United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION TO AMEND
MITCHELL D. DEMBIN, UNITED STATES MAGISTRATE JUDGE
this Court is Defendants' Motion to Withdraw and Amend
Deemed Admissions filed on April 28, 2017. (ECF No. 51).
Plaintiffs filed their opposition on May 17, 2017. (ECF No.
56). Defendants filed their reply on May 25, 2017. (ECF No.
57). As provided herein, Defendants' motion is GRANTED.
Defendants may withdraw their previously deemed admissions
and respond to Plaintiff's Request for Admissions within
fourteen (14) days of the entry of this Order.
36, Fed. R. Civ. P., governs requests for admissions. The
Rule allows for a party to request that another party admit
the truth of specific facts, application of law to fact,
opinions about either, and the genuineness of certain
documents. Rule 36(a)(1). A party receiving a request for
admission must answer within 30 days or the matter is deemed
admitted. Rule 36(a)(3).
the matter is admitted under the Rule, a court may allow the
admission to be withdrawn or amended upon motion. Rule 36(b).
The Rule provides that 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.
unfortunate situation derives from the failure of
Defendants' former attorney, Matthew Elstein, to
adequately and competently represent his clients. Once Mr.
Elstein's negligence and prevarications became known,
Defendants obtained new counsel who described Mr.
Elstein's conduct as “grossly negligent” in
seeking relief from the Scheduling Order in this case.
ECF No. 39-1 at 4:2-4). Specifically, Defendants alleged that
1) led Defendants to believe that [Elstein] would file a
motion to dismiss Plaintiff's claims, but never did;
2) did not inform Defendants that Plaintiffs filed a motion
for summary adjudication; 3) missed the expert disclosure
4) misled Defendants that the expert disclosure deadlines had
been extended when they had not; and,
5) misled Defendants that the time to take percipient and
expert witness depositions had been extended when it had not.
(Id.). It also appears that Mr. Elstein failed to
respond to Plaintiff's second set of interrogatories.
(ECF No. 57-2). The issue in the instant motion concerns
whether or not Mr. Elstein responded to Plaintiff's
requests for admissions and, regardless, whether Defendants