Grady et al v. Federal Deposit Insurance Corporation et al

Filing 120

ORDER, the motion for summary judgment 85 is denied; the motion to strike 99 is denied; the motion for summary disposition 109 is denied. Signed by Judge James A Teilborg on 12/13/12.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiffs,
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vs.
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Bank of Elmwood; Elmwood Financial)
Corporation; Jonathan Levin; Sarah Levin,)
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Defendants.
_________________________________ )
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Tri City National Bank,
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Counterclaimant,
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vs.
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Michael Grady and Jennifer Grady,
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Counterdefendant.
_________________________________ )
The Federal Deposit Insurance)
Corporation as Receiver for Bank of)
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Elmwood,
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Intervenor.
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Michael Grady; Jennifer Grady,

No. CV 11-2060-PHX-JAT
ORDER

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On July12, 2012, the Levin Defendants claim to have sent Plaintiffs requests for

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admissions. Plaintiffs claim that they never received these requests for admissions. Several

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motions are now pending before the Court relating to this issue.

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The Levin Defendants have moved for summary judgment on the premise that

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Plaintiffs failure to timely respond to the requests for admissions cause those requests to be

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deemed admitted. Plaintiffs oppose summary judgment claiming those facts are not

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admitted; and, in addition to responding to the motion for summary judgment, Plaintiffs

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responded to the requests for admissions.

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Thereafter the Levin Defendants moved to strike the responses to the requests for

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admissions as untimely and have moved for summary disposition of the motion to strike

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claiming Plaintiffs have not opposed the motion to strike. Plaintiff opposed summary

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disposition arguing that they fully briefed this issue in their opposition to the motion for

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summary judgment.

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The Levin Defendants main argument for not allowing Plaintiffs’ late responses to the

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requests for admissions is that Plaintiffs’ counsel’s avowal that he did not receive them is not

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credible. Further the Levin Defendants argue that their July 25, 2012 notice of service put

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Plaintiffs on inquiry notice that they were supposed to have been served with requests for

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admissions back on July 12, 2012.

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Given (1) that this Court cannot conclude that the July 25, 2012 notice of service is

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equal to service on July 12, 2012, and (2) that this Court has no basis to conclude that

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Plaintiffs’ counsel’s avowal is false; the Court will allow Plaintiffs’ late responses to the

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requests for admissions. Therefore,

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IT IS ORDERED that the motion for summary judgment (Doc. 85) is denied.

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IT IS FURTHER ORDERED that the motion to strike (Doc. 99) is denied.

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IT IS FURTHER ORDERED that the motion for summary disposition (Doc. 109)

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is denied.
DATED this 13th day of December, 2012.

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