The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge
MOTION TO AMEND OR WITHDRAW ORDER DENYING PLAINTIFFS' ADMISSIONS
Plaintiffs Omni Home Financing, Inc. ("Omni"), Omni Home Financing, Inc. 412(i) Defined Benefit Plan ("Plan"), Keith Murphy ("Murphy"), Anthony A. Gaglione ("Gaglione") and David A. Bancroft ("Bancroft") (hereinafter collectively "Plaintiffs") have filed a Motion to Amend or Withdraw Admissions. Defendants Hartford Life and Annuity Insurance Company ("Hartford") and Paul Bannock ("Bannock") (hereinafter collectively "Defendants") oppose. For the reasons set forth below, the Court DENIES Plaintiffs' motion.
On or about May 29, 2007, Defendant Hartford served Requests for Production, Interrogatories and Requests for Admissions upon Plaintiffs Omni, Murphy, Gaglione and Bancroft.*fn1 Pls.' Mem. in Supp. of Mot. [Doc. No. 97-2] ("Pl.'s Mem.") at 2; Defs.' Resp. to Mot. [Doc. No. 106] at 3; Notice of Lodgment in Supp. of Mot. [Doc. No. 97-4] ("Notice of Lodgment"), Ex. B at 5, 17, 47, 70. Plaintiffs' responses to the discovery were due on July 2, 2007. Pls.' Mem. at 2; Taylor Decl. in Opp'n [Doc. No. 107] ("Taylor Decl."), ¶ 3. On July 23, 2007, Defendants' counsel, Jessica Spangler Taylor, Esq., notified Plaintiffs' counsel, Susan Meter, Esq., of the overdue responses by telephone. Pls.' Mem. at 2; Taylor Decl., ¶ 4. Ms. Taylor also advised Ms. Meter of Hartford's position that Plaintiffs had waived all of their objections to the discovery requests and that the requests for admission had been deemed admitted. Taylor Decl., ¶ 5. Plaintiffs state that "as a result of extending discovery deadlines in pursuit of settlement of the case, [they] inadvertently overlooked the deadline" for responding to the written discovery propounded by Hartford and/or Bannock. Pls.' Mem. at 2.
After July 23, 2007, Plaintiffs' counsel asked Defendants' counsel whether Hartford was interested in pursuing settlement before Plaintiffs provided the overdue discovery responses.
Jones Decl. in Opp'n [Doc. No. 106-4] ("Jones Decl."), ¶ 5. Hartford agreed to hold its discovery demands in abeyance for a brief period of time, but made clear that "its position was in no way a waiver of Hartford's position that Omni waived all objections to Hartford's discovery." Id. Plaintiffs forwarded a settlement demand to Defendants' counsel on August 10, 2007. , ¶ 6; Meter Decl. in Supp. of Mot [Doc. No. 97-3] ("Meter Decl."), ¶ 3. Hartford rejected the settlement offer on August 13, 2007. Jones Decl., ¶ 7; Meter Decl., ¶ 3. Plaintiffs responded to all of the outstanding written discovery requests, including the requests for admission, on August 20, 2007. Meter Decl., ¶ 6; Notice of Lodgment, Ex. C. After counsel met and conferred regarding the discovery responses, Plaintiffs served amended responses to some of the requests for admission on or about September 20, 2007. Meter Decl., ¶ 7; Notice of Lodgment, Ex. D. Nothing in the record demonstrates that Hartford, throughout this chain of events, ever abandoned its position that the requests for admission had been deemed admitted.
Plaintiffs' counsel, Ms. Meter, first notified the Court of her clients' desire to file the instant motion on October 10, 2007. Plaintiffs filed their motion on October 12, 2007, after participating in a conference call with the undersigned's chambers as required by the Court.
Rule 36 of the Federal Rules of Civil Procedure, applicable to requests for admission, states that a matter is deemed 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." Fed. R. Civ. P. 36(a). Any matter admitted under Rule 36 is "conclusively established unless the court on motion permits withdrawal or amendment of the admission." Fed. R. Civ. P. 36(b). "[T]he court may permit withdrawal or amendment 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 the action or defense on the merits." Id. (emphases added).*fn2
"The first half of the test in Rule 36(b) is satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case." Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995). The second half of the test, the prejudice component, requires "not simply that the party who obtained the admission will now have to convince the factfinder 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 deemed admitted." Id. (citation and quotations omitted). The party relying on the deemed admission has the burden of establishing that withdrawal or amendment of the admission would prejudice the party's case. Id.
Rule 36(b) is permissive, not mandatory, with respect to the withdrawal or amendment of admissions. Conlon v. United States, 474 F.3d 616, 621, 624-25 (9th Cir. 2007). Therefore, even if the moving party can satisfy the two-pronged test, the court is not required to grant relief. Id. at 624. In deciding a motion to withdraw or amend admissions, the court may also consider other factors, including whether the moving party can demonstrate good cause for the delay and whether the moving party appears to have a strong case on the merits. Id. at 625.