FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDGARDO SEMINIANO, No. 11-55237
Plaintiff - Appellee, D.C. No. 2:10-cv-01673-JST-JEM
v.
MEMORANDUM *
XYRIS ENTERPRISE, INC.; ATKINSON
CARE HOME; MUQUET DADABHOY;
TERESITA CASTANEDA,
Defendants - Appellants.
EDGARDO SEMINIANO, No. 11-55590
Plaintiff - Appellee, D.C. No. 2:10-cv-01673-JST-JEM
v.
XYRIS ENTERPRISE, INC.; ATKINSON
CARE HOME; MUQUET DADABHOY;
TERESITA CASTANEDA,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Josephine Staton Tucker, District Judge, Presiding
Argued and Submitted February 15, 2013
Pasadena, California
Before: KOZINSKI, Chief Judge, KLEINFELD and SILVERMAN, Circuit
Judges.
Xyris Enterprise, Inc. et al., appeal the district court’s orders granting
Edgardo Seminiano’s motion for summary judgment and awarding him attorney’s
fees. We have jurisdiction under 18 U.S.C. § 1291 and now reverse and remand.
The district court granted summary judgment based on Seminiano’s
unanswered request for admissions. The defendants’ lawyer declared under
penalty of perjury that she did not receive the request. The court held that “a
simple denial of receipt is insufficient to rebut the presumption of receipt created
by a properly addressed proof of service.” Seminiano v. Xyris Enter., Inc., CV 10-
1673-JST (JEMx), 2011 WL 165377, at *3 (C.D. Cal. Jan. 18, 2011). We disagree
with that categorical proposition. A proof of service is a sworn declaration giving
rise to a presumption of receipt, but, depending on the circumstances, that
presumption can be rebutted by a credible sworn declaration of non-receipt.
Our holding in In re Bucknum, 951 F.2d 204 (9th Cir. 1991), is not to the
contrary. In Bucknum, we held that a declaration of non-receipt could not
overcome the presumption of receipt for documents sent by a court. Id. at 206-07.
Here, the document was allegedly sent by an adverse party, and the mailing was
evidenced by nothing more than opposing counsel’s own declaration. Maybe the
district court has good reason to doubt the truthfulness of defendants’ lawyer’s
declaration. We hold only that Bucknum did not compel the district court to
automatically find counsel’s declaration of non-receipt insufficient as a matter of
law.
REVERSED and REMANDED.
FILED
Seminiano v. Xyris, 11-55237 MAR 21 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent, and would affirm.
We review summary judgment de novo, and can affirm on any ground.1 I
agree with the majority that proof of service creates only a rebuttable presumption
of receipt, and that the presumption can be rebutted by a credible sworn declaration
of non-receipt. Nevertheless, on the record in this case, the court properly applied
Federal Rule of Civil Procedure 36, deeming the requests for admission admitted
and declining to allow them to be withdrawn.
The requests for admission were mailed August 9, 2010. No response was
ever made. Of course it is conceivable that the Post Office erred, or that an error
was made by the staff in the law office representing the defendants, so that defense
counsel never saw the requests shortly after mailing. That would not matter to
1
Commonwealth Utils. Corp. v. Goltens Trading & Eng’g Ltd., 313 F.3d
541, 546 (9th Cir. 2002).
1
whether Rule 36(a)(3) should be applied, because defendants were given notice of
the requests on at least two subsequent occasions and still failed to respond.
Plaintiff’s counsel filed a report with the court October 12, 2010 and served
it on defense counsel, saying that “Plaintiff propounded written discovery to
defendants, including requests for admission.” Defense counsel never denied
receipt. After being served with this report, the defense knew very well that
plaintiff was claiming that requests for admission had been served, yet neither
asked for another copy nor offered any response.
Plaintiff’s counsel asked defense counsel on November 2, 2010 why “she
had never responded to any of the written discovery.” She “did not deny having
received the discovery” and did not ask for copies or for more time to respond.
Thus it does not matter whether defense counsel received the requests for
admission mailed August 9. They were advised in October and November of the
outstanding discovery requests and still failed to respond.
The Fourth Circuit declined to allow withdrawal of admissions in a similar
case where a certificate of service showed that the requests for admission were
2
properly mailed, but the defendant swore in an affidavit that she had not received
them.2 In that case, the defendant heard a reference to the requests for admission
during trial, but made no objection and did not claim that she had not received
them.3 The court ruled that “[i]t would be an intolerable obstruction to the
administration of justice if a party should be permitted to remain silent . . . and
subsequently, after judgment had gone against him, to question for the first time
the regularity of the proceedings.”4 The administration of justice is no less
obstructed here, where defendants ignored repeated advice of the outstanding
discovery until after plaintiff relied on the non-response to prepare a motion for
summary judgment.
Unanswered written discovery was not the first, or only, instance of the
defendants’ avoidance of discovery. The owner and operator of the assisted living
care facility being sued had obtained a delay of his deposition for a family
emergency requiring him to go to Pakistan, and then did not go to Pakistan because
the sick relative had died. Two days before his rescheduled deposition, he met
2
Timmons v. United States, 194 F.2d 357, 361 (4th Cir. 1952).
3
Id. at 360.
4
Id. at 361.
3
with the plaintiff in the absence of plaintiff’s attorney and appears to have gotten
plaintiff to sign something purporting to settle the case for much less than it was
worth. Plaintiff’s lawyer disputes that the plaintiff’s signature on the letter is
authentic and offered credible evidence showing that defense counsel was involved
in mailing the letter. Like the failure to respond to written discovery, avoidance of
the deposition suggests that the defense chose intentionally not to comply with its
discovery obligations.
The district court did not abuse its discretion in refusing to allow the
requests to be withdrawn, even though its articulation of the reason was imperfect.
The defendants never moved to withdraw the admissions as required by Rule
36(b). There was no motion to deny, so denial could not be an abuse of discretion.
The Fifth Circuit has held that withdrawal under Rule 36(b) requires a motion, and
that a district court’s withdrawal of admissions without a proper motion was an
abuse of discretion.5 Though defendants, in their opposition to the motion for
summary judgment, argued against treating the requests as admitted, they still did
not lodge a proposed response. The least the court was entitled to as a predicate for
5
American Auto. Ass’n v. AAA Legal Clinic of Jefferson Crooke, P.C., 930
F.2d 1117, 1120 (5th Cir. 1991) (“Mere trial testimony did not constitute a motion
by the Legal Clinic to withdraw or amend its admissions.”).
4
discretionary relief was a response showing what was admitted and what was not
admitted.
Even had a proper motion been filed, with a response provided, plaintiff
would have been prejudiced had the district court allowed withdrawal of the
admissions. Rule 36(b) gives a judge discretion to permit withdrawal of
admissions “if the court is not persuaded that it would prejudice the requesting
party in maintaining or defending the action on the merits.” Here, the requesting
party, Seminiano, would be prejudiced by withdrawal of the admissions.
Defendants repeatedly evaded attempts to depose the owner of the facility, and
completely ignored the written discovery requests. By the time defendants
responded to the motion for summary judgment, discovery had closed, and plaintiff
would have had no way to prepare his case for trial. Under Conlon v. United
States,6 the district court did not abuse its discretion by not allowing withdrawal of
the admissions.
6
Conlon v. United States, 474 F.3d 616, 622-25 (9th Cir. 2007) (upholding a
district court’s refusal to allow withdrawal of admissions when withdrawal would
have prejudiced the requesting party and finding that the district court did not
abuse its discretion by considering whether the non-requesting party could “show
good cause for the delay in filing responses”).
5
In this circumstance, even though the presumption of receipt from proof of
service is rebuttable, it is hard to imagine a reasonable decision other than to treat
the requests for admission as admitted. The defense was informed of the requests
twice subsequent to the initial service, never responded, never moved for relief,
never said what responses it would have made, and otherwise appears to have
evaded its discovery obligations. This is a lawsuit to collect overtime wages by an
apparently poor worker at a nursing home. Inexpensive written discovery is about
the only economical way such a lawsuit can be pursued. By emasculating written
discovery, we empower economically better off bullies seeking to starve out poorer
plaintiffs by forcing them to bear litigation expense one side can bear better than
the other. The record supports the judgment even though In re Bucknum 7 is not
good authority for it. The district court did not abuse its discretion in treating the
unanswered requests for admission as admitted. We ought to affirm the reasonable
award and attorney’s fees in full.
7
In re Bucknum, 951 F.2d 204 (9th Cir. 1991).
6