719 F.3d 295 (3rd Cir. 2013), 12-2208, Gwynn v. City of Philadelphia

Docket Nº:12-2208.
Citation:719 F.3d 295, 85 Fed.R.Serv.3d 1487
Opinion Judge:HARDIMAN, Circuit Judge.
Party Name:Michael GWYNN; Brendon Ryan, Appellants v. CITY OF PHILADELPHIA; Charles Ramsey; Patrick Kelly; Melvin Singleton; Salvatore Fede; Frank Palumbo.
Attorney:Brian M. Puricelli [Argued], Law Offices of Brian Puricelli, Newtown, PA, Attorneys for Plaintiff-Appellants. Kelly S. Diffily, Jane L. Istvan [Argued], Shant H. Zakarian, Philadelphia, PA, Attorneys for Defendant-Appellees.
Judge Panel:Before: AMBRO, HARDIMAN and COWEN, Circuit Judges.
Case Date:June 19, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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719 F.3d 295 (3rd Cir. 2013)

85 Fed.R.Serv.3d 1487

Michael GWYNN; Brendon Ryan, Appellants


CITY OF PHILADELPHIA; Charles Ramsey; Patrick Kelly; Melvin Singleton; Salvatore Fede; Frank Palumbo.

No. 12-2208.

United States Court of Appeals, Third Circuit.

June 19, 2013

Argued April 16, 2013.

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[Copyrighted Material Omitted]

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Brian M. Puricelli [Argued], Law Offices of Brian Puricelli, Newtown, PA, Attorneys for Plaintiff-Appellants.

Kelly S. Diffily, Jane L. Istvan [Argued], Shant H. Zakarian, Philadelphia, PA, Attorneys for Defendant-Appellees.

Before: AMBRO, HARDIMAN and COWEN, Circuit Judges.


HARDIMAN, Circuit Judge.

City of Philadelphia Police Officers Michael Gwynn and Brendon Ryan appeal a summary judgment entered in favor of several of their fellow officers and the City. Appellants asserted constitutional claims under 42 U.S.C. § 1983, statutory claims under the Fair Labor Standards Act, and various state law claims. For the reasons that follow, we will affirm the judgment of the District Court.


As this appeal comes to us following summary judgment, we review the facts in the light most favorable to Appellants. See Montone v. City of Jersey City, 709 F.3d 181, 189 (3d Cir.2013).


On December 15, 2009, while on duty, Appellants stopped and frisked men they believed were engaged in an illegal drug transaction. One of the men they frisked, Keyshawn Artis, accused Appellants of stealing money from him. Appellants denied the accusation, and told Artis to " move along."

When Appellants returned to headquarters, a superior officer, Sergeant Salvatore Fede, ordered them into his office. After informing Appellants that a complaint about their behavior had been made to the Internal Affairs Bureau, Sergeant Fede took Appellants to Captain Melvin Singleton's office. Appellants did not feel free to leave because they had been " ordered to be in the captain's office." App. 285. After waiting fifteen to twenty minutes, Appellants and Sergeant Fede were joined by Captain Singleton, then-Sergeant Patrick Kelly, and Lieutenant Frank Palumbo.

Appellants were instructed to stay in Captain Singleton's office until officers from the Internal Affairs Bureau arrived. While Appellants waited, Captain Singleton offered them water and told them that they could watch television, but instructed them not to use their cell phones. Appellants then were questioned about their interaction with Artis, including whether they had taken money from him. In that regard, Appellants were asked to remove their jackets and Gwynn was asked to remove his outer vest. Appellants also were told to pull out their pockets, pull up their pant legs and pull down their socks, and open their wallets. Finally, Appellants were told that cooperation would be in their " best interest" insofar as it could demonstrate to Internal Affairs that they did not have Artis's money when they returned from their patrol. During the hour or so they spent in Captain Singleton's office while awaiting the arrival of Internal Affairs officers, Appellants did as they were told because the orders came from their " superiors and supervisors," and they

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feared " discipline and possible loss of employment" if they disobeyed. App. 241.

Upon their arrival at Captain Singleton's office, two Internal Affairs officers questioned Appellants for about fifteen to twenty minutes and then left briefly to talk to Artis, the complainant. Appellants were told to stay put until the Internal Affairs officers returned after speaking with Artis. As Appellants waited, Gwynn asked for permission to call his wife to arrange for her to pick up their son, and then-Sergeant Kelly granted permission. The Internal Affairs officers returned, stated that they believed Artis, and told Appellants that they were not needed for anything further that day. Appellants left Captain Singleton's office around 8:15 p.m. and when they opened their lockers that evening, it appeared as though they had been searched.


In February 2011, Appellants sued Captain Singleton, Lieutenant Kelly, Sergeant Fede, and Lieutenant Palumbo along with the City and its Police Commissioner, Charles Ramsey. Since Appellants' claims arose under federal and state law, the District Court exercised jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

Appellants served requests for admission in June 2011 that went unanswered until the beginning of August 2011, after the 30-day deadline prescribed by the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 36(a)(3). Because Appellants' requests for admission were deemed admitted by operation of Rule 36, Appellees filed a motion in the District Court on September 9, 2011, to withdraw those admissions. The District Court granted that motion, gave Appellees ten additional days to respond, and extended the discovery period for 60 days.

The parties filed cross motions for summary judgment and the District Court granted the motion of Appellees. Gwynn and Ryan filed this timely appeal, which we have jurisdiction to hear pursuant to 28 U.S.C. § 1291.


Gwynn and Ryan first argue that the District Court abused its discretion when it allowed Appellees to withdraw their admissions. Had those admissions remained undisturbed, Appellants argue, their summary judgment motion would have been granted. Because the District Court did not err when it allowed Appellees to withdraw their admissions, we reject Appellants' first argument.

Rule 36(a)(3) of the Federal Rules of Civil Procedure provides that a request for admission is deemed admitted if a party does not respond within 30 days. Nevertheless, courts may permit withdrawal of the admission if: (1) doing so " would promote the presentation of the merits of the action" ; and (2) " the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits." Fed.R.Civ.P. 36(b). Courts may consider other factors as well, such as whether the moving party can show good cause for the delay, see Conlon v. United States, 474 F.3d 616, 625 (9th Cir.2007), but they are not required to do so, see Fed.R.Civ.P. 36(b).

Here, the District Court's discretionary decision to permit Appellees to withdraw the admissions was consistent with both requirements of Rule 36(b). Upholding the admissions would have significantly interfered with Appellees' ability to present the merits of their case, and Appellants have failed to identify any prejudice they suffered as a result of the withdrawal. In their brief, Appellants state

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that counsel " detrimentally relied" upon the admissions as indicated at pages 6-8 of their opposition to the motion in the District Court. There, Appellants argued that counsel had not moved to compel discovery of certain documents in reliance on the admissions— a concern that was adequately addressed by the extension of the discovery deadline. Appellants further argued that counsel had " developed a litigation strategy that placed reliance on the conclusive facts deemed from the Admissions." Dkt. No. 9 at 8. " The prejudice contemplated by Rule 36(b)," however " is not simply that the party who obtained the admission now has to convince the jury of its truth. Something more is required." Bergemann v. United States, 820...

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