Anthony and Gloria Donnora - Page 11

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          ignored, then paragraph 8 hardly matters.  Thus it is clear that,           
          if a reply was to be filed at all (see second sentence of Rule              
          37(c), supra note 5), then paragraph 7 must be dealt with.  Yet,            
          petitioners’ counsel filed a reply that dealt with paragraph 8 in           
          some detail, but ignored paragraph 7.                                       
               Respondent does not suggest that petitioners or their                  
          counsel had any improper purpose in ignoring paragraph 7.  We do            
          not discern from the record any improper purpose.  We conclude              
          that petitioners’ failure to deny the affirmative allegations in            
          paragraph 7 of the answer was inadvertent.                                  
               Because of the critical role these paragraph 7 allegations             
          play in the instant case, as emphatically shown by respondent’s             
          motion for summary judgment based largely on these allegations,             
          justice would be served by allowing petitioners to deny the                 
          paragraph 7 allegations, or some of them, unless such denial                
          would be unduly prejudicial to respondent.                                  
               In the instant case, petitioners’ proposed amendment seeks             
          to deny important allegations stated in respondent’s answer and             
          deemed admitted by petitioners’ failure to deny the allegations             
          in petitioners’ reply.  A pleading may be amended to withdraw a             
          previous admission where the other party is not prejudiced.  See            
          also Beeck v. Aquaslide “N” Dive Corp., 562 F.2d 537, 540 (8th              
          Cir. 1977) (“The burden is on the party opposing the amendment to           







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