United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Re: ECF 33]
BETH LABSON FREEMAN, District Judge.
This is a Federal Tort Claims Act ("FTCA") case that arises out of a slip-and-fall at a federal cemetery. Plaintiff, who was attending a family member's funeral at San Joaquin Valley National Cemetery ("SJVNC"), alleges that she fell on wet concrete that was not properly marked, sustaining injuries. She brings a claim for general negligence based on premises liability, and seeks compensatory and punitive damages. See Compl., ECF 1 at 10-12. Defendant moves for summary judgment based on the failure of Plaintiff to respond to requests for admission, resulting in the requests being deemed admitted. Defendant argues that the admissions entitle it to summary judgment. For the reasons offered below, the Court agrees, and GRANTS Defendant's motion.
A. Procedural History
Some context is necessary to understand the procedural posture of this case. Plaintiff filed suit in Monterey County Superior Court on November 7, 2013. At the time she filed her Complaint, Plaintiff was proceeding pro se. Defendant removed the action to this district and answered. See ECF 1, 3. Defendant then filed a motion to dismiss, or, in the alternative, for summary judgment, but withdrew the motion following a case management conference before Judge Lucy Koh, to whom this case was originally assigned.
This case was reassigned to the undersigned on April 17, 2014. Defendant then renewed its motion to dismiss, or, in the alternative, for summary judgment. At a July 31, 2014 case management conference between the parties, Plaintiff requested the Court grant her an extension of time in which to obtain counsel. The Court granted her a brief extension of ten days, and Defendant elected to withdraw its motion for summary judgment. See Hearing Transcript, ECF 32 at 17:13-24 (Defense Counsel: "[W]e'll withdraw the motion and re-file it after August 27th." The Court: "Then we will terminate the motion right now."). Because Plaintiff had not yet responded to Defendant's written discovery, the Court ordered Defendant to send new copies of its written discovery to Plaintiff and notice her deposition,  and informed Plaintiff of the possible adverse consequences if she once again failed to respond:
And let me tell you something that's very important. Mr. Scharf sent you requests for admissions. If you do not answer them on time, they will be deemed true. So the first one is admit that the defendant has no liability. If you don't answer that  this case will be over because he will have a one-page motion for summary judgment based on your failure to respond.
But it is very important that you respond truthfully and under oath to the discovery and at your deposition.... Because if you don't respond to the written discovery, you will lose your case; okay?
Hearing Transcript at 11:25-12:6; 20:6-11.
On July 31, 2014, the same date as the case management conference, defense counsel sent Plaintiff written discovery, see Scharf Decl., ECF 33-1 Exh. C, which included seven requests for admission. See id. Exh. A at 2. Plaintiff did not respond, and defense counsel sent Plaintiff an email on September 26, 2014, advising Plaintiff that if she did not respond to the discovery requests by October 10, 2014, Defendant would file a motion for summary judgment based on her failure to respond. See id. Exh. D. Plaintiff did not respond, and this motion followed on October 24, 2014.
Plaintiff did not timely oppose the motion, and on November 12, 2014, Defendant filed its reply. That same day, after the reply was filed, Plaintiff filed a document called "Judicial Notice in Opposition to Defendant's Untimely Cancellation of Plaintiff's Court Ordered Deposition Scheduled for November 17, 2014." See ECF 35. Plaintiff argued that the summary judgment motion was a "bogus legal maneuver" and improper. Id. at 2. She further stated that she was "unable to meet the November 10th date to provide documents to the defense due to medical and health problems that were caused by the genuine accident at the fault of the defendant." Id. at 3.
Defendant responded, stating that Plaintiff's deposition was taken off-calendar because she had failed to respond to written discovery requests. ECF 36 at 2. Defense counsel further stated that Plaintiff had twice continued the deposition, first to September 29, 2014 and then again to November 17, 2014. See Scharf Decl., ECF 33-1 at ¶ 8.
Defendant's motion was calendared for March 26, 2015. On March 13, 2015, Plaintiff filed a proposed substitution of counsel and a set of verified answers to Defendant's requests for admission, approximately seven months untimely. The Court approved the substitution of counsel. See ECF 40. Then, on March 24, 2015, two days before the hearing on the motion was scheduled, Plaintiff's counsel requested the hearing be continued because he was unavailable. Defendant objected. See ECF 42. Because Plaintiff did not immediately inform the Court of his unavailability following his substitution as counsel, and because he provided no reason why he was unavailable except that he had a scheduling conflict and would be in southern California, the Court denied the request. ...