Jabin v. Robles et al

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
ERNEST and MARY ROBLES, No. 05-14541
Debtor(s).
______________________________________/
STANLEY JABIN,
Plaintiff(s),
v. A.P. No. 06-1051
ERNEST and MARY ROBLES,
Defendant(s).
_______________________________________/
Memorandum on Relief From Default
_________________
Debtors and defendants Ernest and Mary Robles filed their Chapter 7 petition on October 16,
2005. Plaintiff Stanley Jabin then commenced this adversary proceeding to determine the
dischargeability of a debt for $130,000.00 which he alleged he invested in a joint venture with Robles
and which Robles converted.
On May 14, 2006, Jabin served a set of requests for admission, asking Robles to admit the
essential elements of his case. Robles made no response to the requests whatsoever. On June 30, 2006,
Entered on Docket
September 01, 2006
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 06-01051 Doc# 20 Filed: 09/01/06 Entered: 09/01/06 15:24:12 Page 1 of 3

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1There is no evidence whatsoever of excusable neglect. Robles’ counsel started out by blaming
Jabin’s counsel. He now admits that Jabin’s counsel did nothing wrong, leaving him with no excuse at
all.
2For reasons which remain a mystery to the court, three days after the summary judgment motion
had been heard and granted Robles noticed a hearing on his never-before-filed opposition to the
summary judgment motion. In it, Robles admits that he and Jabin were joint venturers in a real estate
development and that without consulting Jabin he disposed of the joint venture property to a business
associate. Far from stating a meritorious defense, this comes close to admitting a nondischargeable debt.
See In re Short, 818 F.2d 693 (9th Cir. 1987).
2
Jabin filed a motion for summary judgment, relying largely on the requests for admission which were
deemed admitted pursuant to FRCP 36(b).
Pursuant to Local Bankruptcy Rule 7007-1(b), Robles’ response to the summary judgment motion
was due on July 14, 2006. Robles filed nothing at all until July 21, 2006, when he filed a motion seeking
to “withdraw” responses which had never been filed. No other response to the motion for summary
judgment was filed. Since Robles had not sought any sort of order shortening time and since his motion
did not give sufficient notice even if the court construed it as a counter-motion, the court granted
summary judgment. However, it stayed its order for 30 days to give Robles a chance to seek relief from
default. Robles only re-noticed his request to withdraw the never-given responses to the requests for
admission. That motion is now before the court.
The court begins by noting that this matter has progressed beyond a mere failure to file responses
to requests for admission; summary judgment has been granted. Robles has asked the court only to be
excused for his failure to respond to the requests for admission. He has not sought relief from the order
granting summary judgment. Accordingly, he has produced no evidence of either excusable neglect1 or a
meritorious defense.2
Robles’ counsel has been very negligent. He has made numerous procedural missteps and his
attitude towards Jabin’s summary judgment motion was cavalier, arrogant and wrong. While the court
notes that it has the discretion under FRCP 36(b) to allow responses even at this late date, as Jabin has
not established the sort of prejudice necessary to bar such relief, the court declines to grant relief for
Case: 06-01051 Doc# 20 Filed: 09/01/06 Entered: 09/01/06 15:24:12 Page 2 of 3

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several reasons.
First, there is no strong indication of an injustice. While the court of course has sympathy for
Robles’ health problems, it appears from his own declaration that he breached his fiduciary duties to his
partner and accordingly owes Jabin a nondischargeable debt. To the extent Robles has a viable defense
that the court does not see, it is far more just that he recover on a malpractice claim against his counsel
than put Jabin through the expense of a trial at this late date. Trial is set for a mere 12 days from today,
and would have to be vacated and the parties start from scratch if the court were to grant the motion.
Moreover, the alternative to denying the motion would be to set further hearings on how much is
necessary to compensate Jabin for the summary judgment motion and responding to the matters heard
today. The amount necessary to put Jabin back in the same position he would have been in if Robles had
acted properly would be a significant percentage of the total damages. This is not a simple matter of
allowing late responses, but was compounded by a willful failure to promptly seek relief.
For the foregoing reasons, the motion to withdraw admissions will be denied, save in one
respect. The court is not convinced, notwithstanding the admissions, that the damages sought beyond
Jabin’s initial $130,000.00 investment are nondischargeable. If Jabin is content with a nondischargeable
judgment in this amount, he may submit a form of judgment. If he seeks judgment in a higher amount, he
shall obtain a date for a hearing on damages and give notice of it. At said hearing, the court may allow
Robles to withdraw some admissions relating to damages beyond the $130,000.00 investment.
Counsel for Jabin shall submit an appropriate form of order.
Dated: September 1, 2006
SAlan Jaroslovsky
U.S. Bankruptcy Judge
Case: 06-01051 Doc# 20 Filed: 09/01/06 Entered: 09/01/06 15:24:12 Page 3 of 3