United States District Court, D. Arizona
Honorable Jennifer G. Zipps United states District Judge
before the Court is Plaintiffs' Motion in Limine #1.
(Doc. 88.) Plaintiffs request that the Court preclude
Defendants from introducing evidence and argument
contradicting the admission of each of Plaintiffs'
February 1, 2018 Requests for Admission (RFA) by
Defendants. Defendants oppose the motion in part.
(Doc. 105.) At the final pretrial conference on January 17,
2019, the Court granted the motion in part, denied it in
part, and reserved ruling as to RFA 8, 16, 17, 22, 23, 26,
27, 35 and 38. As to these RFA, the Court will grant the
were served on Defendants on February 1, 2018. (Doc. 88, Ex.
1 at 11.) Defendants' responses were due 30 days after
date of service. Fed.R.Civ.P. 36(a)(3). On March 8, 2018, on
Defendants' request, the parties agreed to an extension
until March 12, 2018. (Doc. 53-4 at 13.) No responses were
forthcoming despite Plaintiffs' email inquiries about
responses to outstanding discovery requests. (See
Doc. 53-4.) Discovery closed April 30, 2018. (Doc. 45.) On
June 7, 2018, the day the parties attended an unsuccessful
settlement conference, Plaintiffs' counsel sent an email
to defense counsel stating that the RFA “are deemed
admitted.” (Doc. 53-4, Ex. D.) Defendants did not
respond to the RFA. In Defendants' response to the
instant motion in limine, they indicate their responses to
most of the RFA.
January 17, 2019 final pretrial conference, counsel for
Defendants explained that the failure to respond to
Plaintiffs' RFA was the fault of his office and not
Defendants, and that he is unable to provide a better
explanation for the oversight. Defense counsel conceded that
his explanation does not constitute excusable
Defendants did not respond to Plaintiffs' RFA, the RFA
are automatically deemed admitted under Rule 36(a)(3).
See Fed. R. Civ. P. 36(a)(3) (a matter is deemed
admitted unless, within 30 days after service of the request,
the party to whom the request is directed serves a written
answer or objection). “Any matter thus admitted is
conclusively established unless the court on motion permits
withdrawal or amendment of the admission.” Hadley
v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995);
see also Rule 36(b). Rule 36(b) provides in
Subject to Rule 16(e), 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.
Fed. R. Civ. P. 36(b). Rule 36(b) permits the district court
to exercise discretion to grant relief from an admission made
under Rule 36(a) only when: “(1) the presentation of
the merits of the action will be subserved, and (2) the party
who obtained the admission fails to satisfy the court that
withdrawal or amendment will prejudice that party in
maintaining the action or defense on the merits.”
Conlon v. United States, 474 F.3d 616, 621 (9th Cir.
2007) (internal quotation marks and citation omitted).
first factor “is satisfied when upholding the
admissions would practically eliminate any presentation of
the merits of the case.” Hadley, 45 F.3d at
1348. As to the second factor, “[t]he party relying on
the deemed admission has the burden of proving
prejudice.” Conlon, 474 F.3d at 622.
The prejudice contemplated by Rule 36(b) is not simply that
the party who obtained the admission will now have to
convince the factfinder of its truth. Rather, it relates to
the difficulty a party may face in proving its case, e.g.,
caused by the unavailability of key witnesses, because of the
sudden need to obtain evidence with respect to the questions
previously deemed admitted.
Id. (internal quotation marks and citations
omitted). The focus is on the prejudice that the nonmoving
party would suffer at trial. Id. at 623.
district court's failure to consider these factors
constitutes an abuse of discretion. Id. at 625.
However, even if the movant satisfies Rule 36(b), the court
is not required to grant relief. Id. at 624-25
(“The text of Rule 36(b) is permissive.”). If
Rule 36(b)'s two-part test is satisfied, the court in
determining whether to grant relief may also consider other
factors, including whether Defendants can show good cause for
the delay and whether they appear to have a strong case on
the merits. Id. at 625. Here, the Court concludes
that Defendants have not stated good cause for the failure to
consideration of the parties' argument and application of
Rule 36(b)'s two-pronged test, the Court will grant
Plaintiffs' motion to deem the RFA at issue admitted and
to preclude Defendants from introducing evidence and argument
contradicting the admissions. In many instances, Defendants
failed to show that their deemed admission precludes any
presentation of the merits of the case. In those few where it
could be argued that Defendants made such a showing, the
Court exercises its discretion to deem the matters admitted
in light of Defendants' lack of showing of good cause for
their failure to respond. Additionally, to the extent the
Court has ...