The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF'S MOTION TO BE RELIEVED FROM DEEMED ADMISSIONS (Doc. 216)
In opposing Defendants County of Merced, Gordon Spencer, and Merle Wayne Hutton's motion for summary judgment, Plaintiff filed a motion to be relieved from deemed admissions.
On October 26, 2007, the County Defendants served Plaintiff by mail with requests for admission. The requests for admission were served on Plaintiff's counsel, Kevin Little at 2115 Kern Street, Suite 330, Fresno, California. Responses to the requests for admission were due by November 26, 2007. On November 26, 2007, Mr. Little filed a Notice of Change of Address, listing his new address as 2339 Kern Street, Suite 330, Fresno, California.
The County Defendants' motion for summary judgment was filed on December 21, 2007 and relied to some extent on the unanswered requests for admission. Plaintiff filed responses to the requests for admission on April 28, 2008. In the responses to requests for admission, Plaintiff's counsel avers that the requests for admission, "although apparently propounded in late October 2007, were not received during that time period, perhaps because plaintiff's counsel was then in the process of changing offices."
Rule 36(a), Federal Rules of Civil Procedure, provides that the "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 ...." "Failure to respond to requests for admission results in automatic admission of the matters requested ... No motion to establish the admissions is needed because Federal Rule of Civil Procedure 36(a) is self-executing." Federal Trade Commission v. Medicor LLC, 217 F.Supp.2d 1048, 1053 (C.D.Cal.2002). Rule 36(b), Federal Rules of Civil Procedure, provides:
A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(c), the court may permit 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.
Plaintiff asserted in opposition to Defendants' motion for summary judgment based on the deemed admissions: Plaintiff has timely responded to more than a dozen discovery requests in this action without any motions to compel being filed, so there is no inference that her failure to respond any earlier was in any way intentional or sanctionable, much less to the extent sought by the County Defendants. Plaintiff's contention that, because Defendants did not file a motion to compel responses to the requests for admission, she should be relieved of the deemed admissions, fails because of self-executing provision in Rule 36(a).
Plaintiff did not move to be relieved of the deemed admissions until after the County Defendants' motion for summary judgment had been taken under submission by the Court for resolution. In support of the motion to be relieved from the deemed admissions, counsel for Plaintiff avers:
I was required to move with minimal notice from my prior office in late October 2007, and had vacated said premises before November 1, 2007. I do not ever recall seeing or being aware of the subject admission requests until they were presented as part of the County defendants' motion for summary judgment. I suspect that the unopened envelope containing the subject requests may have been misplaced during my hasty move.
However, I can assure the Court that I did not intentionally refuse to timely respond to said requests on plaintiff's behalf. "Rule 36(b) is permissive, not mandatory, with respect to the withdrawal of admissions. Conlon v. United States, 474 F.3d 616, 621 (9th Cir.2007). '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.'" Id. at 622. The party relying on the deemed admissions has the burden of proving prejudice. Id. "The prejudice contemplated by Rule 36(b) is '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 person 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."
Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir.1995). "Reliance on a deemed admission in preparing a summary judgment motion does not constitute prejudice." Conlon, id. at 624. However, even if the moving party satisfies the two-pronged test, the Court retains discretion to deny the motion. Id. at 624-625. "[I]n deciding whether to exercise its discretion when the moving party has met the two-pronged test of Rule 36(b), the district court may consider other factors, including whether the moving party can show good cause for the delay and whether the moving party appears to have a strong case on the merits." Id. at 625.
Here, the two-pronged test is satisfied. The deemed admissions practically eliminate any presentation by Plaintiff of the case on the merits. The County Defendants have not shown prejudice as contemplated by Conlon. The County Defendants rely on the deemed admissions in seeking summary judgment. Further, the County Defendants rely on deposition testimony, declarations, and other documentary evidence as well as the deemed admissions in seeking summary judgment. There is no showing that granting Plaintiff's motion to be relieved of the deemed admissions will cause the County Defendants any difficulty in proving their case.
Although Plaintiff's counsel was careless in representing his client by failing to insure that all papers received by him in connection with this action were accounted for during the move of his office, the Court concludes that he has shown cause for the delay in responding to the deemed admissions. Further, no trial date has been set in this action.
Plaintiff's motion to be relieved from the deemed admissions is GRANTED. The Court disregards the County Defendants' Statement of Undisputed Facts Nos. 70-75 in ...