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Alan Weeks, An Individual Doing Business As K&W Sales; and King Fresh Produce, LLC v. Fresh-Pic Produce Company

March 12, 2013

ALAN WEEKS, AN INDIVIDUAL DOING BUSINESS AS K&W SALES; AND KING FRESH PRODUCE, LLC,
PLAINTIFFS,
v.
FRESH-PIC PRODUCE COMPANY, INC., A CALIFORNIA CORPORATION; FRANK AVILA, AN INDIVIDUAL; KARINA SAUCEDO, AN INDIVIDUAL; FRESH CUT PRODUCE COMPANY, A CORPORATION; ROBERTO SALINAS, AN INDIVIDUAL; MICHAEL A. ALMANZA, INDIVIDUAL AND DOING BUSINESS AS PURA VIDA, DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER RE MOTIONS TO WITHDRAW/AMEND ADMISSIONS AND ALTER/AMEND JUDGMENT

On May 17, 2012, the Court issued an order granting in part and denying in part Plaintiffs' motion for reconsideration. In particular, the Court reversed its initial holding and granted Plaintiffs' motion for summary judgment on their Perishable Agricultural Commodities Act ("PACA") claims. Order re Mot. Reconsid. May 17, 2012 (ECF No. 74) at 2-4. Accordingly, judgment was entered in favor of Plaintiffs.

Subsequently, on June 13, 2012, Defendants Frank Avila, Michael A. Almanza, and Karina Saucedo filed motions to withdraw or amend admissions under Fed.R.Civ.P. 36(b) (ECF No. 79), to amend or alter the judgment under Fed.R.Civ.P. 59(e) (ECF No. 80), and to stay proceedings to enforce a judgment (ECF No. 81). The moving defendants argued in all three motions that "because of a failure of representation that constitutes client abandonment, this court did not have before it any evidence to support Defendants' contention that there are such genuine issues of material fact." (ECF No. 79-1 at 1; ECF No. 80-1 at 1; ECF No. 81-1 at 2.) On July 25, 2012, the Court denied the motion for an order staying execution of the judgment, but did not rule on the other two motions. For the reasons stated below, the Court DENIES the motion to withdraw or amend admissions, and GRANTS the motion to alter or amend the judgment as to Mr. Almanza and Ms. Saucedo but DENIES it as to Mr. Avila.

The Court presumes the parties' familiarity with the facts.

I. Motion to Withdraw or Amend Admissions

Under Federal Rule of Civil Procedure 36(b), "the court may permit withdrawal or amendment [of an admission] [1] if it would promote the presentation of the merits of the action and [2] if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits." Rule 36(b) is permissive, and a court may deny a party's motion to withdraw or amend admissions even if both prongs are met. Conlon v. United States, 474 F.3d 616, 624-25 (9th Cir. 2007). However, the court must analyze both factors. See id. at 625. The court may also consider additional factors, such as whether the moving party can show good cause for the delay or has a strong case on the merits, but the two factors enumerated in the rule are "central to the analysis." Id.

a. Presentation of the Merits "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 (internal quotations omitted) (quoting Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995)). For claims brought under the statutory trust provisions of PACA, only those "who are in a position to control PACA trust assets, and who breach their fiduciary duty to preserve those assets" may be held personally liable under PACA. Sunkist Growers, Inc. v. Fisher, 104 F.3d 280, 283 (9th Cir. 1997). The moving defendants now contest whether they are fiduciaries such that they may be held personally liable, in contrast to their deemed admissions. Because upholding the admissions would eliminate any presentation on the merits, see Conlon, 474 F.3d at 622, the first prong of the test is satisfied.

b. Prejudice to Plaintiffs

The second prong of the Rule 36(b) test is whether withdrawing or amending the admissions would prejudice the nonmoving party in maintaining or defending the action on the merits.

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 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 previously deemed admitted.

Id. at 622 (internal quotations omitted) (quoting Hadley, 45 F.3d at 1348). The party relying on the admissions has the burden of proving prejudice. Id.

According to Plaintiffs, and substantiated by the moving defendants' declarations in support of their motions, Defendants only had two contacts with K&W Sales ("K&W"): Alan Weeks and Scott Saikhon. (ECF No. 98 at 8.) Both have since passed away. Mr. Saikhon, a K&W sales representative, died on February 23, 2009, a few months after the lawsuit was filed. (Id.) Mr. Weeks, the owner and operator of K&W, died on May 18, 2011, before the Court ruled on Plaintiffs' dispositive motions but well after the admissions were deemed admitted.*fn1 According to Plaintiffs, "[b]oth deaths were unexpected, and neither of these witnesses recorded declarations concerning the business relationship between K&W and the Defendants." (Id. at 2.)

The unavailability of key witnesses was expressly contemplated by the Ninth Circuit as indicative of prejudice, see supra. However, while both men would obviously have been vital to Plaintiffs' presentation of their case, only Mr. Weeks' death prejudiced Plaintiffs as to the admissions, since the matters were deemed admitted prior to his death and thus appeared to eliminate any need for Plaintiffs to, for instance, take his deposition. And since Mr. Saikhon had already passed away, Mr. Weeks' death means that Plaintiffs no longer have any access to people other than Defendants ...


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