The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION GRANTING PLAINTIFFS' MOTION TO WITHDRAW AUTOMATIC ADMISSIONS (Docs. 30 & 36) AND DENYING PLAINTIFFS' REQUEST FOR MONETARY SANCTIONS
Before the Court is Plaintiffs' motion to withdraw automatic admissions.
On June 5, 2008, Plaintiffs Narenda Kumar, Manish Kumar, Monica Kumar, and Savitri Srivastava, then proceeding in pro per, filed a Complaint against China Airlines and Does 1-10 in the Stanislaus County Superior Court for "business tort/unfair business practice," "breach of contract and breach of faith," "general negligence," "intentional tort and harassment & endangering life," and "prejudice & discrimination," arising out of the alleged denial of their boarding a China Airlines flight from New Delhi, India, to San Francisco, California, despite having received boarding passes and clearing airport security and immigration. Defendant removed the action to this Court on July 21, 2008. In this action, by Order filed on July 22, 2008, the Initial Scheduling Conference was set for October 30, 2008. On July 28, 2008, Defendant filed an Answer to the Complaint. On August 13, 2008, Defendant filed a motion to dismiss the Complaint for lack of subject matter jurisdiction because the United States is not a proper forum in which Plaintiffs can bring their claims pursuant to Article 28 of the Warsaw Convention. (Doc. 14), noticing it for hearing on October 27, 2008. By Minute Order filed on September 2, 2008, the hearing on the motion to dismiss was continued to November 3, 2008 and the Initial Scheduling Conference was continued to December 12, 2008. Again at Defendant's request, the hearing on the motion to dismiss was continued to December 1, 2008. By Declaration filed on October 7, 2008, Defendant's counsel, Julia K. Doyle, averred in connection with her request for continuance of the hearing on the motion to dismiss:
2. I have made several unsuccessful attempts to contact the plaintiffs in the instant action, as follows:
! On August 19, 2008, I called Mr. Narendra Kumar ... at the telephone number listed on the Court's docket. There was no answer, and no answering machine or service.
! On August 22, 2008, I again attempted to telephone Mr. Kumar ... Once again, there was no answer, and no answering machine or service.
! On August 27, 2008, I sent a letter to the plaintiffs, advising them that Condon & Forsyth LLP represents China Airlines in the instant matter, and requesting that they contact me as expediently as possible ....
! On September 11, 2008, I caused to be served on each plaintiff China Airlines' First Set of Requests for Admission ....
! On October 2, 2008, I again attempted to telephone Mr. Kumar ... Again, there was no answer, and no answering machine or service.
! On October 2, 2008, I sent a second letter to plaintiffs requesting that they contact our firm ....
By Minute Order filed on November 7, 2008, the hearing on the motion to dismiss was continued to February 2, 2009 and the Initial Scheduling Conference was continued to March 27, 2009. On December 4 and 9, 2008, Plaintiffs, still proceeding in pro per, filed their motion to withdraw deemed admissions, noticing the motion for hearing on February 9, 2009. On January 16, 2009, Jeffrey D. Bohn was substituted as counsel for Plaintiffs. Plaintiffs moved to continue the hearings on the motion to withdraw deemed admissions and the motion to dismiss and moved to hear the motion to dismiss after resolution of their motion to withdraw deemed admissions. Plaintiffs' motion was granted by Order filed on February 3, 2009. By Minute Order filed on February 4, 2009, the Initial Scheduling Conference was continued to June 12, 2009. In support of the motion to withdraw automatic admissions is filed Plaintiffs' Declaration, executed on November 24, 2008 in India: 1) Plaintiff Savitri Srivastava, aged 59 years is suffering from Diabetes, Hyper tension [sic], Ischemic Heart Disease, is suffering from repeated episodes of angina and is seriously ill an is under medication and may need bypass surgery & needs time to recover to be able to travel to U.S.A.
2) Plaintiff Narendra Kumar, aged 69 years, is suffering from COPD, asthma and severe respiratory and heart failure exacerbated by infections. Is currently on oxygen and medication. He also needs to time to recover to travel to the U.S.A.
3) Because all four plaintiffs are in a foreign country, they did not receive the requests for admission ...