The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 19) ORDER DENYING PLAINTIFF'S MOTION TO WITHDRAW OR AMEND ADMISSIONS; MOTION FOR JUDICIAL NOTICE; AND MOTION FOR SANCTIONS (ECF Nos. 22, 24, 30) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S SUR-REPLIES / (ECF No. 31)
Plaintiff David Alan Wyatt ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint, filed July 17, 2009, against Defendants Zanchi and Jones for retaliation in violation of the First Amendment. On May 2, 2011, Defendants filed a motion for summary judgment. (ECF No. 19.) Plaintiff filed a motion to withdraw his admissions on June 30, 2011. (ECF No. 22.) On July 11, 2011, Plaintiff filed a request for judicial notice, opposition*fn1 to Defendant's motion for summary judgment, declaration, and response to Defendants' motion for summary judgment, and Defendants' filed a reply. (ECF Nos. 23-27.) On July 14, 2011, Defendants filed an opposition to Plaintiff's request to withdraw his admissions. (ECF No. 28.) On July 28, 2011, Plaintiff filed a sur-reply and a motion for sanctions. (ECF No. 29, 30.) Defendants filed a motion to strike Plaintiff's sur-reply on August 2, 2011. (ECF No. 31.) Plaintiff filed a reply to Defendants' opposition to his motion to withdraw his admissions and declaration on August 9, 2011. (ECF Nos. 32, 33.) On August 15, 2011, Plaintiff filed an opposition to Defendants' motion to strike his sur-reply and Defendants filed a reply on August 17, 2011. (ECF Nos. 34, 35.)
II. Motion to Withdraw Admissions
Plaintiff moves to withdraw his admissions because he believed that no response was necessary and did not become aware of the legal consequence of his failure to respond until the motion for summary judgment was filed. Plaintiff received Defendants request for admissions and decided that they did not need to be responded to. Plaintiff was feeling overburdened and oppressed by Defendants' requests and chose to wait for a court order before responding to the requests. It wasn't until Defendants filed their motion for summary judgment on May 2, 2011, that Plaintiff realized the legal consequence of his failure to respond to Defendants' requests for admissions.
Plaintiff argues that if he is not allowed to withdraw his admissions the case will be "muddled, jumbled, tangled, and complicated." (Motion to Withdraw Admissions 4, ECF No. 22.) Plaintiff states that, while Defendants will be inconvenienced, they will not suffer prejudice from granting his motion. Alternately, Plaintiff requests that the Court reopen discovery.
Defendants oppose Plaintiff's motion to withdraw his admission on the grounds that upholding the admissions would not eliminate any presentation of the case on the merits, Defendants would be prejudiced, and Plaintiff failed to show good cause why he waited 220 days after his responses were due to file his motion to withdraw his admissions. Alternately, if Plaintiff's motion is granted, Defendants request monetary sanctions, including attorney's fees, for the expenses caused by Plaintiff's failure to serve timely responses.
Defendants state that since their motion for summary judgment is largely based upon the merits of the case, denying Plaintiff's motion will not practically eliminate presentation of the merits. Defendants argue that due to Plaintiff's failure to respond to any of their discovery requests and their meet and confer letter, they determined that further discovery would be futile. Plaintiff was informed of the consequences of his failure to respond to the requests for admissions prior to the discovery cut-off date and there was no indication that he intended to file a motion to withdraw his admissions. Defendants relied on Plaintiff's admissions prior to the discovery cut-off date, dispositive motion date, and for 220 days prior to Plaintiff filing his motion to withdraw.
Defendants also argue that if the Court finds that Plaintiff satisfies the test to allow him to withdraw his admissions, Plaintiff has not shown good cause for the delay. Finally, Defendants state that Plaintiff's request to reopen discovery should be denied because he has failed to meet the good cause standard required to modify the scheduling order. In the alternative, Defendants request sanctions of attorney's fees and costs in the amount of $1,225.
Plaintiff replies that Defendants discovery requests were propounded to obtain a technical and tactical advantage to prevent the merits of his case from being heard. Plaintiff argues that the letter he received was a "gotcha letter," an after the fact "nose thumbing," and "threatening" letter, but not a meet and confer letter. As a pro se litigant, he is exempt from initial disclosures and Defendants are attempting to mislead the court because they did not make initial disclosures. Defendants have failed to show that they would be prejudiced by granting his motion. Defendants are not entitled to sanctions and now that Plaintiff has the assistance of a jailhouse lawyer he is ready to begin litigating this action.
Pursuant to Rule 36(a) of the Federal Rules of Civil Procedure, [a] party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1). . . 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.
Additionally, the Rules provide that "[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). "[T]he 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 its merits." Id.
Two prongs must be satisfied for the court to allow the party to withdraw his admissions: 1) withdrawal must promote presentation of the action on its merits; and 2) the party who obtained the admission must not be prejudiced by the withdrawal. Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1994). The court must specifically consider both prongs of the rule in deciding a motion to amend or withdraw admissions. Conlon v. United States, 474 F.3d 616, 622 (9th Cir. 2007).
The first prong of the test is met when upholding the admissions will eliminate presentation of the case on its merits. Hadley, 45 F.3d at 1348. The parties disagree as to whether denying Plaintiff's motion will eliminate presentation of the case on the merits. Admissions are to be sought to facilitate proof regarding "issues that cannot be eliminated from the case . . . and to narrow the issues by eliminating those that can be." Conlon, 474 F.3d at 621.
While Plaintiff argues that the admissions sought here were propounded to gain a tactical and technical advantage, the documents themselves prove otherwise. It is Defendants contention that they did not retaliate against Plaintiff by placing him in administrative segregation, but that Plaintiff was mistakenly placed in the general population after he had threatened Officer Ybarra. The requests for admissions propounded by Defendant Jones specifically address the issues of the incident that occurred with Officer Ybarra, the transfer options available, and the mistaken release of Plaintiff into the general population. The requests for admissions addressed the issues that Defendants needed to narrow in order to prepare their defense in this action. However, the requests for admissions also ask Plaintiff to admit that Defendants Jones and Zanuchi did not retaliate against him, which would be dispositive on the merits of Plaintiff's claim. Therefore, the first prong is met because denying Plaintiff's motion would eliminate presentation of the case on the merits.
The second prong, prejudice to the party obtaining the admissions, is "not simply that the party who obtained the admission will now have to convince the fact finder 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 that were previously deemed admitted. Brook Village North Assoc. v. General Elec. Co, 686 F.2d 66, 70 (1st Cir. 1982); Hadley, 45 F.3d at 1348. Courts are more likely to find prejudice to the party during trial of the action. Hadley, 45 F.3d at 1349. The party who obtained the admission has the burden of establishing that withdrawal of the admission would prejudice his case. Id. at 1348; FDIC v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994). Defendants argue that they would suffer prejudice from the withdrawal of Plaintiff's admissions because they relied on Plaintiff's admissions and determined that it would be futile to seek further discovery since Plaintiff failed to respond to any of their discovery requests. However, lack of discovery, without more, does not constitute prejudice. Conlon, 474 F.3d at 624.
While Defendants have relied on the admissions in their motion for summary judgment, this is insufficient to establish prejudice. Id. Cases which have found prejudice to support allowing the admissions to stand have required a greater showing of prejudice than found here. Hadley, 45 F.3d at 1349; see Westmoreland v. Triump Motorcycle Corp., 71 F.R.D. 192 (D. Conn. 1976) (permitting withdrawal of admissions that were one year late where defendants promptly filed a motion to withdraw). Defendants have failed to meet their burden to show that they would suffer prejudice and the second prong is met.
"Rule 36(b) is permissive, not mandatory, with respect to the withdrawal of admissions,"and and a court is not required to grant the relief even when the two prongs are satisfied. Conlon, 474 F.3d at 621, 624. In determining whether to exercise its discretion to allow the party to withdraw or amend the admissions, the court may also consider other factors, including whether the moving party has shown good cause and the strength of the case on the merits. Conlon, 474 F.3d at 625. The Court finds that Plaintiff's conduct in completely failing to respond to Defendants discovery requests and attempt to meet and confer justify the denial of Plaintiff's motion to withdraw his admissions.
On October 8, 2010, Defendants served requests for admissions, interrogatories, and requests for production of documents on Plaintiff. Plaintiff had forty five days to respond to the discovery requests. On December 13, 2010, Defendants sent Plaintiff a meet and confer letter informing him of the consequences of failing to respond to the requests for admissions and that he had waived his objections by failing to respond to the interrogatories and request for production of documents. Plaintiff did not respond to any of Defendants discovery requests or to the meet and confer letter.
Plaintiff states that he was overwhelmed by the requests, however Defendants only served a total of twenty one requests for admissions, twenty one interrogatories, and eight requests for production of documents. A review of these documents demonstrates that the requests were not over burdensome. Additionally, Plaintiff merely had to write his response in the space provided on the request for admissions and return a copy to Defendants.
Good cause requires a showing of due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). While Plaintiff claims that he did not believe he needed to respond to the discovery requests absent a motion to compel, Defendants' letter of December 13, 2010, informed him that his admissions were deemed admitted. Still Plaintiff took no action to respond to the discovery requests or to file a motion to withdraw his admissions. Additionally, Plaintiff states that it wasn't until he received the motion for summary judgment, which was served on May 2, 2011, that he realized the legal significance of his failure to respond. Yet Plaintiff still waited almost two more months, and did not file his motion to withdraw until June 30, 2011. Plaintiff has failed to show good cause exists to grant his motion.
Plaintiff's argument that he believed he did not have to respond to the discovery requests that were served by Defendants is unpersuasive. The discovery and scheduling order, issued June 21, 2010, informed the parties that responses to discovery requests "shall be due forty-five (45) days after the request is first served." (Discovery and Scheduling Order 1:22, ECF No. 17.) Plaintiff may not disregard the orders of the Court and the discovery rules without consequence. Further, Plaintiff's characterization of the meet and confer letter sent December 13, 2010, is not accurate. The letter stated:
On October 8, 2010, you were served with requests for admission, set one, request for production of documents, set one, and interrogatories, set one, on behalf of my clients Mr. Zanchi and Mr. Jones. Your responses were due November 22, 2010 and are now three weeks late. The requests for admissions have now been deemed admitted and you have waived your objections to the requests for production of documents and the interrogatories.
Please produce any responsive documents to my office by December 29, 2010 in order to avoid a motion to compel. If I am required to prepare a motion to compel, I will seek monetary sanctions for having to do so.
The letter was a legitimate attempt to meet and confer and no language could be construed as intending to mislead Plaintiff into believing he did not have to respond without a court order.
Plaintiff contends that Defendants are trying to mislead the Court because they failed to make initial disclosures. However, Federal Rule of Civil Procedure exempts from initial disclosure "an action brought without an attorney by a person in the custody of the United States." Fed. R. Civ. Proc. 26(a)(1)(B). While Defendants request sanctions if Plaintiff's motion is granted, monetary sanctions are not available given that Plaintiff is incarcerated and proceeding in forma pauperis, making the imposition of such sanctions of no consequence. This is not a case where Plaintiff promptly filed a motion to withdraw his admissions once his was aware that he had failed to respond. This is not a case where plaintiff attempted to comply with his discovery obligations. Plaintiff waited over six months from being informed by defense counsel that his failure to respond had resulted in the admissions deemed admitted, and almost two months from when he stated that he was aware of the legal significance of the admissions before filing this motion. Based on the foregoing, Plaintiff's motion to withdraw or amend his admissions is denied.
III. Motion to Strike Plaintiff's Sur-replies
Defendants move to strike Plaintiff's reply to Defendants' objections to Plaintiff's statement of disputed facts and motion for the Court to consider the imposition of sanctions on the grounds that they are an improper sur-reply couched as a motion for sanctions.
The Local Rules provide for a motion, an opposition, and a reply. Neither the Local Rules nor the Federal Rules provide the right to file a surreply, and the Court neither requested one nor granted a request on the behalf of Plaintiff to file one. Accordingly, Defendants' motion shall be granted in part and Plaintiff's sur-reply, filed July 28, 2010, shall be stricken from the record. (ECF No. 29.) However, Defendants' motion to strike Plaintiff's motion for the imposition of sanctions shall be denied.
IV. Motion for Summary Judgment Legal Standard
Pursuant to Federal Rule of Civil Procedure 56©, summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Summary judgment must be entered, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, the court is to liberally construe the filings and motions of pro se litigants. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010.) The "party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Rule 56© of the Federal Rules of Civil Procedure).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible ...