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Hydrotech, Inc. v. Bara Infoware

August 10, 2009

HYDROTECH, INC., A NEVADA CORPORATION, PLAINTIFF,
v.
BARA INFOWARE, INC., A SPECIALTY INSURANCE COMPANY, A CALIFORNIA CORPORATION; U.S. THROUGH X, INCLUSIVE TEXAS CORPORATION; AND DOES I, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION RE: PLAINTIFF'S MOTION TO WITHDRAW ADMISSIONS AND MOTION FOR LEAVE TO RESPOND TO REQUESTS FOR ADMISSION

(Doc. 36.)

I. INTRODUCTION

Before the court for decision is Plaintiff Hydrotech, Inc.'s motion to withdraw admissions and motion to respond to requests for admissions.

II. BACKGROUND

Although the parties dispute many of the relevant facts, this is a general summary: this case arises out of a subcontract between Hydrotech, Inc. ("Hydrotech") and Bara Infoware, Inc. ("Bara"), wherein Hydrotech agreed to perform pipeline refurbishing services as part of the "Repair Storm Water Systems Components - Lemoore Naval Air Station" (the "Project"). On September 17, 2007, Bara entered into a contract with the U.S. Navy to improve the Lemoore Naval Air Station. On November 13, 2007, Bara secured a Miller Act payment bond from Defendant U.S. Specialty Insurance Company ("U.S. Specialty") in the approximate amount of $607,000.00 as required by the Navy on this project. Under the bond, U.S. Specialty agreed to be bound with Bara to make payments to all persons having a direct contractual relationship with Bara or to any subcontractor of Bara. On November 20, 2007, Bara and Hydrotech entered into a subcontract to the Project via written proposal.

During the course of Hydrotech's work on the project, a dispute arose over the timeliness of Bara's payments to Hydrotech. As a result, Hydrotech ceased all work on the project. On September 17, 2008, the parties settled their dispute, entering into a "Partial Settlement Agreement." Hydrotech then completed its work on the Project. However, Hydrotech claimed that it was not paid timely progress payments for work it performed on the Project and it was not paid in full for work it performed on the Project. Bara disputed Hydrotech's claims, arguing that its payments to Hydrotech were timely and complete.

On January 12, 2009, Hydrotech filed a complaint against Bara and U.S. Specialty for breach of contract (Count I); unjust enrichment (Count II); and under the Miller Act (Count III). (Doc. 1.) Hydrotech seeks damages in the amount of $193,846.48, the amount allegedly owed to Hydrotech under its contract with Bara.

Defendant U.S. Specialty filed its answer to Plaintiff's complaint on February 13, 2009. (Doc. 8.) Defendant Bara filed its answer on February 23, 2009. (Doc. 9.)

On April 17, 2009, Defendant Bara propounded to Hydrotech (by mail) written discovery including Requests for Admissions, Set One.*fn1 Under Rule 36 of the Federal Rules, Plaintiff's responses were due on May 20, 2009.*fn2

On May 1, 2009, John D. Moore, Esq., of the Law Offices of Michael B. Springer, filed a motion to withdraw as counsel of record for Plaintiff Hydrotech. (Doc. 19.) According to Moore's declaration, the Springer law firm represents Hydrotech in a number of pending actions in San Diego, Bakersfield, and Fresno (this action). Moore stated in his declaraton that the Law Offices of Michael B. Springer performed various legal service on behalf of Hydrotech, billing Hydrotech for such costs and fees on a monthly basis. As of May 1, 2009, Hydrotech owed the law office approximately $38,619.26, most of which was overdue for 120 days.*fn3

On May 20, 2009, Hydrotech's attorney of record, Mr. Moore, sent a letter to Bara's counsel requesting a two month extension to respond to the written discovery, including the Requests for Admissions, Set One. On May 22, 2009, Bara denied Mr. Moore's request for a two month extension. Bara's counsel granted Hydrotech a seven day extension, requesting Hydrotech provide discovery responses by May 29, 2009. Hydrotech did not provide Bara with discovery responses by the May 29, 2009 deadline.

On July 1, 2009, Defendant Bara moved for summary judgment or, in the alternative, summary adjudication on Plaintiff's first, second, and third causes of action.*fn4 (Doc. 26.) With its motion, Defendant Bara filed a Statement of Undisputed Facts, supported entirely by the Requests for Admissions, Set One ("Deemed Admissions"). (Doc. 30.) Defendant Bara seeks summary judgment on the grounds that Plaintiff's own admissions render it unable to produce sufficient evidence to establish the existence of each element of its first, second, and third causes of action.

Hydrotech filed a Motion to Withdraw Admissions and Motion for Leave to Respond to Requests for Admission on July 2, 2009. (Doc. 36.) Hydrotech argues that it is entitled to relief under Rule 36(b). Specifically, Hydrotech argues that it had a reasonable excuse for its failure to respond, no prejudice results by the late discovery responses, and the merits of the case are served by permitting Hydrotech to respond.

On July 2, 2009, Hydrotech filed an ex parte application for an order shortening time to allow a hearing on its motions prior to the hearing on Defendant Bara's summary judgment motion. (Doc. 39.) The application was granted on July 8, 2009. (Doc. 42.) Defendants Bara and U.S. Specialty Insurance filed their oppositions to Hydrotech's motion Motion to Withdraw Admissions and Motion for Leave to Respond to Requests for Admission on July 17, 2009. (Docs. 44, 46.)

According to a declaration filed by Mr. Moore on July 22, 2009, U.S. Specialty's attorney stated that, as professional courtesy to counsel, it would not propound any discovery until the pendency of counsel's motion to withdraw. (Doc. 50, Exh. A.) As of August 3, ...


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