Stubbs v. The Coleman Company, Inc.

• Court: District Court, D. Nevada
• Decided: August 26, 2022
• Docket: 2:21-cv-02090
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 STEPHEN PORTER STUBBS, an Case No. 2:21-cv-02090-CDS-EJY individual, 5 Plaintiff, ORDER 6 v. 7 THE COLEMAN COMPANY, INC., a 8 foreign corporation; DOES I through XX; and ROE CORPORATIONS I through XX, 9 inclusive,

10 Defendants.

11 12 Pending before the Court is Plaintiff Stephen Porter Stubbs’ Countermotion to Amend 13 Discovery Responses filed together with his Opposition to Defendant’s Motion for Summary 14 Judgment. ECF No. 19. The Court has considered Plaintiff’s Countermotion, the Responses, and 15 the Reply.1 16 I. Summary Background Pertinent To The Countermotion To Amend Discovery. 17 On March 7, 2022, The Coleman Company (hereinafter “Defendant” or “Coleman”) 18 propounded its First Set of Requests for Admissions on Plaintiff. ECF No. 16-8. A review of 19 exhibits and filings relating to the Countermotion to Amend reveals Plaintiff did not respond to these 20 Requests. Plaintiff does not seek leave of court to provide responses now. ECF No. 19 at 10. 21 Defendant served its second set of Requests for Admissions (sometimes the “RFAs”) on April 13, 22 2022. ECF No. 16-10. It is undisputed that the due date for responses to these RFAs was May 13, 23 24

25 1 Defendant argues the Court should deny Plaintiff’s Countermotion to Amend because it was improperly filed. ECF No. 22 at 3. That is, Defendant argues that U.S. District Court for the District of Nevada Local Rule IC 2-2(b) 26 required Plaintiff to file his Countermotion to Amend Discovery as a separate event. That is true. However, to deny the Countermotion on this basis alone would elevate form over substance to a degree the Court rejects in this instance. 27 Compliance with Local Rules is important and the Court does not suggest Local Rules can be ignored. But in light of 1 2022 (a Friday), and responses were not provided by Plaintiff until May 16, 2022 (a Monday).2 ECF 2 Nos. 19 at 106; 22 at 6. 3 Defendant relies on the text of Fed. R. Civ. P. 36 and the Court’s discretionary powers to 4 argue the Court should find the RFAs admitted. Defendant points out that under the Rule the 5 responses were late and thus may be deemed admitted. Defendant also argues it was prejudiced by 6 Plaintiff’s delay and that Plaintiff’s overall dilatory conduct with respect to discovery should not be 7 excused. Plaintiff argues that he responded to the RFAs one court-day or three calendar days late, 8 case law supports Plaintiff’s request to amend his responses such that the responses will have effect, 9 the RFAs were improper in the first place because they were propounded for an improper purpose, 10 and Defendant suffered no prejudice.

11 II. The Law Applicable To Plaintiff’s Request To Amend His Responses to Defendant’s Second Set Of RFAs. 12 13 In Conlon v. U.S., 474 F.3d 616 (9th Cir. 2007), the Court of Appeals considered whether 14 the plaintiff should be excused from his failure to timely respond to requests for admissions properly 15 propounded by the government. The plaintiff was advised in the service of the requests that he had 16 thirty days to respond. Id. at 619. When the plaintiff failed to respond to the requests, the 17 government sent a letter advising him of the impact of his failure. Id. at 620. Thereafter, the 18 government filed a motion for summary judgment three days before the deadline to do so. Id. Three 19 days after that, the plaintiff filed a motion seeking to undue his failure to respond while 20 simultaneously serving responses to the request for admissions. Id. The plaintiff’s motion for relief 21 was denied and the government’s motion for summary judgment was granted. Id. at 621. On appeal, 22 the court considered whether the district court’s denial of the plaintiff’s motion for relief and grant 23 of summary judgment should be reversed. Id. 24 The Ninth Circuit recognized the “permissive, not mandatory” language in Fed. R. Civ. P. 25 36(b) finding “[t]he rule permits the district court to exercise its discretion to grant relief from an

26 2 Plaintiff’s Countermotion does not technically seek to amend responses provided to Defendant’s second set of RFAs. Rather, Plaintiff seeks an order allowing the responses provided three calendar days (or one court day) late to be 27 deemed timely submitted. Plaintiff’s request, if granted, impacts the Motion for Summary Judgment filed by Defendant 1 admission made under Rule 36(a) only when (1) the presentation of the merits of the action will be 2 subserved, and (2) the party who obtained the admissions fails to satisfy the court that withdrawal 3 or amendment will prejudice that party in maintaining the action or defense on the merits.” Id. 4 (internal citations and quote marks omitted). The Ninth Circuit stated that requests for admissions 5 “serve two important goals: truth-seeking … and efficiency in dispensing justice.” Id. at 622 6 (citation omitted). The court warned that admission requests should not be used toward the goal of 7 simply obtaining concessions to essential elements of a claim. Id. (citation omitted). 8 The court applied a two part test for determining whether a “court may excuse a party from 9 its deemed admissions” that includes “when (1) the presentation of the merits will be aided and (2) 10 no prejudice to the party obtaining the admission will result.” Id. (case citation omitted, but relying 11 on Fed. R. Civ. P. 36(b)). Because summary judgment was granted based on the deemed admissions, 12 and “upholding the deemed admissions eliminated any need for a presentation on the merits,” the 13 Court found the first prong of the two part test satisfied by the plaintiff. Id. The question of prejudice 14 required a more detailed analysis. 15 “When undertaking a prejudice inquiry under Rule 36(b), district courts should focus on the 16 prejudice that the nonmoving party would suffer at trial.” Id. at 623 citing, inter alia, two Tenth 17 Circuit cases and one Eighth Circuit case including: Raiser v. Utah County, 409 F.3d 1243, 1247 18 (10th Cir. 2005) (“finding no prejudice when the nonmoving party had relied on the deemed 19 admissions for only a two-week period in preparing its summary judgment motion”); Kirtley v. 20 Sovereign Life Ins. Co. (In re Durability, Inc.), 212 F.3d 551, 556 (10th Cir. 2000) (“holding 21 categorically that preparing a summary judgment motion by relying on admissions does not 22 constitute prejudice”); and RDIC v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994) (“same”). Noting the 23 decision by the Eighth and Tenth Circuits, the court in Conlon found the failure to do discovery 24 based on an opposing party’s failure to respond to request for admissions, leading to facts deemed 25 admitted, “without more,” was not prejudicial. Id. at 624 (citation omitted). The court stated that 26 “[t]he district court could have reopened the discovery period,” and that “prejudice must relate to 27 the difficulty a party may face in providing its case at trial.” Id. (citations omitted); see also Sonoda 1 party who obtained the admissions will now have to convince the factfinder of the truth; rather it 2 relates to the difficulty a party may face in proving its case, for example by the unavailability of key 3 witnesses in light of the delay”) (citation omitted).

4 III. Granting Plaintiff’s Motion Will Aid In Presentation Of The Merits And Prejudice To Defendant Will Not Result. 5 6 Here, Coleman filed its Motion for Summary Judgment three days after the responses to its 7 second set of RFAs were received on May 16, 2022 (see ECF No. 16 filed on May 19, 2022), which 8 itself was three calendar days (or one court day) after the responses were due. That is, the responses 9 to Defendant’s RFAs were due May 13, the responses were received May 16, and the Motion for 10 Summary Judgment was filed on May 19, 2022. At the time Coleman filed its Motion for Summary 11 Judgment, discovery was not closed. In fact, the close of discovery is October 7, 2022. ECF No. 11 12 at 9. The deadline for filing dispositive motions is December 7, 2022. Id. Thus, when Plaintiff 13 responded to Defendant’s second set of RFAs on May 16, instead of May 13, 2022, Defendant had 14 four and one-half months left within which to conduct discovery without seeking an extension of 15 time. Defendant also was not facing a trial date, which still is not set in this matter. 16 Coleman argues the prejudice in this case arises not only from the late responses to the second 17 set of RFAs, but also because “[i]f this Court were to withdraw the deemed admissions, Plaintiff 18 would be unjustifiably rewarded when he has failed to act diligently in virtually every aspect of 19 discovery … causing prejudice to Coleman’s ability to marshal its defense.” ECF No. 22 at 7. 20 Defendant cites to numerous examples of Plaintiff’s discovery failures; however, Defendant does 21 not provide evidence of efforts to resolve these failures (except one related to medical releases), has 22 not filed a motion to compel Plaintiff’s compliance with discovery, and did not otherwise bring any 23 concern regarding Plaintiff’s discovery conduct to the Court’s attention prior to raising the issue in 24 response to Plaintiff’s Countermotion. 25 Nevertheless, Defendant details Plaintiff’s failures regarding discovery on pages 7 through 26 12 of its Opposition to Plaintiff’s Countermotion. ECF No. 22 at 7-12. By way of example, Plaintiff 27 has not responded to interrogatories and document requests served in March 2022. Id. at 8-9. 1 Defendant offers nothing to show it followed up with Plaintiff regarding his failure to respond to 2 written discovery (id. at 8-9), and only acted on the failure to provide the medical releases once they 3 were returned by Plaintiff in an alternate form on May 16, 2022. Id. at 10. Defendant’s request for 4 an IME date was sent to Plaintiff on May 10, 2022, and its request for school records was sent to 5 Plaintiff on May 17, 2022. Id. at 10-11. These requests were made shortly before the parties entered 6 into a stipulation to stay discovery. ECF No. 17. 7 Defendant says that when Plaintiff failed to respond to discovery it “had no choice other than 8 to rely on the deemed admissions.” Id. at 9. At minimum, the Court finds this statement inaccurate 9 given that discovery does not close until October. Defendant could have sought compliance from 10 Plaintiff beyond sending a few emails in follow up.3 Indeed, as indicated above, Defendant did not 11 engage in meet and confers regarding Plaintiff’s failures with the exception of a single teleconference 12 regarding medical releases after releases (albeit unacceptable releases) were received. 13 Defendant has not filed a single motion to compel responses to propounded discovery or 14 releases sent to Plaintiff. With respect to the discovery requests propounded in February and March 15 2022, Defendant cannot sit back for months and do nothing only to then use Plaintiff’s failure as a 16 basis to deny amendment to responses to RFAs provided one court day (three calendar days) late.4 17 And, with respect to the requests first made by Defendant on May 10 and 17, the stipulation to stay 18 discovery was filed on May 20, 2022. ECF Nos. 17, 22-13. Hence, Plaintiff’s failure to respond to 19 the request made in May do not support Defendant’s claim of dilatory conduct. 20 The Court also finds Defendant’s reliance on S.E.C. v. Global Express Capital Real Estate 21 Inv. Fund, 1, LLC, 289 Fed.Appx. 183 (9th Cir. 2008) to support its claim of prejudice is misplaced. 22 Unlike the case at bar, the Global Express party seeking to withdraw admissions filed her motion 23 more than three months after written discovery had closed. Id. at 191. The district court found the 24 moving party lacked good cause for her three month delay and that the “delay was part of her 25 manipulative approach to the litigation and her abuse of the privilege against self-incrimination.” 26

3 Defendant’s emails to Plaintiff do not satisfy the requirements of the U.S. District Court for the District of 27 Nevada Local meet and confer Rules. See LR IA 1-3(f). 1 Id. Whether Plaintiff’s discovery failures, other than the late responses to Defendant’s second set of 2 RFPs, are part of a “manipulative approach” to this litigation is debatable. Plaintiff explains that his 3 failures were due to “miscommunication” in his office and that he was preparing responses to “initial 4 discovery” when a stay of discovery was agreed upon. ECF No. 23 at 5. Plaintiff further contends 5 that he will respond to discovery once the stay of discovery is lifted. Id. With respect to the 6 inspection sought by Defendant, Plaintiff states he advised Defendant that some of the items 7 Defendant sought to inspect were in California before the inspection occurred. Id. 8 While the Court finds Plaintiff’s excuses with respect to discovery propounded in February 9 and March lack merit, the Court also finds Defendant could have raised Plaintiff’s failure long before 10 Defendant responded to Plaintiff’s instant motion. The same is true for the medical releases, 11 concerns over which appear to be substantively resolved (although Plaintiff did not provide the 12 updated releases before the stipulation to stay discovery was filed). ECF No. 22 at 10. Defendant 13 allowed Plaintiff’s failure to participate in these aspects of discovery without repercussion for 14 months without alerting the Court—that is, until the instant Countermotion was filed. The Court is 15 hard pressed to find prejudice based on Plaintiff’s past practices when Defendant apparently did not 16 find them sufficiently concerning to hold a meet and confer let alone file a motion to compel. 17 The Court finds the first prong for excusing Plaintiff from his deemed admissions is met. 18 Allowing Plaintiff to “amend” his late responses to Defendant’s second set of RFAs to include the 19 responses ultimately provided will aid in the presentation of the merits of this case. The second 20 prong is a closer call, but the Court finds Defendant fails to demonstrate prejudice. In sum, the Court 21 finds Plaintiff’s past failures do not support the conclusion that responses to RFAs provided one 22 court day (three calendar days) late, before the Motion for Summary Judgment was filed, and long 23 before the deadline for filing dispositive motions had run, prejudiced Defendant’s ability to defend 24 this case at trial. Defendant presented nothing to support such a conclusion. 25 More specifically, the one or three day delay in May 2022, depending on whether court or 26 calendar days are counted, was not prejudicial in light of the fact that discovery closes in October 27 and the dispositive motion deadline is in December 2022. Thus, the late admission responses were 1 || Defendant chose to stipulate to a stay of discovery and file an early motion for summary judgme 2 || does not demonstrate prejudice. Defendant does not contend, and therefore has not demonstrate 3 || that Plaintiff's late responses prevents it from access to key witnesses or other evidence. Th 4 || Defendant may now have to prove elements of its defense it otherwise might not have had to pro 5 || 1s not prejudice. There is no evidence of any actual prejudice that arises from Plaintiff's respons 6 || to Defendant’s second set of RFAs other than the request for admissions no longer being admittec 7 \| IV. Order 8 Accordingly, and based on the foregoing, IT IS HEREBY ORDERED that portion □ 9 || Plaintiff's filing at ECF No. 19 pertaining to the Countermotion to Amend Discovery Responses 10 |} GRANTED. 11 Dated this 26th day of August, 2022. 12 ) asp Pied pascal crucial 13 . YOUCH vd 4 UNITED STATES MAGISPRATE JUDGE

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