United States v. 2007-01-16 | 05-15238 | CONLON VUSA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 MICHAEL J. CONLON, No. 05-15238
Plaintiff-Appellant, D.C. No.
v. CV-01-00700-DWH  (VPC)UNITED STATES OF AMERICA,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the District of Nevada
David W. Hagen, District Judge, Presiding
Argued and Submitted
October 16, 2006—San Francisco, California
Filed January 16, 2007
Before: Susan P. Graber, M. Margaret McKeown, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
627

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COUNSEL
James André Boles, Reno, Nevada, for the plaintiff-appellant.
Greg Addington, Assistant United States Attorney, District of
Nevada, Reno, Nevada, for the defendant-appellee.
OPINION
TALLMAN, Circuit Judge:
Appellant Michael J. Conlon appeals the district court’s
entry of summary judgment against him under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-
630 CONLON v. UNITED STATES

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2680. Conlon failed to respond to the government’s Request
for Admissions within the thirty-day time frame set forth in
Federal Rule of Civil Procedure 36(a). Consequently, the
United States by letter deemed its Request for Admissions
admitted, and the government relied on those admissions
when seeking summary judgment. We conclude that the dis-
trict court did not abuse its discretion when it denied Conlon’s
motion to withdraw under Rule 36(b), and we affirm the dis-
trict court’s entry of summary judgment. We are satisfied that
the district court conducted an appropriate analysis under
Rule 36, properly considering both the factors elucidated in
the rule, and that it did not clearly err in concluding that the
government’s case would have been significantly prejudiced
by the withdrawal of Conlon’s sweeping admissions on the
eve of trial.
I
In 1986, Conlon was sentenced to a twelve-year term of
federal imprisonment, with an eight-year special parole term
to follow. His parole was revoked four times between 1990
and 1996. He was again released on November 7, 1997, with
his special parole term set to commence on January 28, 1998,
after the expiration of his twelve-year term.
On February 12, 1998, the United States Parole Commis-
sion (“Parole Commission”) issued a warrant for Conlon’s
arrest. The warrant application stated that Conlon had failed
to notify the Parole Commission of a change of address in
violation of his special parole terms. He was arrested on Feb-
ruary 19, 1998, and after Conlon admitted the allegations, his
parole was revoked and the eight-year special parole term was
converted to a regular term of twenty-four months of impris-
onment.
On November 29, 1999, the United States District Court for
the District of Arizona, the Honorable William D. Browning
presiding, granted Conlon’s petition for a writ of habeas cor-
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pus, ordering him released on or before December 15, 1999.
That court found that the Parole Commission never had juris-
diction to issue the warrant because the alleged violation
occurred prior to the commencement of Conlon’s special
parole term.
In the spring of 2000, Conlon was arrested in Minnesota for
failure to report to the Parole Commission upon his release.
He reopened his previous habeas petition. Because the Ari-
zona district court’s original order granting habeas relief did
not require Conlon to complete his special parole term, the
court concluded that Conlon’s failure to report was not
improper. The Arizona district court then vacated Conlon’s
special parole term and ordered him released no later than
August 3, 2001.
After exhausting his administrative remedies, Conlon filed
a pro per civil action in the United States District Court for
the District of Nevada.1 The parties stipulated to dismiss all
claims except those arising under the FTCA. In an order filed
June 8, 2004, the Nevada district court dismissed on jurisdic-
tional grounds all but the negligence claim arising out of Con-
lon’s February 19, 1998, arrest and subsequent imprisonment.2
The court held a status conference on August 17, 2004.
United States Magistrate Judge Valerie Cooke of the District
of Nevada issued a scheduling order setting October 15, 2004,
as the deadline for completion of discovery, and November
15, 2004, as the deadline for filing dispositive motions.3 The
trial was to commence on January 11, 2005.
1Through later retained counsel Conlon filed an amended complaint on
March 19, 2002. A second amended complaint was filed on November 19,
2002.
2Conlon does not appeal this decision.
3Prior to this, Conlon had twice failed to attend scheduled settlement
conferences.
632 CONLON v. UNITED STATES

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The United States served its “First Set of Request for
Admissions and First Set of Interrogatories” on August 19,
2004. In the first paragraph, the United States explicitly
stated:
Pursuant to Rules 26 and 36 of the Federal Rules
of Civil Procedure, defendant requests that plaintiff
MICHAEL J. CONLON respond within thirty (30)
days from service hereof, to the following requests
for admissions. In accordance with Rule 36, the fail-
ure to respond within the time provided will result in
the matters set forth being admitted.
Responses were due September 21, 2004. The more pertinent
requests for admissions included Request #7: “The U.S.
Parole Commission’s issuance of the February 12, 1998 viola-
tor warrant was not caused by any negligent or wrongful act
or omission of any employee of the United States”; Request
#13: “Your February 20, 1998 [sic] arrest was not caused by
any negligent or wrongful act or omission of any employee of
the United States”; and Request #26: “No portion of your
incarceration from February 20, 1998 [sic] to December 15,
1999 was caused by any negligent or wrongful act or omis-
sion of any employee of the United States.”
Shortly after the thirty-day time frame passed, the United
States contacted Conlon to discuss his past-due responses. In
a follow-up letter dated September 28, 2004, the assistant
United States attorney again warned Conlon of the conse-
quences of his failure to respond:
As we discussed last week, the responses to the
discovery propounded on August 19 (request for
admissions and interrogatories) are past due. There
has been no request for an extension of the time
established for such responses and, given the short
discovery period set by the Court, there is no room
for flexibility in this regard if additional discovery is
633 CONLON v. UNITED STATES

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to be done (as was contemplated following receipt of
the responses). Pursuant to [Rule 36 of the Federal
Rules of Civil Procedure], the matters set forth in
request for admissions numbered 1-27 are deemed
admitted for the purpose of this pending action and
I will proceed accordingly.
Prior to the October 15, 2004, discovery cut-off deadline,
Conlon had not responded to the government’s Request for
Admissions, the September 28, 2004, follow-up letter, or filed
a motion to withdraw his admissions with the Nevada district
court under Rule 36(b). On November 3, 2004, Conlon sent
deficient responses to the Request for Admissions.4 In a letter
dated November 5, 2004, the United States again told Conlon
that his “failure to respond to the requests for admission in a
timely manner resulted in those matters being deemed admit-
ted.” It further explained that because “the Court provided for
a very short discovery period[,] . . . [t]he discovery pro-
pounded to [Conlon] was designed to obtain responses well in
advance of the expiration of the discovery period so that addi-
tional discovery could be conducted based on the responses
which were timely received.”
On November 12, 2004, three days before the dispositive
motions deadline, the United States filed a motion for sum-
mary judgment based on the “deemed admissions.” On
November 15, 2004, Conlon filed a Motion for Relief under
Rule 36(b). He argued that (1) he was out of touch with his
attorney during part of the period for answering the Request
for Admissions, and his participation was essential; (2) once
he was contacted the requests were answered forthwith; (3)
relief would further the administration of justice, and denial
would cause a hardship upon Conlon; and (4) relief would not
unduly prejudice the United States. In conjunction with his
Motion for Relief, Conlon also served on the United States a
4Conlon did not verify the responses and did not set forth the factual
basis for any denials.
634 CONLON v. UNITED STATES

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new set of answers, rectifying the deficiencies in the
responses to interrogatories that were present in the first set.
The United States opposed Conlon’s Motion for Relief.
On January 3, 2005, Magistrate Judge Cooke denied Con-
lon’s Motion for Relief. The court relied in part on the fact
that counsel for the United States twice advised Conlon that
the admissions were deemed admitted, and that Conlon
sought relief only after the United States had filed a disposi-
tive motion. Moreover, as Magistrate Judge Cooke observed,
although Conlon claimed that he was “out of touch with his
attorney during part of the time for answering the requests for
admissions,” he never “allud[ed] to any serious medical con-
dition or other emergency which illustrate[d] the need for the
relief requested, nor d[id] he identify which admissions were
denied.” Rather than simply ignoring the Request for Admis-
sions, the district court concluded that, “[a]t minimum, [Con-
lon] should have sought leave of the court for an extension of
time to serve the answers.” Therefore, because Conlon “failed
to show that presentation of the merits of this action will be
subserved by permitting withdrawal of ‘several’ of the admis-
sions,” and because “the defendant will be severely preju-
diced by allowing withdrawal of the admissions since a
dispositive motion is in the midst of briefing and trial is set
to commence in eight days,” Magistrate Judge Cooke denied
the Motion for Relief. Subsequently, the district court granted
the government’s motion for summary judgment, stating that
the “Defendant’s motion for summary judgment turn[ed] on
admissions made by plaintiff during discovery.”
II
We review a district court’s denial of a motion to withdraw
or amend a Rule 36 admission for an abuse of discretion. 999
v. C.I.T. Corp., 776 F.2d 866, 869 (9th Cir. 1985). “Trial
courts [have been] advised to be cautious in exercising their
discretion to permit withdrawal or amendment of an admis-
sion.” Id.
635 CONLON v. UNITED STATES

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The district court’s decision to grant summary judgment is
reviewed de novo. Buono v. Norton, 371 F.3d 543, 545 (9th
Cir. 2004). Unanswered requests for admissions may be relied
on as the basis for granting summary judgment. O’Campo v.
Hardisty, 262 F.2d 621, 624 (9th Cir. 1958).
III
[1] Rule 36(a) states that a matter is deemed admitted “un-
less, within 30 days after service of the request . . . the party
to whom the request is directed serves upon the party request-
ing the admission a written answer or objection addressed to
the matter, signed by the party or by the party’s attorney.”
Fed. R. Civ. P. 36(a). Once admitted, the matter “is conclu-
sively established unless the court on motion permits with-
drawal or amendment of the admission” pursuant to Rule
36(b). Fed. R. Civ. P. 36(b). Rule 36(b) provides, in pertinent
part:
[T]he court may permit withdrawal or amendment
when the presentation of the merits of the action will
be subserved thereby and 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.
Id. (emphasis added).
[2] Rule 36(b) is permissive, not mandatory, with respect
to the withdrawal of admissions. See Asea, Inc. v. S. Pac.
Transp. Co., 669 F.2d 1242, 1248 (9th Cir. 1981). The rule
permits the district court to exercise its 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 sub-
served,” and (2) “the party who obtained the admission fails
to satisfy the court that withdrawal or amendment will preju-
dice that party in maintaining the action or defense on the
merits.” Fed. R. Civ. P. 36(b); Hadley v. United States, 45
636 CONLON v. UNITED STATES

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F.3d 1345, 1348 (9th Cir. 1995); see also Carney v. IRS (In
re Carney), 258 F.3d 415, 419 (5th Cir. 2001) (“[A] deemed
admission can only be withdrawn or amended by motion in
accordance with Rule 36(b).”); Donovan v. Carls Drug Co.,
703 F.2d 650, 652 (2d Cir. 1983) (stating that the court may
excuse a party from its deemed admissions “only when (1) the
presentation of the merits will be aided and (2) no prejudice
to the party obtaining the admission will result”), overruled
on other grounds by McLaughlin v. Richland Shoe Co., 486
U.S. 128, 133-34 (1988). However, because requests for
admissions have a binding effect on the parties, see Fed. R.
Civ. P. 36(b), the provision for withdrawal or amendment spe-
cifically provides parties with a potential safe harbor. Id.
[3] Admissions are sought, first, to facilitate proof with
respect to issues that cannot be eliminated from the case and,
second, to narrow the issues by eliminating those that can be.
Id. advisory committee note. The rule is not to be used in an
effort to “harass the other side” or in the hope that a party’s
adversary will simply concede essential elements. Perez v.
Miami-Dade County, 297 F.3d 1255, 1268 (11th Cir. 2002).
Rather, the rule seeks to serve two important goals: truth-
seeking in litigation and efficiency in dispensing justice. See
Fed. R. Civ. P. 36(b) advisory committee note. Thus, a district
court must specifically consider both factors under the rule
before deciding a motion to withdraw or amend admissions.
A
[4] “The first half of the test in Rule 36(b) is satisfied when
upholding the admissions would practically eliminate any pre-
sentation of the merits of the case.” Hadley, 45 F.3d at 1348.
The United States filed its motion for summary judgment
based on the deemed admissions. In granting that motion, the
district court recognized that the motion “turn[ed] on admis-
sions made by plaintiff during discovery.” By operation of the
rule Conlon “admitted that neither the issuing of the warrant,
his arrest or his subsequent incarceration were caused by neg-
637 CONLON v. UNITED STATES

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ligent or wrongful acts or omissions of United States employ-
ees.” Therefore, because upholding the deemed admissions
eliminated any need for a presentation on the merits, Conlon
satisfies the first prong of the test in Rule 36(b).
B
[5] The party relying on the deemed admission has the bur-
den of proving prejudice. Id.
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. (quoting Brook Vill. N. Assocs. v. Gen. Elec. Co., 686 F.2d
66, 70 (1st Cir. 1982)).
In Hadley, 45 F.3d 1345, and C.I.T. Corp., 776 F.2d 866,
we addressed whether the nonmoving party would be preju-
diced by a withdrawal of deemed admissions. In Hadley, the
government served its requests after the discovery cut-off date
set by the court. 45 F.3d at 1347. The answers were due by
July 8, 1993, but were served a little over a month late on
August 14, 1993. Id. Hadley filed a motion to withdraw the
admissions soon thereafter. The government argued that it
would be prejudiced because it had relied on the “deemed
admissions” during its deposition of Hadley. Id. at 1349. The
government had an affidavit from Hadley that corroborated
the admissions and rather than “vigorous[ly] cross-
examin[ing]” him, the United States limited the scope of its
deposition questions to establishing that Hadley signed the
affidavit and that it was true and correct. Id.
638 CONLON v. UNITED STATES

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We rejected the government’s argument against with-
drawal, reasoning that “[e]ven if the affidavit had contained
statements that directly corroborated the admissions, the gov-
ernment had the affidavit available for trial. If Hadley had
denied liability at trial, the government could have cross-
examined him with the affidavit itself.” Id. (footnote omitted).
Therefore, although withdrawal may have inconvenienced the
government, that inconvenience did not rise to the level of
prejudice that justified a denial of the motion to withdraw. Id.
By contrast, the moving party in C.I.T. Corp. did not seek
withdrawal until the middle of trial.5 776 F.2d at 869. During
the discovery period, in response to a request for admission,
C.I.T. admitted that an August 2 letter constituted an agree-
ment. Id. at 868-69. During trial, the district court excluded a
September 23 letter because it contradicted the pre-trial
admission. Id. at 869. In response, C.I.T. filed a motion to
withdraw the admissions, which the district court denied. We
affirmed. Although we recognized that there was a good argu-
ment that the withdrawal would not prejudice 999 because
999 had admitted other evidence of the agreement throughout
the trial, we concluded that the district court was justified in
its decision because of the timing of the motion. C.I.T. did not
move for withdrawal until the middle of trial, after 999 had
heavily relied on the admissions and was about to rest its case.
Id.
Conlon’s case falls somewhere between Hadley, where the
motion to withdraw was made prior to trial but the govern-
ment still had other contradictory evidence available, and
C.I.T. Corp., where the motion to withdraw was made during
trial, after the other party had relied heavily on the admissions
and was preparing to rest its case. The United States here
argues that it would have been prejudiced by withdrawal
5A party moving to withdraw deemed admissions during trial faces a
more restrictive standard than a party moving to withdraw deemed admis-
sions prior to trial. C.I.T. Corp., 776 F.2d at 869.
639 CONLON v. UNITED STATES

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because, in reliance on the facts “conclusively established” by
the deemed admissions, it chose not to conduct any other dis-
covery that was necessary to disprove negligence. Moreover,
it had relied on the admissions to file its motion for summary
judgment, and the trial was scheduled to begin only eight days
after the district court adjudicated Conlon’s motion to with-
draw the deemed admissions.
[6] When undertaking a prejudice inquiry under Rule 36(b),
district courts should focus on the prejudice that the nonmov-
ing party would suffer at trial. See Sonoda v. Cabrera, 255
F.3d 1035, 1039-40 (9th Cir. 2001) (holding, without further
analysis, that the district court did not abuse its discretion by
granting the Rule 36(b) motion to withdraw deemed admis-
sions because the motion was made before trial and the non-
moving party would not have been hindered in presenting its
evidence); Hadley, 45 F.3d at 1348 (focusing the prejudice
inquiry on the unavailability of key witnesses and a sudden
need to obtain evidence); see also Raiser v. Utah County, 409
F.3d 1243, 1247 (10th Cir. 2005) (finding no prejudice when
the nonmoving party had relied on the deemed admissions for
only a two-week period in preparing its summary judgment
motion); Perez, 297 F.3d at 1268 (concluding that no preju-
dice would result because the nonmoving party had been con-
ducting discovery throughout the discovery period, the motion
was made only six days after the deadline, and withdrawal
would not create a “sudden need” to gather evidence); Kirtley
v. Sovereign Life Ins. Co. (In re Durability Inc.), 212 F.3d
551, 556 (10th Cir. 2000) (holding categorically that prepar-
ing a summary judgment motion by relying on admissions
does not constitute prejudice); FDIC v. Prusia, 18 F.3d 637,
640 (8th Cir. 1994) (same); Brook Vill., 686 F.2d at 70 (focus-
ing on the difficulty that a party will face in proving his case
at trial); Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688
(2d Cir. 1966) (holding that there was no prejudice when the
trial date would not be delayed).
[7] We think it is a close question whether withdrawal
would have prejudiced the United States. We agree with the
640 CONLON v. UNITED STATES

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other courts that have addressed the issue and conclude that
reliance on a deemed admission in preparing a summary judg-
ment motion does not constitute prejudice. Kirtley, 212 F.3d
at 556; Prusia, 18 F.3d at 640. Although the United States
relied on the deemed admissions in choosing not to engage in
any other discovery, cf. Perez, 297 F.3d at 1268, we are reluc-
tant to conclude that a lack of discovery, without more, con-
stitutes prejudice. The district court could have reopened the
discovery period, see id., and prejudice must relate to the dif-
ficulty a party may face in proving its case at trial, Hadley, 45
F.3d at 1348.
[8] Nevertheless, this case involves more than a mere fail-
ure to comply with the deadlines. Cf. Raiser, 409 F.3d at
1247. Unlike the situation in Perez, the government relied on
the admissions for a total of two and a half months, through
the discovery and dispositive motion cut-off dates, with no
indication that Conlon intended to file a motion to withdraw
his admissions. See Perez, 297 F.3d at 1268 (finding no preju-
dice, in part, because Perez had relied on the admissions for
only six days); see also Raiser, 409 F.3d at 1247 (“Only two
weeks passed between the due date for Mr. Raiser’s response
and the date that he filed his initial motion to amend his
admissions or allow an untimely response.”).
[9] In addition, when the district court issued its order only
eight days remained until trial. With trial imminent, the gov-
ernment relied heavily on Conlon’s admissions, which essen-
tially conceded the case. As a result, the government
conducted none of the discovery it otherwise needed to prove
its case at trial. We cannot speculate as to whether the United
States would have had time, without requiring a continuance
of the trial date, to prepare for and conduct any needed dis-
covery. Although the issue is close, we conclude that the dis-
trict court did not clearly err in finding that withdrawal of the
deemed admissions at such a late stage in the case would prej-
udice the United States.
641 CONLON v. UNITED STATES

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IV
Even if we disagreed with the district court’s application of
Rule 36(b), based on this record we still could not conclude
that the district court abused its discretion in denying Con-
lon’s motion to withdraw the deemed admissions. We have
not previously opined on whether Rule 36(b) requires a dis-
trict court to grant relief when the moving party can satisfy
the two-pronged test. We hold that it does not. The text of
Rule 36(b) is permissive. See Fed. R. Civ. P. 36(b) (stating
that the district court “may permit withdrawal”); In re Carney,
258 F.3d at 419 (stating in dictum that “[e]ven when the[ ]
two factors are established, a district court still has discretion
to deny a request for leave to withdraw or amend an admis-
sion”); United States v. Kasuboski, 834 F.2d 1345, 1350 n.7
(7th Cir. 1987) (same); Donovan, 703 F.2d at 652 (“Because
the language of . . . Rule [36(b)] is permissive, the court is not
required to make an exception to Rule 36 even if both the
merits and prejudice issues cut in favor of the party seeking
exception to the rule.”). But see Perez, 297 F.3d at 1264-65
(rejecting the argument that a district court may deny with-
drawal even if the two-pronged test is met). Therefore, when
a district court finds that the merits of the action will be sub-
served and the nonmoving party will not be prejudiced, it
“may” allow withdrawal, but is not required to do so under
the text of Rule 36(b).
Although the rule itself is permissive, the Advisory Com-
mittee clearly intended the two factors set forth in Rule 36(b)
to be central to the analysis.6 Accordingly, a district court’s
6The Advisory Committee Notes to the 1970 amendments recognize
that, “[u]nless the party securing an admission can depend on its binding
effect, [that party] cannot safely avoid the expense of preparing to prove
the very matters on which he has secured the admission, and the purpose
of the rule is defeated.” Therefore, by amending Rule 36(b), the Commit-
tee sought to “emphasize[ ] the importance of having the action resolved
on the merits, while at the same time assuring each party that justified reli-
ance on an admission in preparation for trial will not operate to his preju-
dice.”
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failure to consider these factors will constitute an abuse of
discretion. See Gutting v. Falstaff Brewing Corp., 710 F.2d
1309, 1313 (8th Cir. 1983) (“[T]he district court erred in not
considering the factors set out in [R]ule 36(b).”). However, in
deciding whether to exercise its discretion when the moving
party has met the two-pronged test of Rule 36(b), the district
court may consider other factors, including whether the mov-
ing party can show good cause for the delay and whether the
moving party appears to have a strong case on the merits.
Here, the district court fully considered the two-pronged
test set forth in Rule 36(b). In addition, it concluded that Con-
lon could not show good cause for his dilatory conduct. The
court explained that although Conlon claimed that he was
“out of touch with his attorney during part of the time for
answering the requests for admissions,” he “d[id] not allude
to any serious medical condition or other emergency which
illustrate[d] the need for the relief requested, nor d[id] he
identify which admissions were denied.”
This is not a situation in which the United States used a
request for admissions to gain an unfair tactical advantage. Cf.
Perez, 297 F.3d at 1268 (stating that Perez used the rule “to
harass the other side . . . with the wild-eyed hope that the
other side w[ould] fail to answer and therefore admit essential
elements”). After the August 17, 2004, status conference, the
district court issued a scheduling order setting October 15,
2004, as the discovery deadline and November 15, 2004, as
the deadline for filing dispositive motions. The United States
served its Request for Admissions on August 19, 2004, well
within the allotted discovery period. Cf. id. at 1258 (revealing
that Perez served his first request for admissions at the same
time that he served his complaint). Moreover, Conlon had fair
warning of the consequences of his noncompliance.
[10] Therefore, because Rule 36(b) is permissive, we can-
not say that the district court abused its discretion in consider-
ing Conlon’s failure to show good cause for the delay in filing
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responses to the government’s Request for Admissions. We
do emphasize, though, that district courts must consider the
factors laid out in the rule when deciding motions to grant or
amend requests for admissions.
V
[11] Alternatively, Conlon argues that summary judgment
should not have been granted because the Arizona district
court had already concluded that the United States was negli-
gent. Although the Nevada district court recognized in a pre-
vious order that the Arizona district court had determined that
the Parole Commission did not have jurisdiction to issue the
warrant, the Arizona district court never made a finding as to
whether the Parole Commission acted negligently. Moreover,
the government’s position in defending the Nevada action was
not contrary to, or inconsistent with, its use of the deemed
admissions.
Because Conlon never presented any direct evidence of
negligence by the Parole Commission (other than the Arizona
district court’s finding that it lacked jurisdiction to issue the
warrant), we uphold the Nevada district court’s entry of sum-
mary judgment against Conlon.
AFFIRMED.
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