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Carl L. Jimena v. Headquarters

February 8, 2011

CARL L. JIMENA, PLAINTIFF,
v.
UBS AG BANK, INC., SWITZERLAND HEADQUARTERS, ET AL. DEFENDANT.



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

MEMORANDUM DEFENDANT'S DECISION RE: MOTION TO BE RELIEVED FROM DEEMED ADMISSIONS (Doc. 291)

I. INTRODUCTION.

Before the Court for decision is Defendant UBS AG's motion to withdraw admissions pursuant to Rule 36(b) of the Federal Rules of Civil Procedure.

Plaintiff has filed an opposition, to which Defendant has replied.

II. FACTUAL AND PROCEDURAL BACKGROUND.

Although the parties dispute many of the relevant facts concerning this motion, this is a general summary:*fn1

Plaintiff allegedly delivered the relevant discovery requests Request for Admissions, Set One*fn2 - addressed to UBS AG's counsel, at an OfficeMax FedEx drop-off location on Sunday, June 6, 2010. It is undisputed that Plaintiff, in violation of law, did not complete a proof of service for these discovery requests, but retained a receipt showing that he dropped the package off on June 6, 2010. The package was shipped to UBS AG's counsel by FedEx, delivered on Monday, June 7, 2010, and received by counsel on June 8, 2010.

It is undisputed that UBS AG's responses to these requests were served on Plaintiff on Monday, July 12, 2010. Plaintiff asserts that "personal service" to UBS was complete when he delivered the package to the FedEx location on June 6, 2010. Using June 6th as a guidepost and strictly applying the relevant black letter service standards, Plaintiff argues that the responses were due from UBS AG on Tuesday July 6, 2010 or, at the latest, Friday July 9, 2010 - assuming Rule 6(d) applies. Plaintiff claims that under either scenario, UBS AG's July 12, 2010 responses were untimely and are deemed admitted under Rule 36(a)(3).

As discussed in the related November 3, 2010 Memorandum Decision and Order, Federal Rule 36(a)(3) provides, in relevant part: "A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." Under Rule 6(d), however, a party is given three additional days to respond if the requests were "served by mail." See Fed. R. Civ. P. 5(b)(2)(C). Plaintiff argues that the requests were "personally served," which is not one of the circumstances delineated in Rule 6(d), i.e., UBS had thirty days to respond, not thirty-three. Assuming, arguendo, that Rule 6(d) applies, Plaintiff contends that UBS AG had thirty-three days from June 6, 2010, not June 7, 2010.

UBS AG disagrees, arguing that the responses were timely because the requests were "served by mail" on June 7, 2010. Counting from that date and applying Rule 6(d), the thirty-third day falls on Saturday, July 10, 2010. According to Fed. R. Civ. P. 6(a)(1)(C), UBS AG's responses were, therefore, due on Monday, July 12, 2010, the date the responses were actually received. UBS AG further asserts that, if it miscalculated the response deadline, it was due to Plaintiff's failure to include a proof of service to enable it to ascertain the date and mode of service.

These arguments, and many others, were addressed in detail in the November 3, 2010 Memorandum Decision and Order, and are discussed here to provide relevant background and frame the dispute, not to add further analysis. The November 3, 2010 Memorandum Decision and Order determined that a Rule 36(b) motion was necessary to resolve the disagreements over timeliness and personal/mail service:

For entertain the reasons admissions. a motion previously UBS stated, would deemed by AG Court UBS attempted to be relieved the good from the AG in faith to confusion in this matter was caused discovery in large requests; part the by timely respond to Plaintiff's Plaintiff's U.S. Mail accompanied failure to by serve a proof the of discovery service. requests by admissions would essentially The deemed defending of dollars in damages based on alleged fraud. this action in which Plaintiff preclude seeks UBS millions AG from However, admissions, UBS AG is required to file a motion. in order to be relieved from the deemed (Doc. 289 at 11:20-12:4.) On November 15, 2010, UBS AG moved to "be excused from being deemed to have admitted the Requests for Admission set forth in Plaintiff's First Set of Requests for Admission." (Doc. 291.) Defendant cites Rule 36(b) of the Federal Rules of Civil Procedure.

Plaintiff opposed the motion on November 29, 2010. (Doc. 293.) Plaintiff filed an amended opposition on December 1, 2010. (Doc.296.)

III. LEGAL STANDARDS.

When a party fails to timely respond to requests for admission, the matters requested are automatically deemed admitted. See Fed. R. Civ. P. 36(a)(3) ("A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney."). "A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended." Fed. R. Civ. P. 36(b).

Withdrawal or amendment of the admissions may be permitted if withdrawal: (1) will promote the presentation of the action on the merits; and (2) will not result in prejudice to the party who obtained the admission in maintaining the action or defense on the merits. Fed. R. Civ. P. 36(b). "[A] district court must specifically consider both factors under the rule before deciding a motion to withdraw or amend admissions." Conlon v. United States, 474 F.3d 616, 622 (9th Cir. 2007). The party who obtained the admission bears the ...


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