Del Mar Land Partners LLC v. Stanley Consultants Incorporated

Filing 79

ORDER that Plaintiff's Motion to Accept Responses to Requests for Admission (Doc. 67 ) is granted. IT IS FURTHER ORDERED that the defendant's Motion to Strike Unauthorized Declaration of Bruce Silver Pursuant to F.R.Cp. 12(f) and Local R ules of Civil Procedure 7.2(m) (Doc. 71 ) is denied without prejudice as currently being moot. IT IS FURTHER ORDERED that the defendant's Motion for Summary Judgment as to Plaintiff's Amended Complaint Pursuant to FRCP 56 (Doc. 50 ) and Motion for Summary Judgment as to Defendant/Counterclaimant's Counterclaim Pursuant to FRCP 56 (Doc. 56 ) are both denied without prejudice. IT IS FURTHER ORDERED that the deadline for filing motions for summary judgment is extended to December 21, 2012. Signed by Senior Judge Paul G Rosenblatt on 11/5/2012.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Del Mar Land Partners, LLC,
Plaintiff,

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vs.
Stanley Consultants, Inc.,
Defendant.

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No. CV-11-08013-PCT-PGR

ORDER

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Among the motions pending before the Court is plaintiff Del Mar Land

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Partners, LLC’s Motion to Accept Responses to Requests for Admission (Doc. 67).

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Having reviewed the parties’ memoranda in light of the relevant record, the Court

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finds that the motion should be granted.

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Background

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Defendant Stanley Consultants, Inc. served its Requests for Admissions (Set

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One) (“RFA”) on the plaintiff on February 24, 2012 by hand delivery to an employee

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of the plaintiff’s counsel. Pursuant to Fed.R.Civ.P. 36(a)(3) and Fed.R.Civ.P.

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6(a)(1)(C), the plaintiff’s response to the RFA was due on March 26, 2012.1 On the

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The RFA consisted of 87 requests for admission. Also due on that same
date were the plaintiff’s responses to the defendant’s 39 document requests and 25

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March 26th due date, the plaintiff’s counsel requested a one-day extension because

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it had been discovered that the response had been mistakenly calendared by his

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office to be due on March 27, 2012. The defendant’s counsel immediately granted

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an extension until March 27th at 5:00 p.m. The plaintiff’s counsel both emailed and

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mailed a 42-page response to the RFA on March 27th; counsel’s emailed response

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showed that the email was transmitted at 5:08 p.m., although the plaintiff’s counsel

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has stated in a declaration that the time shown on the email was “likely off by several

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minutes.” The defendant has not disputed the correctness of the transmission time

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noted on the email, and in fact argues that the 5:08 transmittal time should be

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accepted by the Court as correct. The plaintiff contends, without any contradiction

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from the defendant, that the defendant never mentioned to it any problem with the

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timeliness of its RFA response until the defendant filed its two pending motions for

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summary judgment almost two months later.

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Pursuant to Rule 36(a)(3), a request for admission is deemed conclusively

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admitted if the request is not timely responded to. The defendant argues in its

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pending summary judgment motions directed at the plaintiff’s Amended Complaint

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and at the defendant’s Counterclaim, both of which motions were filed on May 18,

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2012, that the motions should be granted in large part because the plaintiff’s failure

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to respond to the RFA by the 5:00 p.m. extension deadline on March 27th means that

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the plaintiff has admitted all 87 requests in the RFA and consequently cannot

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establish the remaining claims in its Amended Complaint and cannot defeat the

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Counterclaim. In its responses to the summary judgment motions, which it filed on

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June 18, 2012, the plaintiff argues in part that the motions should be resolved on

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their merits, not on the basis of deemed admissions that were served on the

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special interrogatories.
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defendant on the date they were due, albeit a few minutes later than the defendant’s

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extended deadline. The plaintiff reiterated this argument in its Motion to Accept

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Responses to Requests for Admission, which it filed on July 3, 2012, the same day

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the defendant filed its replies in support of it summary judgment motions.

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The plaintiff has moved the Court, pursuant to Fed.R.Civ.P. 36(b), to grant it

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relief from the deemed admissions by authorizing their withdrawal. As conclusorily

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mentioned in the plaintiff’s motion, the Court has the discretion to grant such relief

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if (1) the withdrawal of the admissions ”would promote the presentation of the merits

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of the action” and (2) the Court “is not persuaded that [the withdrawal] would not

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prejudice the requesting party in maintaining or defending the actions on its merits.”

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Rule 36(b). The Court, in the exercise of its discretion, concludes that the motion

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should be granted because both requirements of Rule 36(b) are satisfied here.2

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The first prong of Rule 36(b) is met if the Court is satisfied that upholding the

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admissions would practically eliminate any presentation of the merits of the case.

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Conlon v. United States, 474 F.3d 616, 621 (9th Cir.2007); Hadley v. United States,

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45 F.3d 1345, 1348 (9th Cir. 1995). Given the defendant’s contentions in its

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summary judgment motions, the Court concludes that this prong has been met since

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the admissions at issue go to the core of the dispute between the parties and the

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denial of the requested withdrawal would in large part resolve the dispute in the

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defendant’s favor without consideration of the merits of the case.

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The second prong of Rule 36(b) is met if the party relying on the deemed

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admissions, here the defendant, fails to establish that the withdrawal of the

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While the Court agrees with the defendant that the plaintiff’s Rule 36(b)
motion could have, and should have, been filed in a more timely manner, the Court
cannot conclude under the current record that the timing of the motion is by itself a
sufficient reason to deny it.
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admissions would prejudice that party’s case. Hadley, 45 F.3d at 1348. While the

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defendant argues that it will be substantially prejudiced if the admissions are allowed

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to be withdrawn, the Court is not persuaded. The prejudice that the defendant

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asserts it will undergo, which is basically that it understood that the plaintiff had

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made the admissions when it took post-admissions depositions, and that it is relying

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on the deemed admissions “for purposes of its motion for summary judgment and

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trial, and is now unable to conduct further written discovery, notice further

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depositions, or file any further motions in this case” is insufficient because the

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prejudice that the Court must focus on under this prong is “the prejudice that the

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nonmoving party would suffer at trial.” Conlon, 474 F.3d at 623. The rule’s prejudice

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requirement is not met merely because “the party who obtained the admission will

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now have to convince the factfinder of its truth. Rather, it relates to the difficulty a

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party may face in proving its case, e.g., caused by the unavailability of key

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witnesses, because of the sudden need to obtain evidence with respect to the

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questions previously deemed admitted.” Hadley, 45 F.3d at 1348 (internal quotation

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marks omitted). What the defendant has not shown is how its ability to present its

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defense at trial will be so adversely affected that the Court should not permit the

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admissions to be withdrawn.3 See Conlon, 474 F.3d at 624 (Court concluded that

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reliance on a deemed admission in preparing a motion for summary judgment does

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not constitute prejudice for Rule 36(b) purposes, and that a lack of discovery, without

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more, does not constitute prejudice because the prejudice must relate to the difficulty

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a party may face in proving its case at trial.)

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Furthermore, the Court is authorized to consider factors other that Rule 36(b)’s

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While the defendant asserts that the trial of this action is now “imminent,”
the Court notes that there is no trial date currently set.
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two-pronged test in determining whether to exercise its discretion, including “whether

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the moving party can show good cause for the delay” in responding to the requests

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for admission. This factor has also been met because the plaintiff has shown,

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through the uncontradicted declaration of its counsel, that its counsel inadvertently

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miscalendared the RFA response time by one day, that its counsel and his staff

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worked diligently to comply with the defendant’s extended 5:00 p.m. deadline on

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May 27, 2012, and that the counsel’s staff had been instructed to mail and email the

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plaintiff’s responses by the 5:00 p.m. deadline. The defendant does not argue that

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its counsel did not receive the emailed RFA response on May 27th, or that the delay

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in transmitting the response was anything more than approximately eight minutes.

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Although the Court understands that the defendant has the right to zealously

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litigate its position by relying on a strict interpretation of Rule 36(a), the Court

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nevertheless notes that it should not be forced to expend its limited resources

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adjudicating de minimis and technical violations of the Federal Rules of Civil

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Procedure. As a discovery delay, the eight minutes at issue here are about as

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insignificant and trifling as is possible, and the Court declines to apply Rule 36(a) in

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the inordinately rigid manner that the defendant advocates. Cf. Foman v. Davis, 371

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U.S. 178, 181-82 (1962) (“It is too late in the day and entirely contrary to the spirit

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of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on

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the basis of such mere technicalities. The Federal Rules reject the approach that

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pleading is a game of skill in which one misstep by counsel may be decisive to the

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outcome and accept the principle that the purpose of pleading is to facilitate a proper

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decision on the merits.”); see also, Reid Bros. Logging Co. v. Ketchikan Pulp Co.,

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699 F.2d 1292, 1305 (9th Cir.1983) (Court, in rejecting a formalistic and literal

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reading of Fed.R.Civ.P. 38(d), noted that the spirit of the Federal Rules of Civil

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Procedure is that “technical requirements are abolished and judgments be founded

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on facts and not on formalistic defects” and that a district court may properly look

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“beyond the facial language and appl[y] the Rules in a manner consistent with their

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underlying purpose.”)

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Because the defendant’s two pending summary judgment motions, with their

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accompanying statements of facts, are heavily dependent on the entirety of the RFA

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being deemed admitted, the Court concludes that the most judicially economical

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course for it to take is to deny both summary judgment motions without prejudice to

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the defendant redrafting and refiling them in light of the plaintiff’s responses to the

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RFA. Therefore,
IT IS ORDERED that Plaintiff’s Motion to Accept Responses to Requests for

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Admission (Doc. 67) is granted.

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IT IS FURTHER ORDERED that the defendant’s Motion to Strike

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Unauthorized Declaration of Bruce Silver Pursuant to F.R.Cp. 12(f) and Local Rules

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of Civil Procedure 7.2(m) (Doc. 71) is denied without prejudice as currently being

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moot.

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IT IS FURTHER ORDERED that the defendant’s Motion for Summary

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Judgment as to Plaintiff’s Amended Complaint Pursuant to FRCP 56 (Doc. 50) and

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Motion for Summary Judgment as to Defendant/Counterclaimant’s Counterclaim

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Pursuant to FRCP 56 (Doc. 56) are both denied without prejudice.

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IT IS FURTHER ORDERED that the deadline for filing motions for summary
judgment is extended to December 21, 2012.
DATED this 5th day of November, 2012.

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