(PS) Schmitz v. Asman ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS SCHMITZ, et al,, No. 2:20-cv-00195-DJC-CKD (PS) 12 Plaintiffs, 13 v. ORDER 14 ADAM ASMAN, et al., 15 Defendants. 16 17 Plaintiffs Dianne Mallia and Thomas Schmitz, individually and as successors of interest, 18 proceed without counsel under 42 U.S.C. § 1983. In the operative fourth amended complaint 19 (“4AC”), plaintiffs allege constitutionally inadequate medical and mental health treatment and/or 20 negligence by various defendants caused their son, William, to suffer harm and injuries including 21 his death. In the motion presently before the court, defendants Dr. K. Kuich and Warden J. 22 Lizarraga move under Federal Rule of Civil Procedure 36(b) to withdraw plaintiffs’ Request for 23 Admissions, Set One, as deemed admitted against them. (ECF No. 317.) Plaintiffs filed an 24 opposition. (ECF No. 320.) The relevant parties are familiar with the facts underlying this dispute 25 and the court need not repeat them. The motion is granted. 26 A written request to admit served under Rule 36 of the Federal Rules of Civil Procedure is 27 “admitted unless, within 30 days after being served, the party to whom the request is directed 28 serves on the requesting party a written answer or objection addressed to the matter and signed by 1 the party or its attorney.” Fed. R. Civ. P. 36(a)(3). “A matter admitted under this rule is 2 conclusively established unless the court, on motion, permits the admission to be withdrawn or 3 amended.” Fed. R. Civ. P. 36(b). “Subject to Rule 16(e), the court may permit withdrawal or 4 amendment if it would promote the presentation of the merits of the action and if the court is not 5 persuaded that it would prejudice the requesting party in maintaining or defending the action on 6 the merits.” Id. 7 Defendants argue withdrawal of the admissions will preserve the merits of the case 8 involving them and will not prejudice plaintiffs in any way. (ECF No. 317 at 6.) In opposition to 9 the motion to withdraw admissions, plaintiffs do not address prejudice or preservation of the 10 merits of the case, instead arguing the admissions should be deemed admitted because of what 11 they describe as a lack of civility and unprofessional conduct by defense counsel.1 (ECF No. 12 320.) 13 Under the standard of Rule 36(b), “[t]he party who obtained the admission has the burden 14 of proving that allowing withdrawal of the admission would prejudice its case.” Hadley v. United 15 States, 45 F.3d 1345, 1348 (9th Cir. 1995). Plaintiffs fail to meet this burden. 16 The prejudice contemplated by 36(b) is not simply that the party who obtained the admission will now have to convince the factfinder of 17 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 18 of the delay. 19 Sonoda v. Cabrera, 255 F.3d 1035, 1039 (9th Cir. 2001). 20 The timing of the present motion indicates a lack of prejudice to plaintiffs. Under the 21 scheduling order currently in effect, non-expert discovery shall be completed by May 17, 2024. 22 (See ECF No. 286.) There is ample time for further discovery requests. Allowing withdrawal 23 under these circumstances also promotes the presentation of the merits of the action. Accordingly, 24 both factors of the permissive test under Rule 36(b) are satisfied in defendants’ favor. 25 //// 26 1 This argument was, perhaps, prompted by the moving defendants’ briefing, which states 27 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 28 times, and that sanctions may issue for failure to adhere to this expectation. 1 For the reasons set forth above, IT IS HEREBY ORDERED as follows: 2 1. The hearing noticed to take place on January 10, 2024, is VACATED. 3 2. The motion by defendants Dr. K. Kuich and J. Lizarraga (ECF No. 317) to withdraw 4 | plaintiffs’ Request for Admissions, Set One, as deemed admitted, is GRANTED. 5 || Dated: December 19, 2023 Cad Kt | (£4 (g— 6 CAROLYN K DELANEY 7 UNITED STATES MAGISTRATE JUDGE 8 9 cchmitz20ev195.36b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28