Opinion
2:20-cv-00195-DJC-CKD (PS)
12-19-2023
THOMAS SCHMITZ, et al,, Plaintiffs, v. ADAM ASMAN, et al., Defendants.
ORDER
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE.
Plaintiffs Dianne Mallia and Thomas Schmitz, individually and as successors of interest, proceed without counsel under 42 U.S.C. § 1983. In the operative fourth amended complaint (“4AC”), plaintiffs allege constitutionally inadequate medical and mental health treatment and/or negligence by various defendants caused their son, William, to suffer harm and injuries including his death. In the motion presently before the court, defendants Dr. K. Kuich and Warden J. Lizarraga move under Federal Rule of Civil Procedure 36(b) to withdraw plaintiffs' Request for Admissions, Set One, as deemed admitted against them. (ECF No. 317.) Plaintiffs filed an opposition. (ECF No. 320.) The relevant parties are familiar with the facts underlying this dispute and the court need not repeat them. The motion is granted.
A written request to admit served under Rule 36 of the Federal Rules of Civil Procedure is “admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Fed.R.Civ.P. 36(a)(3). “A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.” Fed.R.Civ.P. 36(b). “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.” Id.
Defendants argue withdrawal of the admissions will preserve the merits of the case involving them and will not prejudice plaintiffs in any way. (ECF No. 317 at 6.) In opposition to the motion to withdraw admissions, plaintiffs do not address prejudice or preservation of the merits of the case, instead arguing the admissions should be deemed admitted because of what they describe as a lack of civility and unprofessional conduct by defense counsel.(ECF No. 320.)
This argument was, perhaps, prompted by the moving defendants' briefing, which states plaintiff Mallia has not remained civil and courteous at all times. (ECF No. 317.) The court reminds all parties of its expectation that professionalism and civility be demonstrated at all times, and that sanctions may issue for failure to adhere to this expectation.
Under the standard of Rule 36(b), “[t]he party who obtained the admission has the burden of proving that allowing withdrawal of the admission would prejudice its case.” Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995). Plaintiffs fail to meet this burden.
The prejudice contemplated by 36(b) is not simply that the party who obtained the admission will now have to convince the factfinder of the truth; rather, it relates to the difficulty a party may face in proving its case, for example by the unavailability of key witnesses in light of the delay.Sonoda v. Cabrera, 255 F.3d 1035, 1039 (9th Cir. 2001).
The timing of the present motion indicates a lack of prejudice to plaintiffs. Under the scheduling order currently in effect, non-expert discovery shall be completed by May 17, 2024. (See ECF No. 286.) There is ample time for further discovery requests. Allowing withdrawal under these circumstances also promotes the presentation of the merits of the action. Accordingly, both factors of the permissive test under Rule 36(b) are satisfied in defendants' favor.
For the reasons set forth above, IT IS HEREBY ORDERED as follows:
1. The hearing noticed to take place on January 10, 2024, is VACATED.
2. The motion by defendants Dr. K. Kuich and J. Lizarraga (ECF No. 317) to withdraw plaintiffs' Request for Admissions, Set One, as deemed admitted, is GRANTED.