Plum Healthcare Group, LLC et al v. OneBeacon Professional Insurance et al

Filing 60

ORDER granting 51 Defendants' Motion to Withdraw and Amend Deemed Admissions. As provided in the attached Order, Defendants may withdraw and amend their previously deemed admissions within fourteen (14) days of the entry of this Order. Signed by Magistrate Judge Mitchell D. Dembin on 5/26/17. (Dembin, Mitchell)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

7
8
9
10
11
12

Case No.: 15cv2747-W-MDD

PLUM HEALTHCARE GROUP,
LLC, et al.,
Plaintiffs,
v.
ONE BEACON PROFESSIONAL
INSURANCE, et al.,

13

ORDER GRANTING
DEFENDANTS’ MOTION TO
AMEND ADMISSIONS
[ECF NO. 51]

Defendants.

14
15
16

Before this Court is Defendants’ Motion to Withdraw and Amend

17

Deemed Admissions filed on April 28, 2017. (ECF No. 51). Plaintiffs filed

18

their opposition on May 17, 2017. (ECF No. 56). Defendants filed their reply

19

on May 25, 2017. (ECF No. 57). As provided herein, Defendants’ motion is

20

GRANTED. Defendants may withdraw their previously deemed admissions

21

and respond to Plaintiff’s Request for Admissions within fourteen (14) days of

22

the entry of this Order.

23

LEGAL STANDARD

24

Rule 36, Fed. R. Civ. P., governs requests for admissions. The Rule

25

allows for a party to request that another party admit the truth of specific

26

facts, application of law to fact, opinions about either, and the genuineness of

27

certain documents. Rule 36(a)(1). A party receiving a request for admission
1
15cv2747-W-MDD

1

must answer within 30 days or the matter is deemed admitted. Rule 36(a)(3).

2

Once the matter is admitted under the Rule, a court may allow the admission

3

to be withdrawn or amended upon motion. Rule 36(b). The Rule provides

4

that

5

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.

6
7
8
9

Rule 36(b).
DISCUSSION

10

This unfortunate situation derives from the failure of Defendants’

11

former attorney, Matthew Elstein, to adequately and competently represent

12

his clients. Once Mr. Elstein’s negligence and prevarications became known,

13

Defendants obtained new counsel who described Mr. Elstein’s conduct as

14

“grossly negligent” in seeking relief from the Scheduling Order in this case.

15

(See ECF No. 39-1 at 4:2-41). Specifically, Defendants alleged that Mr.

16

Elstein:

17

1) led Defendants to believe that [Elstein] would file a motion to
dismiss Plaintiff’s claims, but never did;

18
19

2) did not inform Defendants that Plaintiffs filed a motion for
summary adjudication;

20
21

3) missed the expert disclosure deadlines;

22

4) misled Defendants that the expert disclosure deadlines had been
extended when they had not; and,

23
24

5) misled Defendants that the time to take percipient and expert
witness depositions had been extended when it had not.

25
26
27

1

The Court will refer to ECF pagination throughout, rather than original pagination.
2
15cv2747-W-MDD

1

(Id.). It also appears that Mr. Elstein failed to respond to Plaintiff’s second

2

set of interrogatories. (ECF No. 57-2). The issue in the instant motion

3

concerns whether or not Mr. Elstein responded to Plaintiff’s requests for

4

admissions and, regardless, whether Defendants should be given leave to

5

withdraw and amend deemed admissions.

6

Mr. Elstein declares that he placed the response to Plaintiff’s request

7

for admissions in the mail room at his former firm. (ECF No. 48-2).

8

Defendants argue, based upon Mr. Elstein’s Declaration, that the

9

presumption of receipt applies and has not been overcome. (ECF No. 51-1 at

10

4). The Court finds that Mr. Elstein is not credible and will not base its

11

ruling on Mr. Elstein’s statements.

12

The issue, therefore, is simply whether allowing the withdrawal and

13

amendment would “promote the presentation of the merits of the action” and

14

the extent to which Plaintiff would be prejudiced. See Rule 36(b), Fed. R. Civ.

15

P. The matters deemed admitted are quite damaging to Defendants; for

16

example, Request for Admission No. 8 asks Defendants to admit that they

17

should have provided a legal defense to Plaintiff in the lawsuit causing this

18

dispute. (ECF No. 48-2 at 9-10). That is the ultimate issue in this lawsuit.

19

There seems little question, therefore, that allowing withdrawal and

20

amendment would promote the presentation of the merits. The question then

21

is the extent of the prejudice to Plaintiff if the admissions are withdrawn and

22

amended.

23

Plaintiff has relied on the deemed admissions in its response to

24

Defendants’ pending motion for summary judgment. (See ECF No. 47 at 12-

25

13). Plaintiff also responded to the merits of the matters that it asserts are

26

deemed admitted. (ECF No. 47). Although some prejudice flows to Plaintiff,

27

the Court finds that it would be fundamentally unfair to Defendants to have
3
15cv2747-W-MDD

1

the deemed admissions stand under these circumstances. Although it is

2

correct, as this Court previously has stated in this case, that a client

3

ordinarily is responsible for his counsel’s neglectful or negligent acts, here the

4

consequences to Defendants are severe enough to overcome any prejudice to

5

Plaintiff. (See ECF No. 50 at 4).

6

CONCLUSION

7

Defendants’ motion to withdraw and amend deemed admissions is

8

GRANTED. Defendants may withdraw their previously deemed admissions

9

and respond to Plaintiff’s Request for Admissions within fourteen (14) days of

10
11
12

the entry of this Order.
IT IS SO ORDERED.
Dated: May 26, 2017

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
4
15cv2747-W-MDD