McNamara v. Hallinan et al

Filing 100

ORDER Re: 92 Motion. Motion Hearing set for 9/19/2019 at 01:00 PM in LV Courtroom 3C before Magistrate Judge Nancy J. Koppe. Signed by Magistrate. Declaration due by 9/6/19.Judge Nancy J. Koppe on 8/23/2019. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THOMAS W. MCNAMARA,

Case No.: 2:17-cv-02966-GMN-NJK

Plaintiff(s),

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Order

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v.

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CHARLES M. HALLINAN, et al.,

[Docket No. 92]
Defendant(s).

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Pending before the Court is Defendants’ motion to withdraw admissions. Docket No. 92.

17 The Court SETS a hearing on that motion for 1:00 p.m. on September 19, 2019.
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In addition, defense counsel make a variety of factual representations in the motion that are

19 not supported by declaration. For example, the motion represents that Mr. Hallinan’s responses to
20 the requests for admission were timely prepared. Mot. at 4. The motion also insinuates (but does
21 not state) that counsel believed those responses had been served in a timely manner. See id.; see
22 also id. at 1 (“Mr. Hallinan and HCC thought they had either timely responded or had an extension
23 to respond”).1 The motion also represents that counsel believed an extension had been granted by
24 opposing counsel for Hallinan Capital Corp.’s responses. See id. at 5. The Court hereby ORDERS
25 defense counsel to file a proper declaration made in compliance with 28 U.S.C. § 1746 attesting
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As written, the motion refers to the actions and understanding of Mr. Hallinan and
Hallinan Capital Corp. Given the context of this motion, the Court assumes that these were
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1 in detail to the circumstances identified above. That declaration must state with particularity: (1)
2 the date on which Mr. Hallinan’s responses to the requests for admission were “prepared,” (2) the
3 date on which Mr. Hallinan’s responses to the requests for admission were finalized for service,
4 (3) the date on which Mr. Hallinan’s responses to the requests for admission were first signed, (4)
5 whether counsel believed Mr. Hallinan’s responses had been served in a timely manner, (5) if so,
6 the basis for counsel’s belief that Mr. Hallinan’s responses had been served in a timely manner,
7 (6) whether counsel believed an extension had been granted for Hallinan Capital Corp.’s responses,
8 and, (7) if so, the basis for counsel’s belief that an extension had been granted for Hallinan Capital
9 Corp.’s responses. This declaration must be filed by September 6, 2019.2
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Lastly, the moving papers reference Mr. Hallinan’s appeal in the Third Circuit. See Mot.

11 at 4. In reviewing the Third Circuit docket, it appears that appeal has been taken under submission
12 without a hearing. Once the panel renders a decision, a joint status report attaching that decision
13 shall be filed within 7 days.
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IT IS SO ORDERED.

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Dated: August 23, 2019
______________________________
Nancy J. Koppe
United States Magistrate Judge

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Even where the two-part test has been satisfied to allow withdrawal of admissions,
26 providing for such relief remains a discretionary decision for the Court that may include
consideration of the reason for the delay. Conlon v. United States, 474 F.3d 616, 624-25 (9th Cir.
27 2007). In addition to being prepared to argue the two-part test itself, counsel shall be prepared at
the hearing to argue whether the Court should exercise its discretion to allow withdrawal in the
28 event the test has been satisfied.
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