Norcal Home Design Inc v. Code Blue 360, LLC

• Court: District Court, E.D. California
• Decided: January 25, 2023
• Docket: 2:21-cv-00491
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NORCAL HOME DESIGN INC., No. 2:21-CV-00491-JAM-DMC 12 Plaintiff, 13 v. ORDER 14 CODE BLUE 360, LLC, et al., 15 Defendants. 16

17 AND RELATED THIRD-PARTY COMPLAINT. 18 19 20 Plaintiff, who is proceeding with retained counsel, brings this civil action. 21 Pending before the Court is Plaintiff’s motion to set aside this Court’s order deeming requests 22 for admissions admitted pursuant to Federal Rules of Civil Procedure 7(b)(1)(B). See ECF No. 23 50-1. The motion is supported by the declarations of Jackie Kelly, Chief Executive Officer of 24 Plaintiff, and Plaintiff’s Counsel, Anthony Gordon, Esq., with supporting exhibits 1 through 3 25 See ECF Nos. 50-2, 50-3. Defendants oppose the motion and submit the declaration of 26 Defendants’ counsel Crystal Van Der Putten, with supporting exhibits A through E. See ECF No. 27 52-1. Plaintiff submits its reply with additional declaration of Mr. Gordon with supporting 28 exhibits 1 through 2. See ECF Nos. 56, 56-1. 1 The parties appeared telephonically for a hearing before the undersigned in 2 Redding, California. Crystal Van Der Putten, Esq., appeared on behalf of Defendants and Third- 3 Party Plaintiffs; Anthony Gordon, Esq., appeared on behalf of Plaintiff; and Shawn Joost, Esq., 4 appeared on behalf of Third-Party Defendant, Quality Property Restoration, a division of Forness 5 Construction, Inc. Upon consideration of the parties’ briefs and arguments, the matter was 6 submitted. 7 8 I. SUMMARY OF DISCOVERY IN DISPUTE 9 At issue are Defendant Code Blue 360, LLC’s Requests for Admissions, see ECF 10 No. 52-1, pgs. 1-3, 9-12, 21-25. (Exs. B, D) (“Blue 360 Requests”) and Defendant Code Blue, 11 LLC’s Requests for Admissions, see ECF No. 52-1, pgs. 1-7, 14-18 (Exs. A, C) (“Blue LLC 12 Requests”), that Plaintiff seeks to have withdrawn as admitted (collectively the “Requests”). At 13 the hearing, it was represented that no responses to the Requests had been provided as of the date 14 Defendants filed their motion to compel, despite numerous extensions and promises from Plaintiff 15 to provide responses. As a result, this Court issued its order granting Defendants’ motion to have 16 the Requests deemed admitted. See ECF No. 49. Plaintiff now seeks to have these admitted 17 responses withdrawn under Federal Rule of Civil Procedure 36(b). 18 19 II. DISCUSSION 20 A. Rule 36(b) 21 Requests for admission are governed by Federal Rule of Civil Procedure 36. The 22 purpose of Rule 36 is to provide for “truth-seeking” in litigation and “efficiency in dispensing 23 justice.” Conlon v. United States, 474 F.3d 616, 622 (9th Cir. 2007) (citing Fed. R. Civ. P. 36(b) 24 advisory committee notes). Rule 36 provides that “[a] matter is admitted unless, within 30 days 25 after being served, the party to whom the request is directed serves on the requesting party a 26 written answer or objection addressed to the matter and signed by the party or its attorney.” Fed. 27 R. Civ. P. 36(a)(3). Rule 36(a)(3) is self-executing. See id. “A matter admitted under [Rule 28 36(a)(3)] is conclusively established unless the court, on motion, permits the admission to be 1 withdrawn or amended.” Fed. R. Civ. P. 36(b). A court may permit withdrawal or amendment if 2 doing so would “promote the presentation of the merits of the action and if the court is not 3 persuaded that it would prejudice the requesting party in maintaining or defending the action on 4 the merits.” Id.; see Conlon, 474 F.3d at 621 (noting Rule 36(b) permits exercise of discretion to 5 grant relief). Thus, the court has discretion to grant relief only when: (1) presentation of the 6 merits of the action will be promoted, and (2) the party who obtained the admission must not be 7 prejudiced by the withdrawal. See Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995). 8 1. Presentation of the Merits 9 The first factor of the Rule 36(b) test is satisfied when “upholding the admissions 10 would practically eliminate any presentation of the merits of the case.” Conlon, 474 F.3d at 622 11 (quoting Hadley, 45 F.3d at 1348); see Sonoda v. Cabrera, 255 F.3d 1035, 1039-40 (9th Cir. 12 2001) (finding no abuse of discretion to allow withdrawal of admissions where admissions would 13 effectively eliminate a merits determination). Here, Plaintiff has the burden of establishing that 14 upholding the admissions will foreclose its ability to present the evidence on the merits. 15 a. Blue 360 Requests 16 Generally, Plaintiff argues that by denying its request to withdraw the admissions, 17 Plaintiff would be deprived of the opportunity to present the merits of its case. See ECF No. 50- 18 1, pg. 5. Plaintiff, however, only asserts that four Blue 360 requests, 4 through 7 “go to the heart” 19 of Plaintiff’s case and by deeming these requests admitted, will prevent Plaintiff from adducing 20 evidence to the contrary. See ECF No. 50-1, pg. 5; ECF No. 56, pgs. 9-10. Further, Plaintiff 21 states “[t]hat is the reason [Plaintiff] denied these admissions requests, albeit it in an untimely 22 manner.” Id. It is not until its reply does Plaintiff set forth its argument that deeming requests 4 23 through 7 admitted would prevent Plaintiff from presenting evidence as to actual breach or 24 disruption of contractual relations and resulting damage, elements required of Plaintiff’s claims, 25 or mention the other Requests. See ECF No. 56, pgs. 3-7; see also ECF No. 56-1, pg. 2. Notably, 26 Plaintiff presents only these four Blue 360 Requests as being a death-knell to its case. See ECF 27 No. 56, pgs. 9-10. 28 / / / 1 Despite Defendants’ assertions that Plaintiff has failed to show how the admission 2 of these particular Requests would prevent Plaintiff from presenting evidence as to the other 3 named Defendants, deeming admitted these four Requests would be dispositive as to Blue 360 4 and prevent Plaintiff from presenting any evidence on the merits as to Blue 360’s liability. As a 5 result, Plaintiff has met it’s burden as to Blue 360’s Requests, 4 through 7, as identified in the 6 motion and reply. 7 As to Requests 1 through 3, and 8, Plaintiff does not provide any argument 8 pertaining to whether or not these would be dispositive of Plaintiff’s claims and prevent Plaintiff 9 from presenting evidence on the merits. See, e.g., ECF No. 50-1, pg. 5; ECF No. 56, pgs. 3-5. In 10 its motion, Plaintiff argues only that it would be “deprived of the opportunity of presenting its 11 case” which is “demonstrated by reference to [Requests] 4, 5, and 6. . . .”; in its reply, Plaintiff 12 argues as to Requests 1 through 3 that Plaintiff does not have knowledge of these facts and as to 13 Request 8, that Defendants have more knowledge on the issue than Plaintiff. See id. Generally, 14 Plaintiff fails to tell the Court how each of these Requests would close the door to Plaintiff’s case. 15 See id. A review of Requests 1 through 3, and 8, suggest, however, that these are as decisive as 16 Requests 4 through 7: whether Blue 360 and Blue LLC are separate entities, whether Blue 360 17 has been wrongly named as a Defendant, and who is Defendant Tousignant’s employer. See ECF 18 No. 52-1, pgs. 1-3, 9-12, 21-25. (Exs. B, D). These too appear to “go to the heart” of Plaintiff’s 19 case for the same reasons as Requests 4 through 7. 20 As to Blue 360 Requests 9 through 15, Plaintiff fails to offer any argument as to 21 how these requests would prejudice Plaintiff if such admissions are allowed to stand. These 22 requests pertain to Jeremy Brannan’s employment status, criminal background, and arrest. See id. 23 During the hearing, Plaintiff did not argue that these were dispositive to its case or that by letting 24 these admissions stand would preclude Plaintiff from presenting evidence on the merits. 25 Plaintiff’s primary argument was that the information was not within Plaintiff’s control because 26 Mr. Brannan was an independent contractor. In fact, the Court specifically asked Plaintiff to 27 address the prejudice factor in this regard and Plaintiff responded that it was unable to provide 28 any more information than was provided in the briefing. These statements do not persuade this 1 Court that by allowing such admissions to stand Plaintiff will be precluded from adducing 2 testimony on the merits. By failing to show how Blue 360 Requests 9 through 15 prejudice 3 Plaintiff if allowed to stand and prevents Plaintiff from presenting evidence on the merits, 4 Plaintiff has not met its burden with respect to Blue 360 Requests 9 through 15. 5 Therefore, as to Blue 360 Requests 1 through 8, Plaintiff has met its burden to 6 show that deeming these requests admitted will prevent Plaintiff from adducing evidence on the 7 merits, the first factor under a Rule 36(b) reconsideration. As to Blue 360 Requests 9 through 15, 8 Plaintiff has failed to establish prejudice; as such, Blue 360 Requests 9 through 15 will stand as 9 admitted. 10 b. Blue LLC Requests 11 As to Blue LLC Requests 1 through 9, Plaintiff does not detail in its motion any 12 argument whatsoever pertaining to how these Requests are dispositive of Plaintiff’s claims and in 13 what way the admissions prevent Plaintiff from presenting evidence on the merits. See, e.g., ECF 14 No. 50-1, pg. 5. Plaintiff argues generally that it would be deprived of opportunities to present its 15 case, by making references only to Blue 360 Requests 4, 5, 6, and 7 but fails to provide any 16 argument as to the prejudicial value of these requests. See id.; see also ECF No. 56, pgs. 7-11. 17 Blue LLC Requests 1 through 9 pertain to employment status and arrest of 18 Christina Cano, and the reporting of the arrests of Ms. Cano and Mr. Brannan by The Paradise 19 Post and the Daily Republic. See ECF No. 52-1, pgs. 1-7, 14-18 (Exs. A, C). In its reply, 20 Plaintiff argues that such Requests were denied because Ms. Cano was an independent contractor 21 and not an employee. See ECF No. 56, pgs. 7-10. With respect to the other Blue LLC Requests 22 seeking admissions as to various publications made by The Paradise Post and The Daily 23 Republic, Plaintiff argues that Rule 36 requires the responding party only to make a reasonable 24 inquiry into information, which “is limited to persons and documents within the party’s control”; 25 thus, Plaintiff denied such admissions. ECF No. 56, pg. 8 (citations omitted). These statements 26 are also not convincing. 27 / / / 28 / / / 1 By failing to show how Blue LLC Requests 1 through 9 prejudice Plaintiff if 2 allowed to stand and prevent Plaintiff from presenting evidence on the merits, Plaintiff has not 3 met its burden with respect to Blue LLC Requests 1 through 9; as such, Blue LLC Requests 1 4 through 9 will stand as admitted. 5 2. Prejudice to Defendants 6 With respect to the second factor, Defendants have the burden of establishing 7 prejudice. See Fed. R. Civ. P. 36(b); see Conlon, 474 F.3d at 622. The prejudice contemplated 8 by Rule 36(b) is not merely that the party who obtained the admission will now have to convince 9 the factfinder of its truth, but instead, it relates to the difficulty a party may face in proving its 10 case, at trial, if such admission is withdrawn. See id. at 622-23; Hadley, 45 F.3d at 1348. 11 Inconvenience does not rise to the level of prejudice that justifies a denial of a motion to 12 withdraw. See Sonoda, 255 F.3d at 1039 (citing Hadley, 45 F.3d at 1349). However, timing of a 13 motion to withdraw such an order is persuasive. 999 v. C.I.T. Corp., 776 F.2d 866, 869 (9th Cir. 14 1985) (concluding motion to withdraw made during middle of trial, after plaintiff had relied 15 heavily on the admissions, was prejudicial; once trial begins, a more restrictive standard is 16 applied because prejudice to the parties is greater); see Santana Row Hotel Partners, L.P. v. 17 Zurich Am. Ins. Co., No. C05-00198 JWHRL, 2007 WL 1140464, at *5 (N.D. Cal. Apr. 17, 18 2007) (responding a year and a half after defendants originally served with requests for 19 admission, but since no prejudice and trial not set for several months, motion to withdrawn 20 admissions granted). Cases finding prejudice to support a denial generally show a much higher 21 level of reliance on the admissions. See Hadley, 45 F.3d at 1349. 22 Plaintiff argues that, given the current pretrial dates, and the fact that Plaintiff has 23 now provided full and complete responses to Defendants’ discovery requests, including 24 production of all documents, there is no prejudice to Defendants in granting Plaintiff’s request to 25 withdraw the deemed admissions. See ECF No. 50-1, pg. 6; ECF No. 56, pgs. 6-7. While 26 Defendants argue in their opposition various reasons for prejudice, including difficulty locating 27 witnesses, potential of forgotten facts that Defendants seek to be admitted, and a waste of 28 resources, see ECF No. 52, pgs. 6-7, during the hearing, Defendants’ counsel candidly admitted 1 that there was no prejudice. 2 Defendants have the burden of proving that withdrawal of the admissions would 3 be sufficiently prejudicial. Because the discovery deadlines are not until March 2023, trial is not 4 set until November 2023, and Defendants conceded during the hearing that there is no prejudice 5 in withdrawing certain requests, Defendants do not satisfy their burden. Consequently, because 6 Defendants cannot show that there will be prejudice from the Court’s withdraw of certain 7 admissions, the second factor, prejudice to the party, has not been met. 8 3. Other Factors 9 Even if both Rule 36(b) factors are satisfied for withdrawing an admission, a court 10 may still deny relief. See Conlon, 474 F.3d at 625. Rule 36 sets forth only the minimum 11 requirements a party must meet before an admission may be withdrawn. See id. Although the 12 two factors in the Rule’s text are necessary conditions of withdrawal, the court may also consider 13 other factors, such as whether the party can show good cause for the delay in responding. See 14 Conlon, 474 F.3d at 621, 624-25 (considering factors such as whether the motion was delayed 15 without good cause, whether the moving party has a strong case on the merits, and whether the 16 admissions were used to obtain unfair tactical advantage). Good cause requires the party to show 17 that despite diligence, the deadline could not be met. See Johnson v. Mammoth Recreations, Inc., 18 975 F.2d 604, 609 (9th Cir. 1992); Sprague v. Fin. Credit Network, Inc., No. 1:18-CV-00035- 19 SAB, 2018 WL 4616688, at *4 (E.D. Cal. Sept. 25, 2018). 20 Plaintiff argues that “this is not the case of a recalcitrant party who is evading its 21 discovery obligations.” ECF No. 50-1, pg. 6. Ms. Kelly declares that the delay in providing 22 responses and documents was due to the inability to access the electronic files, as the files and 23 computer system had been corrupted and crashed. See ECF No. 50-2, pg. 2. Ms. Kelly attested 24 to the fact that back in March, 2022, approximately a week after receipt of the discovery requests, 25 it was first discovered that she was unable to retrieve information from Plaintiff’s computer 26 system. See id. As a result, Ms. Kelly was required to retrieve paper files, electronic back up 27 files, and other documents to recreate a database in order to respond to the requests, which 28 process lasted from March 2 through June 30, 2022. See id. Although Plaintiff’s counsel 1 suggests that the delay was excusable, the reasons proffered by Plaintiff and Plaintiff’s counsel is 2 not considered to be good cause. 3 On the one hand, Plaintiff does not offer a compelling justification for its failure to 4 respond timely to Defendants’ Requests. After Defendants served their Requests on February 15, 5 2022, Plaintiff failed to respond until August 12, 2022, even though Plaintiff’s counsel 6 corresponded extensively with Defendants’ counsel in the interim. In fact, Plaintiff’s counsel 7 repeatedly promised responses starting May 2, week after week, even though Ms. Kelly attests 8 that it wasn’t until after July 1, 2022 that she had allegedly completed retrieval of the files and 9 hard copies documents and had begun preparation of the responses. See ECF No. 50-2, pg. 2, ¶ 5. 10 Moreover, although Defendants granted Plaintiff multiple extensions of time to serve responses, 11 Plaintiff offers no credible reason, much less good cause, for its failure to provide responses for 12 nearly five months. Based on the information sought to be admitted, the Court is unable to 13 conclude, and Plaintiff offers no substantive reason, why it was necessary to build a database of 14 documents in order to admit or deny the Requests, as Plaintiff asserts as the cause for the delay. 15 On the other hand, denying Plaintiff’s motion to withdraw based solely on a lack 16 of good cause for delay would undermine “the public policy favoring the disposition of cases on 17 their merits rather than on technical violations of procedural rules. . . .”. Doctors Med. Ctr. of 18 Modesto, Inc. v. Principal Life Ins. Co., No. 1:10–cv–00452–LJOSKO, 2011 WL 831421, at *3 19 (E.D. Cal. Mar. 3, 2011). When analyzing Rule 36(b), “‘a court should not go beyond the 20 necessities of the situation to foreclose the merits of controversies as punishment’” for 21 misbehavior. Hadley, 45 F.3d at 1350 (quoting Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 22 619 (9th Cir. 1985)). Because some of the admissions go to ultimate issues of liability, denying 23 Plaintiff’s motion to withdraw all admissions would functionally decide the case in Blue 360’s 24 favor. See Hydrotech, Inc. v. Bara Infoware, Inc., No. 109CV00069-OWWSMS, 2009 WL 25 2460893, at *6 (E.D. Cal. Aug. 10, 2009) (granting motion to withdraw admissions because rule 26 36(b) factors met, despite carelessness of Plaintiff and its counsel with respect to discovery 27 obligations). As for the merits of Plaintiff’s case, it is premature at this stage to decide whether 28 Plaintiff has a strong case on the merits and the Court declines to use its discretionary power to 1 deny Plaintiff’s motion based on insufficient good cause for its untimely responses. 2 Thus, because Plaintiff has met is burden with respect to Blue 360 Requests 1 3 through 8 and Defendants have failed to show prejudice, the Court grants Plaintiff’s motion as to 4 Blue 360 Requests 1 through 8. As to Blue 360 Requests 9-15 and Blue LLC Requests 1 through 5 9, Plaintiff’s motion to withdraw these admissions is denied. 6 B. Sanctions 7 Courts possess the inherent power to protect the orderly administration of justice 8 and to preserve the dignity of the tribunal. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 9 (1980). A court’s authority to award sanctions is broad. Miranda v. S. Pac. Transp. Co., 710 F.2d 10 516, 520-21 (9th Cir. 1983). “The decision whether to penalize a party for dilatory conduct 11 during discovery proceedings is committed to the sound discretion of the trial court.” Bollow v. 12 Fed. Rsrv. Bank of San Francisco, 650 F.2d 1093, 1102 (9th Cir. 1981). 13 Akin to an award of reasonable costs to a prevailing party on a discovery motion, 14 courts may require a party withdrawing admissions to pay a sanction to the opposing party to 15 compensate for the expense caused by its untimely response. See Hadley, 45 F.3d at 1350 16 (discussing how court could have ordered Plaintiff or his attorney to pay a substantial monetary 17 fine and/or opposing party’s increased costs and expenses as less severe alternative to allowing all 18 admissions to stand); see also Santana Row, 2007 WL 1140464, at *5 (ordering defendants’ 19 counsel to pay monetary sanctions for the unnecessary expenses caused by the failure to timely 20 serve the RFA responses); Mid Valley Bank v. N. Valley Bank, 764 F. Supp. 1377, 1391 (E.D. 21 Cal. 1991) (ordering party withdrawing admissions to pay reasonable cost of preparing opposition 22 to motion to withdraw admissions); Duarte Nursery, Inc. v. United States Army Corps of Eng’rs, 23 No. 2:13-CV-02095-KJM-AC, 2015 WL 7188227, at *4-5 (E.D. Cal. Nov. 16, 2015) (noting that 24 a court may impose sanctions, including opposing party’s increased costs and expenses, even 25 when court grants motion to withdraw deemed admissions). Sanctions for violations of local 26 rules and Federal Rules of Civil Procedure are appropriately directed at the lawyers responsible, 27 rather than the litigants. See Miranda, 710 F.2d at 521. 28 / / / 1 While denying a motion to withdraw admissions would effectively impose a 2 “severe sanction of ordering a matter admitted” based on, essentially, a discovery dispute, see 3 Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1247 (9th Cir.1981), granting a motion without 4 additional penalties presents another dilemma in that it “tacitly implies that a[n] . . . attorney’s 5 failure to abide by the rules of practice is of little or no consequence.” Doctors Med. Ctr., 2011 6 WL 831421, at *3. Improper conduct “drives up the expense of litigation and evidences a 7 disregard for the rules of practice.” See id. at *8 (expressing concern over the manner in which 8 the party responded to the admissions and delay in providing amended responses). The discovery 9 rules were designed to provide parties with tools to fairly litigate cases on the merits. See Fed. R. 10 Civ. P. 1 (“[These Rules] should be construed, administered, and employed by the court and the 11 parties to secure the just, speedy, and inexpensive determination of every action and 12 proceeding.”). The Rules, and the discretionary sanctions available to this Court, are meant to 13 encourage fairness and to avoid “obstructionism, gamesmanship, and tactical maneuvering 14 intended to drive up the costs of litigation and unfairly harass the other party.” Jimena v. UBS AG 15 Bank, No. CV-F-07-367 OWW/SKO, 2010 WL 4644408, at *2 (E.D. Cal. Nov. 5, 2010). 16 Here, while the Court has declined to deem all of Plaintiff’s responses to the 17 Requests admitted, the Court has particular concerns regarding the manner in which Plaintiff 18 responded and seems to have stalled in providing the responses after continually agreeing to do 19 so. For over five months, Defendants’ counsel engaged in multiple email exchanges attempting 20 to solicit the missing responses from Plaintiffs. See, generally, ECF No. 49. Ms. Kelly and 21 Plaintiff’s counsel claim that Plaintiff was unable to provide responses to the Requests due to the 22 need to recreate an 8,000 document database containing invoices, customer information, 23 summaries, notes, phone logs, data, inventories, and photographs. See ECF No. 50-2, pg. 2. But 24 the substance of the Requests, as discussed above, did not, in fact, require such a database. Based 25 upon the information requested, not only could the responses have been timely provided, but 26 when Plaintiff did finally provide the responses, more than five months later, Plaintiff denied 27 each and every one of the Requests – a response that in this Court’s view did not require the use 28 of a database. 1 If, as Plaintiff argues, Plaintiff was not required to respond under Rule 36 because 2 Rule 36 requires the responding party only to make a reasonable inquiry into information, which 3 “is limited to persons and documents within the party’s control,” ECF No. 56, pg. 8, or Plaintiff 4 did not have the requisite information to admit or deny the Requests pertaining to Defendants’ 5 entity status, then Rule 36 affords relief. Rule 36 provides that “[i]f a matter is not admitted, the 6 answer must specifically deny it or state in detail why the answering party cannot truthfully admit 7 or deny it.” Rule 36(a)(4). A party may “assert lack of knowledge or information as a reason for 8 failing to admit or deny only if the party states that it has made reasonable inquiry and that the 9 information it knows or can readily obtain is insufficient to enable it to admit or deny.” Id. But 10 Plaintiff did not respond in this fashion; instead, Plaintiff simply denied the Requests and now 11 argues lack of knowledge to respond as justification for its untimely denials. 12 The Court finds no good cause for Plaintiff’s failure to timely respond to the 13 Requests and that sanctions are warranted based on the conduct exhibited in this matter, as 14 discussed above. Consequently, the Court finds it appropriate to award reasonable fees and costs 15 to Defendants for opposing Plaintiff’s motion under Federal Rule of Civil Procedure 37 to be paid 16 by Plaintiff’s counsel. Further, the Court will direct Plaintiff’s counsel to show cause why 17 sanctions in the amount of $2,500.00 should not be ordered for the apparent gamesmanship and 18 mishandling of this matter. See Miranda, 710 F.2d at 521-23 (holding district court had authority 19 to impose sanction and requiring opportunity to show cause before imposition of monetary 20 sanctions for failure to carry out responsibilities as officer of court). 21 22 IV. CONCLUSION 23 Public policy favors resolving a case on its merits. See Moneymaker v. CoBen 24 (In re Eisen), 31 F.3d 1447, 1454 (9th Cir. 1994). Given that completion of ADR is set for 25 December 30, 2022, the last day to complete discovery is March 31, 2023, and trial is not until 26 November 27, 2023, on balance, it is appropriate to permit withdrawal of deemed admissions to 27 Blue 360 Requests numbers 1 through 8, as both factors of Rule 36(b) have been met. Although 28 Plaintiff lacks good cause for its failure to respond to the Requests in a timely manner, good 1 || cause is merely a factor to consider in whether to permit withdrawal. See Conlon, 474 F.3d at 2 || 625. With respect to Blue 360 Requests 9 through 15 and Blue LLC Requests 1 through 9, 3 || neither Plaintiff nor Defendants have established the required prejudice and thus, such Requests 4 | stand admitted. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion to set aside, ECF No. 50, is: 7 a. GRANTED as to Blue 360 Requests 1 through 8; 8 b. DENIED as to Blue 360 Requests 9 through 15; and 9 C. DENIED as to Blue LLC Requests 1 through 9. 10 2. Reasonable costs will be awarded to Defendants under Federal Rule of 11 || Civil Procedure 37 to be paid by Plaintiff; Defendants shall file their costs bill within seven days 12 | of the date of this order; Plaintiff may file a response within seven days of service of 13 || Defendants’ costs bill; thereafter, the Court will award reasonable expenses associated with the 14 | current motion by separate order. 15 3. No later than fourteen days after the date of this order, Plaintiff shall serve 16 || amended responses to the Requests in accordance with this order. 17 4. Plaintiff's counsel is ordered no later than fourteen days after the date of 18 || this order, to show cause in writing why sanctions in the amount of $2,500.00 should not be 19 | ordered against Plaintiff's counsel. 20 Dated: January 24, 2023 Co 21 DENNIS M. COTA 02 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 12