NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUX EAP, LLC, a Wyoming Limited No. 19-55453
Liability Company,
D.C. No.
Plaintiff-counter- 5:17-cv-01359-DMG-SP
defendant-Appellant,
v. MEMORANDUM*
KATHLEEN A. BRUNER; ROBERT
BRUNER,
Defendants-counter-
claimants-Appellees,
v.
PHIL NEUMAN; COLIN C. CONNER II,
Counter-defendants-
Appellants.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted February 12, 2020
Pasadena, California
Before: BERZON, TALLMAN, and R. NELSON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Lux EAP, LLC (“Lux”) appeals from a certified final judgment pursuant to
Federal Rule of Civil Procedure 54(b) in favor of Appellees Kathleen and Robert
Bruner following the district court’s grant of partial summary judgment on all of
the claims raised by Lux and some of the counterclaims raised by the Bruners, and
its denial of Lux’s motions to withdraw admissions and to strike pursuant to
Federal Rules of Civil Procedure 36(b) and 12(f). On appeal, Lux argues that the
district court abused its discretion by not granting its motions, and also that the
district court erred in its interpretation of the parties’ contracts. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
The district court did not abuse its discretion in denying Lux’s motion to
withdraw admissions. The court concluded after a hearing that both prongs of
Rule 36(b) were met. But it nonetheless exercised its discretion to deny Lux’s
motion, holding that Lux had not shown good cause for its delay in seeking relief
from the deemed admissions because, although Lux had been aware of its
admissions for weeks, it failed to file a motion to withdraw them prior to the
summary judgment hearing. The court could have granted Lux’s motion to
withdraw on these facts, but it was not obligated to do so. See Fed. R. Civ. P.
36(b); Conlon v. United States, 474 F.3d 616, 621–25 (9th Cir. 2007). The court
properly weighed the Rule 36(b) factors, considered the relevant caselaw, the
history of the parties’ conduct of the litigation, and exercised its discretion to deny
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Lux’s motion.
The district court likewise did not abuse its discretion in denying Lux’s
motion to strike. The timeliness argument Lux sought to strike was raised in the
Bruners’ summary judgment motion. But even if the argument were first raised in
the Bruners’ reply brief, it was not an abuse of discretion for the district court to
consider it because the district court gave Lux the opportunity to respond in
supplemental briefing—an offer Lux declined. See El Pollo Loco, Inc. v. Hashim,
316 F.3d 1032, 1040–41 (9th Cir. 2003).
Since the district court did not err in refusing the request to withdraw the
damaging admissions and relying upon them in awarding partial summary
judgment to the Bruners, we need not reach the alternative ground that the contract
language did not support LUX’s argument that the management agreement was in
fact a sale of the company.
Costs are awarded to Appellees.
AFFIRMED.
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FILED
LUX EAP, LLC v. Bruner, No. 19-55453
APR 24 2020
BERZON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. I would hold that the district court abused its
discretion when it denied Lux’s motion to withdraw admissions.
This case is quite different from Conlon v. United States, 474 F.3d 616,
625 (9th Cir. 2007), in which the defendant warned the plaintiff repeatedly
over a two-month period that he had missed the deadline to respond to the
defendant’s requests for admissions and the plaintiff “could not show good
cause for his dilatory conduct.” Here, Lux e-mailed its responses to the
Bruners on the day they were required to be served, and served them by
mail two days later. There is no dispute that the Bruners received the e-
mailed responses on the day Lux sent them. Thus, the “delay” relied upon
by the district court was just a technical failure to follow the service rules,
which did not allow service by e-mail. There was no actual delay in
communicating responses, and so no possible prejudice to the Bruners.
Moreover, the Bruners themselves did not identify the e-mail service
problem in their opening brief on summary judgment. Instead, they
miscalculated the deadline and argued that Lux had failed to meet the
incorrectly calculated deadline. It was not until their reply brief that the
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Bruners first indicated that Lux’s responses were late because e-mail
service was not permitted. At that point, Lux’s counsel made the unwise
but understandable decision to wait to move to withdraw the admissions
until the already-scheduled hearing on the motions for summary judgment
two weeks later, instead of filing a disfavored ex parte motion.
Given the mistakes on both sides and the lack of any prejudice
whatsoever to the Bruners, it was an abuse of discretion to deny Lux’s
motion. Lux should have been permitted to withdraw the admissions. I
would therefore reverse and remand the claims on which the district court
concluded that the Bruners were entitled to summary judgment based
solely on the admissions. As the majority does not reach the contract-
interpretation claim on the merits, I do not either.
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