Conlon v. U.S.

• Decision Date: 16 January 2007
• Docket Number: No. 05-15238.,05-15238.
• Citation: 474 F.3d 616
• Parties: Michael J. CONLON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

474 F.3d 616

Michael J. CONLON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 05-15238.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 16, 2006.

Filed January 16, 2007.

COPYRIGHT MATERIAL OMITTED

James André Boles, Reno, NV, for the plaintiff-appellant.

Greg Addington, Assistant United States Attorney, District of Nevada, Reno, NV, for the defendant-appellee.

Appeal from the United States District Court for the District of Nevada; David W. Hagen, District Judge, Presiding. D.C. No. CV-01-00700-DWH (VPC).

Before SUSAN P. GRABER, M. MARGARET McKEOWN, and RICHARD C. TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge.

Appellant Michael J. Conlon appeals the district court's entry of summary judgment against him under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Conlon failed to respond to the government's Request for Admissions within the thirty-day time frame set forth in Federal Rule of Civil Procedure 36(a). Consequently, the United States by letter deemed its Request for Admissions admitted, and the government relied on those admissions when seeking summary judgment. We conclude that the district court did not abuse its discretion when it denied Conlon's motion to withdraw under Rule 36(b), and we affirm the district court's entry of summary judgment. We are satisfied that the district court conducted an appropriate analysis under Rule 36, properly considering both the factors elucidated in the rule, and that it did not clearly err in concluding that the government's case would have been significantly prejudiced by the withdrawal of Conlon's sweeping admissions on the eve of trial.

I

In 1986, Conlon was sentenced to a twelve-year term of federal imprisonment, with an eight-year special parole term to follow. His parole was revoked four times between 1990 and 1996. He was again released on November 7, 1997, with his special parole term set to commence on January 28, 1998, after the expiration of his twelve-year term.

On February 12, 1998, the United States Parole Commission ("Parole Commission") issued a warrant for Conlon's arrest. The warrant application stated that Conlon had failed to notify the Parole Commission of a change of address in violation of his special parole terms. He was arrested on February 19, 1998, and after Conlon admitted the allegations, his parole was revoked and the eight-year special parole term was converted to a regular term of twenty-four months of imprisonment.

On November 29, 1999, the United States District Court for the District of Arizona, the Honorable William D. Browning presiding, granted Conlon's petition for a writ of habeas corpus, ordering him released on or before December 15, 1999. That court found that the Parole Commission never had jurisdiction to issue the warrant because the alleged violation occurred prior to the commencement of Conlon's special parole term.

In the spring of 2000, Conlon was arrested in Minnesota for failure to report to the Parole Commission upon his release. He reopened his previous habeas petition. Because the Arizona district court's original order granting habeas relief did not require Conlon to complete his special parole term, the court concluded that Conlon's failure to report was not improper. The Arizona district court then vacated Conlon's special parole term and ordered him released no later than August 3, 2001.

After exhausting his administrative remedies, Conlon filed a pro per civil action in the United States District Court for the District of Nevada.¹ The parties stipulated to dismiss all claims except those arising under the FTCA. In an order filed June 8, 2004, the Nevada district court dismissed on jurisdictional grounds all but the negligence claim arising out of Conlon's February 19, 1998, arrest and subsequent imprisonment.²

The court held a status conference on August 17, 2004. United States Magistrate Judge Valerie Cooke of the District of Nevada issued a scheduling order setting October 15, 2004, as the deadline for completion of discovery, and November 15, 2004, as the deadline for filing dispositive motions.³ The trial was to commence on January 11, 2005.

The United States served its "First Set of Request for Admissions and First Set of Interrogatories" on August 19, 2004. In the first paragraph, the United States explicitly stated:

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, defendant requests that plaintiff MICHAEL J. CONLON respond within thirty (30) days from service hereof, to the following requests for admissions. In accordance with Rule 36, the failure to respond within the time provided will result in the matters set forth being admitted.

Responses were due September 21, 2004. The more pertinent requests for admissions included Request # 7: "The U.S. Parole Commission's issuance of the February 12, 1998 violator warrant was not caused by any negligent or wrongful act or omission of any employee of the United States"; Request # 13: "Your February 20, 1998[sic] arrest was not caused by any negligent or wrongful act or omission of any employee of the United States"; and Request # 26: "No portion of your incarceration from February 20, 1998[sic] to December 15, 1999 was caused by any negligent or wrongful act or omission of any employee of the United States."

Shortly after the thirty-day time frame passed, the United States contacted Conlon to discuss his past-due responses. In a follow-up letter dated September 28, 2004, the assistant United States attorney again warned Conlon of the consequences of his failure to respond:

As we discussed last week, the responses to the discovery propounded on August 19 (request for admissions and interrogatories) are past due. There has been no request for an extension of the time established for such responses and, given the short discovery period set by the Court, there is no room for flexibility in this regard if additional discovery is to be done (as was contemplated following receipt of the responses). Pursuant to [Rule 36 of the Federal Rules of Civil Procedure], the matters set forth in request for admissions numbered 1-27 are deemed admitted for the purpose of this pending action and I will proceed accordingly.

Prior to the October 15, 2004, discovery cut-off deadline, Conlon had not responded to the government's Request for Admissions, the September 28, 2004, follow-up letter, or filed a motion to withdraw his admissions with the Nevada district court under Rule 36(b). On November 3, 2004, Conlon sent deficient responses to the Request for Admissions.⁴ In a letter dated November 5, 2004, the United States again told Conlon that his "failure to respond to the requests for admission in a timely manner resulted in those matters being deemed admitted." It further explained that because "the Court provided for a very short discovery period[,] . . . [t]he discovery propounded to [Conlon] was designed to obtain responses well in advance of the expiration of the discovery period so that additional discovery could be conducted based on the responses which were timely received."

On November 12, 2004, three days before the dispositive motions deadline, the United States filed a motion for summary judgment based on the "deemed admissions." On November 15, 2004, Conlon filed a Motion for Relief under Rule 36(b). He argued that (1) he was out of touch with his attorney during part of the period for answering the Request for Admissions, and his participation was essential; (2) once he was contacted the requests were answered forthwith; (3) relief would further the administration of justice, and denial would cause a hardship upon Conlon; and (4) relief would not unduly prejudice the United States. In conjunction with his Motion for Relief, Conlon also served on the United States a new set of answers, rectifying the deficiencies in the responses to interrogatories that were present in the first set. The United States opposed Conlon's Motion for Relief.

On January 3, 2005, Magistrate Judge Cooke denied Conlon's Motion for Relief. The court relied in part on the fact that counsel for the United States twice advised Conlon that the admissions were deemed admitted, and that Conlon sought relief only after the United States had filed a dispositive motion. Moreover, as Magistrate Judge Cooke observed, although Conlon claimed that he was "out of touch with his attorney during part of the time for answering the requests for admissions," he never "allud[ed] to any serious medical condition or other emergency which illustrate[d] the need for the relief requested, nor d[id] he identify which admissions were denied." Rather than simply ignoring the Request for Admissions, the district court concluded that, "[a]t minimum, [Conlon] should have sought leave of the court for an extension of time to serve the answers." Therefore, because Conlon "failed to show that presentation of the merits of this action will be subserved by permitting withdrawal of `several' of the admissions," and because "the defendant will be severely prejudiced by allowing withdrawal of the admissions since a dispositive motion is in the midst of briefing and trial is set to commence in eight days," Magistrate Judge Cooke denied the Motion for Relief. Subsequently, the district court granted the government's motion for summary judgment, stating that the "Defendant's motion for summary judgment turn[ed] on admissions made by plaintiff during discovery."

II

We review a district court's denial of a motion to withdraw or amend a Rule 36 admission for an abuse of discretion. 999 v. C.I.T. Corp., 776 F.2d 866, 869 (9th Cir.1985). "Trial courts [have been] advised to be cautious in exercising their discretion to permit withdrawal or amendment of an admission." Id.

The district court's decision to grant summary judgment is reviewed de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). Unanswered ...