EPA USA Incorporated v. Kamil Knap

• Court: District Court, D. Arizona
• Decided: March 31, 2026
• Docket: 2:24-cv-00749
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 EPA USA Incorporated, No. CV-24-00749-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 Kamil Knap,

13 Defendant. 14 15 Pending before the Court are Defendant’s Motion to Dismiss and Motion to Amend 16 Answer (Doc. 75), Defendant’s Motion for Summary Judgment (Doc. 88), Plaintiff’s 17 Motion for Partial Summary Judgment (Doc. 93), Defendant’s Motion for Rule 36(b) 18 Relief (Doc. 94), Defendant’s Cross Motion for Summary Judgment (Doc. 96), and 19 Plaintiff’s Motion to Strike Defendant’s Cross Motion (Doc. 101). 20 Defendant’s Motion to Dismiss and Motion to Amend Answer (Doc. 75) are both 21 denied; subsequently, Defendant’s Cross Motion for Summary Judgment (Doc. 96) is 22 denied, and Plaintiff’s Motion to Strike Defendant’s Cross Motion (Doc. 101) is denied as 23 moot. Defendant’s Motion for Rule 36(b) Relief (Doc. 94), however, is granted. The Court 24 will thus allow Plaintiff to file notice detailing whether it (a) wishes to proceed with its 25 original Motion for Partial Summary Judgment (Doc. 93), with the Court considering 26 Defendant’s late responses and objections, or (b) if it wishes to submit a redrafted version 27 of the motion to address Defendant’s late responses. The Court takes the other pending 28 motion—Defendant’s Motion for Summary Judgment (Doc. 88)—under advisement. 1 BACKGROUND 2 This order borrows the facts as set out in the Court’s previous orders in Doc. 22 and 3 Doc. 35. This case involves a dispute between Plaintiff EPA USA Incorporated (“EPA”), 4 a California corporation, and Defendant Kamil Knap, EPA’s former Board Member and 5 Director. (Doc. 1 at 1). EPA’s principal place of business is in Arizona. (Id. at 2). EPA 6 is a debt collection agency that purchases “debt portfolios” from lenders. (Doc. 13 at 6). 7 These portfolios are typically filled with past-due debt that the original lender no longer 8 wishes to pursue. (Id.). EPA purchases the portfolios at a price lower than the outstanding 9 debt and produces a profit by successfully pursuing and collecting the past-due amounts. 10 Knap formed EPA in 2019, using financing provided by El Palo Alto PTE.LTD (“El 11 Palo Alto”). (Id. at 7). El Palo Alto is a Singaporean company and is the original sole 12 shareholder of EPA. (Id.). Knap served as EPA’s original Director and Officer. (Id.). 13 On September 26, 2023, Knap entered into a written agreement with El Palo Alto 14 and a third company, R2P Invest PTE Ltd (“R2P”). (Doc. 15-2 at 1-4). That agreement 15 stated that Knap would transfer his 33% ownership in El Palo Alto to R2P—along with 16 access codes, e-mails, banking information, and debt portfolios—and in return, El Palo 17 Alto would transfer EPA to Knap in entirety. (Id.). While the parties dispute fault, they 18 agree that the contract was never performed. In February 2024, El Palo Alto terminated 19 Knap from his employment with EPA. (Doc. 13 at 8). Accordingly, the evidence presented 20 indicates that El Palo Alto retains sole ownership of EPA. 21 On April 4, 2024, EPA filed its complaint against Knap, alleging that he 22 misappropriated EPA’s trade secrets under the Defend Trade Secrets Act (18 U.S.C. 23 § 1836), violated the Computer Fraud and Abuse Act (18 U.S.C. § 1030) by improperly 24 maintaining possession of EPA’s valuable debt portfolios, and breached his fiduciary 25 duties to EPA by taking intentional action to frustrate EPA’s operations, among other 26 claims. (Doc. 1 at 9-16). In his answer, Knap admitted that this Court has subject matter 27 jurisdiction over the controversy. (Doc. 16 at 2). 28 On May 1, 2024, EPA moved for a temporary restraining order (“TRO”) against 1 Knap, asking the Court to prevent Knap from withholding, destroying, or accessing EPA’s 2 property. (Doc. 13). The Court granted the TRO. (Doc. 20; Doc. 22). The Court converted 3 the TRO into a preliminary injunction on May 29, 2024, imposing additional requirements 4 as well. (Doc. 35). 5 DISCUSSION 6 I. Defendant’s Motion to Dismiss and Motion to Amend Answer (Doc. 75) 7 Knap moves to dismiss this action for lack of subject matter jurisdiction and, in the 8 alternative, moves for leave to amend his answer to assert counterclaims. (Doc. 75). Both 9 requests are denied. 10 a. Motion to Dismiss 11 Knap identifies a “contract dated July 21, 2022, from which this entire dispute 12 arises,” and points to a provision in the contract that states: 13 This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of this Agreement or its 14 formation) shall be governed by and construed in accordance 15 with the laws of Singapore and the parties irrevocably submit to the exclusive jurisdiction of the Courts of Singapore. 16 (Doc. 75 at 2; Doc. 26-2 at 14). He identifies another contract, signed “by the parties” on 17 September 9, 2023, which states: “All of the terms of the Agreement shall be governed by 18 the jurisdiction of Singapore.” (Doc. 75 at 2; Doc. 15-2 at 4). Knap avers that since there 19 is a “clearly stated forum selection clause, the Court has little choice but to dismiss this 20 action for lack of jurisdiction.” (Doc. 75 at 3). Knap is incorrect. 21 The Court has subject matter jurisdiction over this matter. “[T]he Supreme Court 22 has held that a forum selection clause does not deprive a federal court of subject matter 23 jurisdiction.” Kamm v. ITEX Corp., 568 F.3d 752, 754 (9th Cir. 2009) (citing M/S Bremen 24 v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972)). Though Knap correctly argues that 25 “parties cannot confer on a federal court jurisdiction that has not been vested in that Court 26 by the Constitution and Congress” (Doc. 75 at 2), that argument is ultimately irrelevant. 27 Here, Congress conferred subject matter jurisdiction to this Court over this action via 28 federal question jurisdiction. 28 U.S.C. § 1331. And private parties do not have the power 1 to divest a court of subject matter jurisdiction through contractual agreement. Uber Techs., 2 Inc. v. United States Jud. Panel on Multidistrict Litig., 131 F.4th 661, 672-73 (9th Cir. 3 2025) (“Where a federal statute vests a court with the power (or duty) to act of its own 4 accord, a private agreement cannot bind the court and the agreement is entitled to only so 5 much consideration as provided for by Congress. Forum selection clauses neatly illustrate 6 this rule.”). The Court thus readily dismisses Knap’s argument that the Court lacks 7 jurisdiction here. 8 But a “court cannot ignore the forum selection clause simply because the court has 9 subject matter jurisdiction.” Powell v. United Rentals (N. Am.), Inc., 2019 WL 1489149, 10 at *5 (W.D. Wash. Apr. 3, 2019). “Instead, the appropriate way to enforce a forum- 11 selection clause pointing to a state or foreign forum is through the doctrine of forum non 12 conveniens.” Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. Of Texas, 571 13 U.S. 49, 60 (2013). 14 A defendant seeking dismissal of an action through forum non conveniens based on 15 a forum selection clause must demonstrate, as a threshold matter, that the clause is 16 applicable to the controversy at hand. Sun v. Advanced China Healthcare, Inc., 901 F.3d 17 1081, 1086 (9th Cir. 2018). Only if the clause “covers the present suit” can a court next 18 “consider whether the forum-selection clause is enforceable.” Id. at 1086-87. The burden 19 shifts to the plaintiff to show “why the court should not transfer the case to the forum to 20 which the parties agreed.” Id. at 1087 (quoting Atl. Marine Const. Co., Inc., 571 U.S. at 21 64). “While a court may consider factors relating to the public interest . . . , those factors 22 will rarely defeat a transfer motion.” Id. at 1088. “The practical result is that a forum- 23 selection clause ‘should control except in unusual cases.’” Id. (quoting Atl. Marine Const. 24 Co., Inc., 571 U.S. at 64). 25 Knap fails in his motion to establish that any forum selection clause “covers the 26 present suit.” Sun, 901 F.3d at 1086. Knap merely points to a provision in “a contract 27 dated July 21, 2022, from which,” he conclusorily alleges, “this entire dispute arises.” 28 (Doc. 75 at 2 (citing Doc. 26-2 (the “Convertible Debt Agreement”))). He also states that 1 “another document” contains a “statement that also affirms the intent of the parties as to 2 jurisdiction in Singapore.” (Id. at 3 (citing Doc. 15-2 (the “Ownership Transfer 3 Agreement”))). But Knap makes no effort to tie these contracts with the present suit. 4 The Ninth Circuit has repeatedly held that “forum-selection clauses covering 5 disputes ‘arising out of’ a particular agreement apply only to disputes ‘relating to the 6 interpretation and performance of the contract itself.’” Sun, 901 F.3d at 1086 (citing string 7 of cases). “By contrast, forum-selection clauses covering disputes ‘relating to’ a particular 8 agreement apply to any disputes that reference the agreement or have some ‘logical or 9 causal connection’ to the agreement.” Id. (citations omitted). 10 Here, the forum selection clause in the Convertible Debt Agreement only applies to 11 disputes “arising out of this Agreement or its formation.” (Doc. 26-2 at 14 (emphasis 12 added)). And the Ownership Transfer Agreement only states that “terms of the Agreement 13 shall be governed by the jurisdiction of Singapore.” (Doc. 15-2 at 4). Knap does not 14 explain how EPA’s claims in this suit—misappropriation of trade secrets, improper 15 possession of EPA’s debt portfolio, and taking intentional action to frustrate EPA’s 16 operations—involve “the interpretation and performance” of the two identified 17 agreements. Sun, 901 F.3d at 1086 (citations omitted). Notably, Knap fails to identify 18 even a single provision contained within these two agreements—other than the purportedly 19 valid forum selection clauses themselves—that requires interpretation or performance to 20 resolve this case. And the absence of any “relating to” language in the clauses indicates 21 that they do not apply broadly to “any dispute that has some logical or causal connection 22 to the parties’ agreement[s],” like potentially this case. See id. This is fatal to Knap’s 23 motion to dismiss. 24 The motion to dismiss is denied. 25 b. Motion to Amend 26 Alternatively, Knap moves to amend his answer to assert claims, initially brought 27 by Knap in another action, as counterclaims here, which he styles as “compulsory.” (Doc. 28 75 at 3). Per the Court’s Case Management Order, the deadline to amend pleadings was 1 September 9, 2024. (Doc. 53 at 1). Knap’s untimely motion was filed on April 15, 2025— 2 more than seven months after the expiration of the deadline. (See Doc. 75). 3 Once the deadline imposed by a scheduling order has lapsed, the person seeking 4 leave to amend must demonstrate “good cause.” Johnson v. Mammoth Recreation, Inc., 5 975 F.2d 604, 608 (9th Cir. 1992); Fed. R. Civ. P. 16(b)(4). Good cause exists when a 6 deadline “cannot reasonably be met despite the diligence of the party seeking the 7 extension.” Id. at 609 (citing Fed. R. Civ. P. 16 advisory committee’s notes (1983 8 amendment)). If the party has not been diligent, “the inquiry should end.” Id. The good 9 cause standard typically will not be met where the party seeking to modify the scheduling 10 order has been aware of the facts and theories supporting amendment since the inception 11 of the action. See United States v. Dang, 488 F.3d 1135, 1142-43 (9th Cir. 2007). 12 Knap has not demonstrated that good cause exists to permit his amendment. Knap 13 brought a suit, individually and derivatively on behalf of EPA as a shareholder, against 14 R2P and two individual defendants on November 17, 2023, in the Eastern District of Texas. 15 (Knap et al. v. R2P Invest PTE.LTD et al., No. 6:23-cv-00564 (E.D. Tex.), ECF No. 1) 16 [hereinafter the “Texas Suit”]. In that suit, Knap brought claims under the Defend Trade 17 Secrets Act and the Computer Fraud and Abuse Act. (Id.). During the pendency of the 18 suit, in February 2024, Knap was terminated from his employment with EPA. (Doc. 13 at 19 8). This current action was brought by EPA in April 2024, and the Court granted EPA’s 20 motions for a TRO and preliminary injunction in May 2024. (Doc. 22; Doc. 35). 21 The district court dismissed the Texas Suit, without prejudice, on June 18, 2024, for 22 failure to file proof of service. (Texas Suit, ECF No. 4). Knap then asked the district court, 23 in late July and again in early August, to reinstate the case. (Texas Suit, ECF Nos. 6, 7). 24 The district court reinstated the case on November 13, 2024. (Texas Suit, ECF No. 8). 25 Knap then moved to stay the Texas Suit pending resolution of this current action. (Texas 26 Suit, ECF No. 9). 27 Knap’s account then differs from what is reflected on the Texas Suit’s docket. 28 Knap, in his motion, claims that his request for a stay was granted “and that case is now on 1 hiatus pending resolution here.” (Doc. 75 at 3). But there is no order on the Texas Suit’s 2 docket indicating that the district court issued a stay of that action. Instead, the district 3 court, on February 13, 2025, issued an order for Knap to show cause as to why the Texas 4 Suit should not be dismissed or transferred for lack of proper venue, or transferred to the 5 District of Arizona on convenience grounds. (Texas Suit, ECF No. 10). Knap did not 6 respond to this order. “In the absence of briefing” from Knap, the district court in April 7 2025 “decline[d] to exercise its discretion to transfer the case to the District of Arizona.” 8 (Texas Suit, ECF No. 11 at 3). 9 The Court finds that Knap has not been diligent in seeking amendment. Knap was 10 aware of the facts and theories supporting amendment since the inception of this action, 11 given that he filed the Texas Suit before this action was initiated. Moreover, once the 12 Texas Suit was dismissed without prejudice on June 18, 2024, Knap had ample time to seek 13 leave from this Court to amend his answer. The Court issued the initial Case Management 14 Order on July 11, 2024—sixty days before the deadline to amend pleadings had lapsed. 15 (Doc. 53). But Knap moved instead to reinstate the Texas Suit, rather than seeking 16 permission to file those claims here as counterclaims. And when given the opportunity to 17 address whether the Texas Suit should be transferred to the District of Arizona, Knap 18 declined that opportunity. 19 Moreover, Knap misrepresents the procedural posture of the Texas Suit. In his reply 20 brief, dated May 5, 2025, Knap states that if he prevails in this current action, “he can 21 activate the Texas case again to have his claims heard,” noting again that “he stayed the 22 Texas case pending the outcome here.” (Doc. 80 at 2). But the district court did not stay 23 the action—instead, it dismissed the suit and declined to transfer it to this District. (Texas 24 Suit, ECF No. 11). This Court will not allow Knap to bring his counterclaims at this late 25 juncture when he had ample opportunity to do so from June 18 to September 9, 2024.1

26 1 Knap also states that this is a situation where a pleader need not assert a compulsory counterclaim if, “when the action was commenced, the claim was the subject of another 27 pending action.” (Doc. 75 at 3 (quoting Fed. R. Civ. P. 13(a)(2)(A)). While it is true that Knap’s proposed counterclaims were pending when this current action was first 28 commenced, that was not true from June 18 to September 9, 2024. The Texas Suit was dismissed during that period, and it was not reinstated until November 13, 2024—more 1 The motion to amend is denied. 2 II. Defendant’s Cross Motion for Summary Judgment (Doc. 96) and Plaintiff’s Motion to Strike Defendant’s Cross Motion (Doc. 101) 3 Next, Knap, in his response to Plaintiff’s Motion for Partial Summary Judgment, 4 cross moves for summary judgment on the counterclaims that he sought leave to assert. 5 (Doc. 96 at 8:18-9:2). EPA moves to strike this cross motion. (Doc. 101). 6 The Court has now denied Knap’s request for leave to amend his answer (Doc. 75). 7 Knap’s proposed counterclaims are thus not live in this action, and he cannot seek summary 8 judgment on them. See, e.g., Bioriginal Food & Sci. Corp. v. Biotab Nutraceuticals, Inc., 9 2015 WL 4656257, at *5 (C.D. Cal. Aug. 3, 2015) (“[D]efendants cite no authority for the 10 proposition that they may seek summary judgment on a claim that has not been pleaded, 11 after being denied leave to add that claim in a pretrial motion.”). The Court therefore 12 denies Knap’s Cross Motion for Summary Judgment (Doc. 96). EPA’s Motion to Strike 13 Knap’s Cross Motion (Doc. 101) is denied as moot. 14 III. Defendant’s Motion for Rule 36(b) Relief (Doc. 94) 15 Finally, Knap moves for relief from his untimely responses to EPA’s Requests for 16 Admission under Rule 36(b). (Doc. 94 at 1). The Court will grant the relief sought. 17 Under Rule 36(a), “[a] matter is admitted unless, within 30 days after being served, 18 the party to whom the request is directed serves on the requesting party a written answer 19 or objection addressed to the matter and signed by the party or its attorney.” Fed. R. Civ. 20 P. 36(a)(3). Failure to respond to a request for admission within 30 days of service “results 21 in automatic admission of the matters requested.” Fed. Trade Comm’n v. Medicor, LLC, 22 217 F. Supp. 2d 1048, 1053 (C.D. Cal. 2002) (citation omitted). Furthermore, “[n]o motion 23 to establish the admissions is needed because [Rule] 36(a) is self executing.” Id. (citation 24 omitted). However, under both the Court’s Case Management Order and Rule 36, the 25

26 than two months after the deadline to amend pleadings in this case had lapsed. A claim cannot be “subject of another pending action,” Fed. R. Civ. P. 13(a)(2)(A), if that action 27 has been dismissed, even without prejudice. See Humphreys v. United States, 272 F.2d 411, 412 (9th Cir. 1959) (noting that, in the context of voluntary dismissal, a “suit 28 dismissed without prejudice . . . leaves the situation the same as if the suit had never been brought in the first place”). 1 parties may stipulate to extensions without the Court’s leave. (Doc. 53 at 2 (“[T]he parties 2 may mutually agree, without Court approval, to extend the time provided for discovery 3 responses in Rules 33, 34, and 36 of the Federal Rules of Civil Procedure.”)); Fed. R. Civ. 4 P. 36(a)(3) (“A shorter or longer time for responding may be stipulated to . . . .”). 5 A court may permit an admission to be withdrawn if (1) “it would promote the 6 presentation of the merits of the action” and (2) “the court is not persuaded that it would 7 prejudice the requesting party in maintaining or defending the action on the merits.” Fed. 8 R. Civ. P. 36(b). The Ninth Circuit has long recognized the authority of district courts to 9 permit late responses to requests for admission. See French v. United States, 416 F.2d 10 1149, 1152 (9th Cir. 1968). While a party need not show good cause for Rule 36(b) relief, 11 Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1185 (9th Cir. 2016), district courts 12 “have been advised to be cautious in exercising their discretion to permit withdrawal or 13 amendment of an admission.” Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007) 14 (citation modified). 15 EPA—as “[t]he party relying on the deemed admission”—“has the burden of 16 proving prejudice.” Id. at 622. Prejudice is demonstrated by “the difficulty a party may 17 face in proving its case, e.g., caused by the unavailability of key witnesses, because of the 18 sudden need to obtain evidence with respect to the questions previously deemed admitted.” 19 Id. (citations and internal quotation marks omitted). District courts must “focus on the 20 prejudice that the nonmoving party would suffer at trial.” Id. at 623 (emphasis added). 21 The Ninth Circuit has made clear that “reliance on a deemed admission in preparing a 22 summary judgment motion does not constitute prejudice.” Id. at 624. 23 EPA does not contest that withdrawal of Knap’s admissions would promote the 24 presentation of the merits of this action. (Doc. 94 at 3). The first Rule 36(b) factor favors 25 withdrawal. Additionally, the Court is not persuaded that withdrawal would prejudice EPA 26 in maintaining or defending this action on the merits. The second Rule 36(b) factor also 27 favors withdrawal. The Court will thus permit Knap to withdraw his previous admissions. 28 EPA served the pertinent Requests for Admission (“RFAs”) on December 17, 2024. 1 (Doc. 95 at 2). Knap’s responses were due January 16, 2025. See Fed. R. Civ. P. 36(a)(3). 2 Knap did not timely respond to the RFAs—thus deeming them admitted. On February 5, 3 2025, counsel for EPA sent an email to Knap’s counsel “requesting the overdue responses 4 to the RFAs.” (Doc. 93-1 at 40). Five days later, on February 10, 2025, EPA’s counsel 5 received Knap’s objections and responses to the RFAs. (Id.). Knap’s late responses are 6 set forth at Doc. 93-1, pp. 43-50. 7 At Knap’s first deposition, conducted on April 28, 2025, counsel for EPA presented 8 Knap with his objections and responses to the RFAs and asked him whether his responses 9 were accurate. (Doc. 99 at 2). EPA also asked Knap about topics in the RFAs during both 10 of his depositions.2 (Id.). EPA then timely filed its Motion for Partial Summary Judgment 11 on May 23, 2025, relying on Knap’s deemed admissions throughout, rather than his 12 untimely responses. (Doc. 91; Doc. 93). Knap filed this motion for Rule 36(b) relief on 13 June 3, 2025, several days after the close of fact discovery—May 2, 2025 (Doc. 70 at 1)— 14 and the deadline for dispositive motions—May 23, 2025 (Doc. 86). 15 EPA alleges that granting withdrawal would prejudice its “ability to conduct further 16 discovery or otherwise challenge the admissions Knap seeks to amend,” citing the close of 17 the discovery period. (Doc. 95 at 5). The Court is unconvinced that this reason 18 demonstrates any “difficulty [EPA] may face in proving its case at trial.” Conlon, 474 F.3d 19 at 624. 20 First, contrary to EPA’s assertion otherwise, EPA did have the ability to conduct 21 discovery or otherwise challenge Knap’s late responses. EPA received Knap’s late 22 responses on February 10, 2025—more than 2.5 months before the date of Knap’s first 23 deposition, April 28, 2025. EPA even presented Knap with his late responses at his first 24 deposition. The Court thus finds that EPA had ample opportunity to “depose Knap about 25 his contradictory positions” in his late responses and “seek additional documents to rebut 26 his belated denials.” (Contra Doc. 95 at 5). 27 Second, EPA’s counsel’s follow-up email to Knap’s counsel requesting the overdue

28 2 The Court permitted EPA to continue the deposition of Knap after the close of fact discovery, as long as the deposition was completed by May 15, 2025. (Doc. 82). 1 responses to the RFAs (Doc. 93-1 at 40) could reasonably be construed as EPA’s 2 acquiescence to an extension for Knap’s late responses. As noted in the Case Management 3 Order, the parties can agree to extend the time provided for discovery responses in Rule 36 4 “without the Court’s leave.” (Doc. 53 at 2); see also Fed. R. Civ. P. 36(a)(3). And EPA 5 does not aver that it gave any indication to Knap, or his counsel, that it intended to rely on 6 Knap’s deemed admissions in its summary judgment motion. Cf. Conlon, 474 F.3d at 620 7 (affirming the district court’s denial of Rule 36(b) relief where the requesting party there 8 “twice advised” the moving party “that the admissions were deemed admitted” before 9 filing any motion for summary judgment). Granting withdrawal here prevents the incentive 10 for gamesmanship where a party asks for and utilizes late responses during the discovery 11 period, yet still later reaps the benefits of deemed admissions at summary judgment. See 12 Foman v. Davis, 371 U.S. 178, 181-82 (1962) (“The Federal Rules reject the approach that 13 pleading is a game of skill in which one misstep by counsel may be decisive to the outcome 14 and accept the principle that the purpose of pleading is to facilitate a proper decision on the 15 merits.” (citation omitted)). 16 Third, EPA does not seriously contend that allowing withdrawal here would impair 17 its ability to present its claims at trial. To the contrary, EPA avers that it has provided 18 “sufficient additional evidence” in its Motion for Partial Summary Judgment (Doc. 93) “to 19 conclusively establish its requested declaratory relief and Knap’s liability for breaches of 20 fiduciary duties, trade secret misappropriation, and [Computer Fraud and Abuse Act] 21 violations.” (Doc. 95 at 6 (emphasis added)). EPA further notes that “Knap admits the 22 matters in some of the at-issue requests in his proposed amendments,” and that “some of 23 his amended denials in effect constitute admissions.” (Id.). Thus, EPA has not 24 demonstrated any “difficulty [it] may face in proving its case, e.g., caused by the 25 unavailability of key witnesses, because of the sudden need to obtain evidence with respect 26 to the questions previously deemed admitted.” Conlon, 474 F.3d at 622 (citation modified). 27 And fourth, while the Court is sympathetic to EPA’s concern that Knap filed this 28 motion for relief only after the deadlines for fact discovery and dispositive motions had 1 passed (Doc. 95 at 5), that alone is insufficient to show prejudice—especially given that 2 EPA had the late responses for much of the discovery period. See Conlon, 474 F.3d at 624 3 (“[W]e are reluctant to conclude that a lack of discovery, without more, constitutes 4 prejudice.”). EPA’s cases cited in reliance of its assertion that “prejudice may still be found 5 where the discovery and dispositive motion deadlines have long since passed” (id. (citation 6 modified)) are inapposite here. 7 In Lee v. Caesars Entertainment Corporation, the district court denied Rule 36(b) 8 relief where the moving party “waited nearly ten months to attempt to amend his deemed 9 admission.” 2018 WL 6591798, at *4 (D. Nev. Dec. 14, 2018). However, there, the 10 moving party only served its late responses on the requesting party after the requesting 11 party filed its summary judgment motion. Id. at *2. And in Saroyan Lumber Company, 12 Inc. v. El & El Wood Products Corporation, the Ninth Circuit, in an unpublished decision, 13 found that the district court did not abuse its discretion in denying withdrawal where the 14 party moved for relief only after the requesting party filed its summary judgment motion. 15 126 F. App’x 371, 372 (9th Cir. 2005). However, in that case, like in Lee, the moving 16 party also did not submit any late responses to the requesting party before the requesting 17 party filed its summary judgment motion. (Saroyan Lumber Co. v. El & El Wood Products 18 Corp., No. 2:01-cv-07748 (C.D. Cal.), ECF No. 102 at 2). In contrast, here, Knap served 19 his late responses on EPA more than three months before EPA filed its motion for partial 20 summary judgment. 21 The motion for Rule 36(b) relief is granted. Within two weeks of the date of this 22 order, EPA is directed to file notice, in four pages or less, informing the Court whether it 23 wishes to proceed with its original Motion for Partial Summary Judgment (Doc. 93). If 24 EPA does wish to proceed in that manner, then the Court will consider Knap’s late 25 responses (Doc. 93-1 at 43-50) when deciding EPA’s partial summary judgment motion. 26 However, because EPA agrees with Knap that “the deemed admissions alone practically 27 eliminate the presentation of the merits of the case” (Doc. 95 at 3 (citation modified), it 28 appears that EPA’s partial summary judgment motion is heavily dependent on the entirety 1 || of the RFAs being deemed admitted. Thus, the Court will allow EPA, if it so chooses, to 2|| redraft and refile its partial summary judgment motion in light of Knap’s late responses to || the RFAs. If EPA wishes to redraft and refile its partial summary judgment, the Court will 4|| set an appropriate deadline and dismiss EPA’s original motion (Doc. 93) without prejudice. 5 CONCLUSION 6 For the reasons stated above, 7 IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Doc. 75) is DENIED. 9 IT IS FURTHER ORDERED that Defendant’s Motion to Amend Answer (Doc. 10 75) is DENIED. IT IS FURTHER ORDERED that Defendant’s Cross Motion for Summary D Judgment (Doc. 96) is DENIED. B IT IS FURTHER ORDERED that Plaintiff's Motion to Strike Defendant’s Cross 14 Motion (Doc. 101) is DENIED as moot. 15 IT IS FURTHER ORDERED that Defendant’s Motion for Rule 36(b) Relief (Doc. 16 94) is GRANTED. 7 IT IS FURTHER ORDERED that Plaintiff shall file notice, within two weeks 18 from the date of this order, informing the Court as to whether it (a) wishes to proceed with 19 its original Motion for Partial Summary Judgment (Doc. 93), with the Court considering Defendant’s late responses and objections, or (b) if it wishes to submit a redrafted version of the motion to address Defendant’s late responses. Plaintiff's notice shall not exceed 7 four (4) pages. No response or reply shall be permitted. 73 Dated this 31st day of March, 2026.

25 G. Mutray now Senior United States District Judge 27 28

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