Police in the First Judicial District Court, County of
Santa Fe on June 5, 2024; defendants removed the case to federal court on July 8, 2024. Doc. 1
at 1–2. Ms. Nix asserts that Mr. Keiner, who was then employed as a New Mexico State Police
Officer, raped her, and she has brought claims against him for battery, negligence, intentional
infliction of emotional distress and outrage, and civil rights violations under 42 U.S.C. § 1982.
Id. at 6–11. Ms. Nix also sued DPS for violations of the New Mexico Civil Rights Act
(“NMCRA”). Id. at 9–10.
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The Court issued a scheduling order setting discovery deadlines after a Rule 16 Initial
Scheduling Conference on November 20, 2024. See Doc. 18. On July 28, 2025, the Court
granted an extension of the discovery deadlines, and discovery terminated on October 31, 2025.
Doc. 68 at 1. During the discovery process, plaintiff served her First Set of Discovery to DPS on
January 9, 2025, see Doc. 23, which included requests for admissions (“RFAs”) pursuant to
Federal Rule of Civil Procedure 36, Doc. 53 at 3. RFA Number 2 stated: “Defendant Kevin
Keiner was at all pertinent times hereto an employee and officer with New Mexico State Police,
and at all times relevant hereto, was acting under the color of law.” Doc. 67-3 at 2. RFA
Number 3 stated: “At all times relevant hereto, Kevin Keiner was acting under the color of law.”
Id. On February 10, 2025, DPS served its responses to Plaintiff’s First Set of Discovery,
including affirmative admissions to RFAs 2 and 3. Doc. 53 at 3.
On July 3, 2025, DPS filed the present motion to withdraw its admissions to RFAs 2 and
3 and for leave to serve supplemental responses denying those RFAs. Id. at 8. DPS argues that
it should be permitted to withdraw its admissions because doing so would promote presentation
of the merits of the case and because the withdrawal will not prejudice Ms. Nix. Id. at 3–8; Doc.
71 at 1–3. Ms. Nix opposes the motion, arguing that allowing the admissions to stand still will
require the presentation of the merits of the case, but allowing withdrawal will prejudice her.
Doc. 67 at 3–8. The Court held a hearing on the motion on November 7, 2025, where counsel
for all parties appeared and presented arguments. See Doc. 96.
ANALYSIS
Federal Rule of Civil Procedure 36(b) provides that a matter admitted in response to a
request for admission “is conclusively established unless the court, on motion, permits the
admission to be withdrawn or amended.” FED. R. C IV. P. 36(b). A court “may” allow
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withdrawal or amendment “if it would promote the presentation of the merits of the action and if
the court is not persuaded that it would prejudice the requesting party in maintaining or
defending the action on the merits.” Id. The Advisory Committee Notes for Rule 36 explain that
subsection (b) “emphasizes the importance of having the action resolved on the merits, while at
the same time assuring each party that justified reliance on an admission in preparation for trial
will not operate to his prejudice.” FED. R. C IV. P. 36(b) advisory committee’s note to 1970
amendment.
The Tenth Circuit has interpreted the language of Rule 36(b) to permit withdrawal or
amendment of an admission should a two-prong test be satisfied: “when [1] the presentation of
the merits of the action will be subserved thereby and [2] the party who obtained the admission
fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining
the action or defense on the merits.” Raiser v. Utah Cnty., 409 F.3d 1243, 1246 (10th Cir. 2005)
(quoting FED. R. C IV. P. 36(b)) (alteration in original). For the following reasons, the Court finds
(1) that DPS has demonstrated that withdrawal of the admissions will promote presentation of
the case on the merits, and (2) that Ms. Nix has failed to demonstrate that she will be prejudiced
by the withdrawal.
I. 	Withdrawal of the admissions will promote presentation of the merits of the case
because the admissions concede a core element of Ms. Nix’s cause of action
against DPS.
The first prong of the Rule 36(b) test requires a court to analyze whether withdrawal or
amendment of the admission at issue will “subserve” presentation of the merits of the action.
Raiser, 409 F.3d at 1246. The Tenth Circuit has found this prong satisfied where the admission
concedes core elements of the plaintiff’s case. See id. (finding that “allowing the admissions to
be withdrawn would subserve the presentation of the merits of the action” where “the admissions
at issue conceded the core elements of [the plaintiff]’s case”).
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DPS argues that this prong is satisfied because the admissions at issue concede a core
element of Ms. Nix’s civil rights case against it: that Keiner was acting under color of state law.
Whether an individual was acting under color of state law is an element of both a § 1983 claim
and a claim under the NMCRA.1 West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under
§ 1983, a plaintiff . . . must show that the alleged deprivation was committed by a person acting
under color of state law.”); N.M. S TAT. ANN . § 41-4A-3(B) (specifying that a cause of action
may be brought against “a public body or person acting on behalf of, under color of or within the
course and scope of the authority of a public body”) (emphasis added). The parties agree that
RFAs 2 and 3 sought an admission that Mr. Keiner was acting under color of state law at the
time relevant to Ms. Nix’s claims, see Doc. 53 at 3; Doc. 67 at 1–2, but Ms. Nix raises several
arguments to contest that DPS satisfied this first prong.
First, Ms. Nix argues that withdrawal or amendment will not foreclose presentation of the
merits of the case because there remain other issues to be decided at trial, including whether Ms.
Nix was capable of consenting to sex, whether she did in fact consent, and damages based on
breach of duty. Doc. 67 at 5. Ms. Nix argues that “presentation of the merits of the case” refers
to presentation of the case as a whole rather than presentation of the merits of an individual claim
or an element of a claim. Doc. 67 at 4. Ms. Nix emphasizes a sentence from another case in this
district that itself cites a Tenth Circuit opinion: “a court may allow the withdrawal of admissions
if upholding the admissions would practically eliminate any presentation of the merits of the
case.” United States v. 316 75th Street SW Albuquerque, NM 87121, No. 1:21-cv-00549-KWR-
KK, 2023 WL 6121917, at *1 (D.N.M. Sept. 19, 2023) (emphasis added) (citing Raiser, 409
1 DPS cites both the § 1983 and NMCRA claims, Doc. 53 at 5, but Ms. Nix’s complaint only
raises NMCRA claims against DPS while raising the § 1983 claims only against Mr. Keiner. See
Doc. 1 at 8–10.
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F.3d at 1246). The Tenth Circuit in Raiser quoted that phrase from an Eleventh Circuit case but
did not elaborate further. 409 F.3d at 1256 (quoting Perez v. Miami-Dade Cnty., 297 F.3d 1255,
1266 (11th Cir. 2002)). Though Raiser supports the proposition that the first prong of the 36(b)
test is easily met if admissions concede core elements of all of a plaintiff’s claims, no description
was provided of the admissions at issue in Raiser, nor was there an explicit statement that
withdrawal must foreclose litigation of all claims in an action for the first prong to be satisfied.
See id.
Indeed, another Tenth Circuit case compels the opposite conclusion. In Bergemann v.
United States, the plaintiff sued two corporations and the federal government after her partner
was killed in a mid-air plane collision. 820 F.2d 1117, 1117 (10th Cir. 1987). Among several
issues to be decided in the case was whether the plaintiff was the common law wife of the
deceased. Id. at 1117–18. During discovery, the United States failed to answer a request for
admission that the plaintiff was in a common law marriage with the deceased, and the plaintiff
moved for default and partial summary judgment against the United States on that issue. Id. at
1118. The Tenth Circuit construed the government’s opposition to the motion for summary
judgment as a motion to withdraw its deemed admission and found that the withdrawal
“promotes a decision on the merits” even though the withdrawal related to a single issue in a
multi-issue case. Id. at 1120–21. The Tenth Circuit’s affirmation of that withdrawal refutes Ms.
Nix’s claim that the first prong of the Rule 36(b) test can be satisfied only where an admission
will foreclose presentation of the merits of her entire claim against DPS.
Additionally, Ms. Nix did not argue in her response that the admissions do not concede a
core element of her claim against DPS; indeed, her argument that she still must present evidence
on the other elements of her claim against DPS seems to assume that the admissions concede a
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core element of her NMCRA claim. See Doc. 67 at 5. Nonetheless, at the hearing on the
motion, counsel for Ms. Nix argued that whether Mr. Keiner was acting under color of law is not
a core element of her NMCRA claim. Doc. 96 ¶ VI(a). The NMCRA specifically provides that
[a] person who claims to have suffered a deprivation of any rights, privileges or
immunities pursuant to the bill of rights of the constitution of New Mexico due to
acts or omissions of a public body or person acting on behalf of, under color of or
within the course and scope of the authority of a public body may maintain an
action to establish liability and recover actual damages and equitable or injunctive
relief in any New Mexico district court.
N.M. S TAT. ANN . § 41-4A-3(B) (emphasis added). Counsel for Ms. Nix argued that the “or”
italicized in the above quote reflects that Ms. Nix may either establish that her rights were
violated by a public body or a person acting under color of a public body. Doc. 96 ¶ VI(a)(iii)–
(v). 	Because whether a person was acting under color of a public body is just one of two ways
to prove this element of the NMCRA, Ms. Nix’s counsel argued that DPS’s admission that Mr.
Keiner was acting under color of law does not concede a core element. Id. Counsel for DPS
agreed at the hearing that the language of the NMCRA seems to contemplate alternate bases for
establishing liability but also noted that case law interpreting the NCMRA’s language is sparse
given how new the statute is. Id. ¶ VII(b).
Even assuming that Ms. Nix’s interpretation of the NMCRA is correct, her argument is
unavailing. The Tenth Circuit has advised courts to look to the “effect upon the litigation” when
determining whether the first prong of the Rule 36(b) test has been satisfied. In re Durability,
Inc., 212 F.3d 551, 556 (10th Cir. 2000) (quoting Fed. Deposit Ins. Corp. v. Prusia, 18 F.3d 637,
640 (8th Cir. 1994)). If Ms. Nix is correct that proving that Mr. Keiner was acting under color of
law is just one of two ways to establish this element of her NMCRA claims, DPS’s admission
that Mr. Keiner was acting under color of law still excuses her from presenting evidence on that
issue. Under Ms. Nix’s interpretation, she need only prove one or the other to establish a
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NMCRA violation: either DPS as a public body violated her rights or Mr. Keiner was acting
under color of a public body when he violated her rights. In other words, she would not need to
prove at trial that DPS as a public body violated her rights because DPS’s admission that Mr.
Keiner was acting under color of state law conclusively establishes that element of her claim (so
long as she proves that Mr. Keiner violated her rights). The effect on the litigation is still that
DPS has conceded a core element of Ms. Nix’s NMCRA claim.
Ms. Nix also distinguishes the cases that DPS cites on the basis that those cases involve
“deemed admissions,” that is, where a party failed to respond rather than explicit, affirmative
responses like those made by DPS. Id. at 3–5. The text of Rule 36, however, does not
differentiate between deemed admissions and affirmative admissions, nor do the Advisory
Committee Notes comment on any difference between the two. See generally FED. R. C IV. P. 36.
Neither has the Tenth Circuit stated anything to imply that affirmative admissions should be
treated any differently than deemed admissions for purposes of Rule 36(b). See Raiser, 409 F.3d
at 1246–47; Bergemann, 820 F.2d at 1120–21; In re Durability, 212 F.3d at 556–57. On the
contrary, the Tenth Circuit’s decision in In re Durability involved an affirmative admission: the
parties to a bankruptcy case stipulated that a premium on a life insurance policy at issue in the
case had not been paid during a certain month, and the life insurance company moved for
summary judgment on that issue before discovery had closed. 212 F.3d at 554. During
discovery, however, the trustee obtained new evidence indicating that the premium actually had
been paid. Id. The bankruptcy court still granted the life insurance company’s motion for
summary judgment, relying on the trustee’s prior admission that the premium had not been paid
despite later evidence to the contrary. Id. Citing Bergemann, which involved a deemed
admission, the Tenth Circuit applied Rule 36(b)’s standard to decide whether the evidence
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contradicting the parties’ prior stipulation should be considered—effectively withdrawing the
plaintiff’s prior stipulation that the premium had been paid. Id. at 556–57 (citing Bergemann,
820 F.3d at 1120–21). The Tenth Circuit held that the lower court abused its discretion by
refusing to consider the new, contradictory evidence, and it was of no consequence that the
stipulation at issue was affirmative rather than a deemed admission. See id. at 557. Here, like in
In re Durability, DPS initially admitted to a fact that it now contests based on facts developed
during discovery. See id. at 554; Doc. 71 at 2.
Finally, Ms. Nix faults DPS for failing to satisfactorily explain why it initially admitted to
the RFAs and now—several months later—seeks to withdraw those admissions. Doc. 67 at 1, 7.
DPS asserts that the admissions were an honest mistake before all material facts had been
developed during discovery. Doc. 53 at 6; Doc. 71 at 1–2. Whatever the reason for DPS’s
admissions to RFAs 2 and 3, the “court’s focus must be on the effect upon the litigation and
prejudice to the resisting party rather than on the moving party’s excuses for an erroneous
admission.” In re Durability, 212 F.3d at 556 (citation modified). Accordingly, DPS’s reasons
for initially making those admissions are irrelevant to the Rule 36(b) analysis. The Court
therefore finds that DPS has satisfied the first prong of the Rule 36(b) analysis and that
permitting withdrawal of its admissions to RFAs 2 and 3 would promote presentation of the
action on the merits.
II. 	Ms. Nix has not satisfied the Court that allowing DPS to amend or withdraw its
admissions will prejudice her.
The second prong of the Rule 36(b) test requires Ms. Nix to show that she would be
prejudiced by the withdrawal of the movant’s admissions. “Mere inconvenience does not
constitute prejudice for this purpose,” and prejudice “is not simply that the party who obtained
the admission now has to convince the jury of its truth.” Raiser, 409 F.3d at 1246 (quoting
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Bergemann, 820 F.2d at 1121). Rather, Rule 36(b) prejudice “relates to the difficulty a party
may face in proving its case,” such as “the unavailability of key witnesses” or “the sudden need
to obtain evidence with respect to the questions previously deemed admitted.” Id. (quoting
Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995)). For example, the Tenth Circuit
found no prejudice where a plaintiff “clearly knew defendants challenged” a core element of her
case despite one defendant’s failure to answer a RFA regarding that element. Bergemann, 820
F.2d at 1121. The time at which the withdrawal is requested may also be relevant for
determining prejudice, as the closer the withdrawal is made to trial, the less time the nonmoving
party has to obtain evidence related to the previous admission. See Pedroza v. Lomas Auto Mall,
Inc., 258 F.R.D 453, 465 (D.N.M. 2009) (finding that seeking to withdraw an admission “on the
eve of trial, after discovery has closed, and two months after [the moving party] had agreed that
it would not withdraw its admission” would cause substantial prejudice to the nonmoving party),
superseded on other grounds as stated in Nissen v. United States, No. CIV 21-0505 JB/SMV,
2021 WL 3663799, at *3 (D.N.M. Aug. 18, 2021); United States v. 316 75th St. SW
Albuquerque, NM 87121, No. 1:21-cv-00549-KWR-KK, 2023 WL 6121917, at *3 (D.N.M. Sept.
19, 2023) (finding “no ‘sudden need’ for evidence related to the admissions on the eve of trial”
because no trial date was set) (quoting Raiser, 409 F.3d at 1246).
The burden is on “the party who obtained the admission . . . to satisfy the court that
withdrawal or amendment will prejudice that party in maintaining the action or defense on the
merits.” Raiser, 409 F.3d at 1246. Ms. Nix—in one short paragraph without citation to any
legal authority—simply contends that she will be prejudiced because she “hired expert witnesses
based on the discovery responses.” Doc. 67 at 8. As discussed above, the prejudice
contemplated by Rule 36(b) largely involves the difficulty the nonmoving party will face in
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gathering evidence it assumed it would not need because of the admission. See Raiser, 409 F.3d
at 1246. But because Mr. Keiner consistently has asserted that he was not acting under color of
state law, see Doc. 7 ¶¶ 44, 53, 57; Doc. 50 at 10–16, Ms. Nix has gathered substantial evidence
on that subject, some of which she attached to her response, see Docs. 67-1; 67-2; 67-4; 67-5.
Further, DPS represented at the hearing that Ms. Nix’s expert offered opinions that Mr. Keiner
was acting under color of law and was deposed on that subject. Doc. 96 ¶ V(a)(i)(3)(c). And
although DPS admitted that Mr. Keiner was acting under color of state law in its responses to
Ms. Nix’s First Set of Discovery, it denied that accusation in its July 8, 2024, answer to the
complaint. Doc. 3 ¶¶ 44, 53, 57. Thus, even if Ms. Nix believed she would not have to prove
that Mr. Keiner was acting under color of state law as to her claim against DPS, she’s been on
notice since September 2024 that at least Mr. Keiner is disputing this element. See Bergemann,
820 F.2d at 1121 (finding no prejudice where plaintiff knew defendants challenged a core
element of the plaintiff’s case despite one defendant failing to timely respond to a request for
admission); see also Doc. 50 at 10–16 (defendant Keiner’s motion for summary judgment based
in part on a lack of evidence that he was acting under color of law). Finally, DPS sought
withdrawal of its admissions several months before discovery closed on October 31, 2025, and a
trial date still has not been set. See Doc. 68 (extending case management deadlines to terminate
discovery on 10/31/2025); cf. Pedroza, 258 F.R.D at 465 (finding substantial prejudice where a
party moves to withdraw an admission on the eve of trial and after discovery has closed). The
Court therefore finds that Ms. Nix has failed to demonstrate that she will be prejudiced by
withdrawal and amendment of DPS’s admissions to RFAs 2 and 3.
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CONCLUSION
DPS has demonstrated that withdrawal of its admissions to Ms. Nix’s Request for
Admissions 2 and 3 will promote presentation of the case on the merits, and Ms. Nix has failed
to satisfy the Court that she will be prejudiced by the withdrawal of those admissions. DPS’s
Motion to Withdraw Admissions (Doc. 53) is therefore GRANTED. DPS shall serve amended
responses to RFAs 2 and 3 on Ms. Nix within seven (7) days of the date of this order.
IT IS SO ORDERED.
Laura Fashing
U.S. Magistrate Judge
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