DeLong v. Merrill (CA2 9/27/13)

This discusses the withdrawal of an admission made under Rule 36.

After the defendant failed to answer a Request for Admissions the plaintiff moved for summary judgment. The defendant then answered the Request, raising question of fact, and arguing that the delay did not prejudice the plaintiff. The trial court disagreed and granted summary judgment. The defendant appealed.

The plaintiff did not file a brief or an appearance in the Court of Appeals. The court specifically finds that this was a confession of reversible error. So why not just say that and reverse in a memorandum? Once upon a time courts avoided making law in cases like this. In any event, the Court of Appeals reverses, finding an abuse of discretion.

The end of the opinion says some useful things, based on actual Arizona authority: summary judgment should not be used as a sanction (which is what the opinion says was done here, though that’s not entirely clear), nor should default judgment.

But the bulk of the opinion discusses the Rule 36 issue, which it indicates is one of first impression.

Under Rule 36 admissions can be withdrawn or amended when “presentation of the merits will be subserved” and the propounding party can show prejudice. Citing some federal cases (it says there is no Arizona authority), the court says that it is an abuse of discretion not to consider both factors. Why a trial court must consider both when either can be dispositive the opinion does not say.

Regarding the presentation of the merits, the summary judgment foreclosed some of the defendant’s counterclaims. Therefore, the court says, granting the plaintiff relief would have promoted the presentation of the merits. But by what logic do we distinguish between a ruling based on an admission and the legal consequences of that ruling? At what point, and on what basis, do we say that an admission shouldn’t be allowed to support summary judgment because the judgment would have too much legal effect? Is it seriously now the law that you can be stuck with your admissions unless you filed a counterclaim?

On the prejudice issue the plaintiff had argued delay. The court says that under Rule 36 prejudice is the difficulty you could face in presenting your case if your opponent is allowed to retract an admission. It isn’t delay – or, as as the court carefully phrases it, “failure to meet a deadline” (keep that in mind for future use: responding to discovery eight months late and only in response to a dispositive motion is now “failure to meet a deadline”). But what about the Arizona cases saying that prejudice is indeed about things like delay? Since when can you get relief on a motion based on a discovery lapse unless you complain of delay? And if you’re going to put those cases aside and create a Rule-36-only species of prejudice don’t you at least explain that that’s what you’re dong?

Why is this happening? Because this was a tough situation. The defendant’s lawyer thought he responded to the Request but the response got lost in his file. As a result the defendant might lose her house to a claim that the Court of Appeals – as it tells us by reciting some facts extraneous to any issue in the opinion – thinks dicey. And the delay argument was iffy; a different trial court, on a different day, might have exercised its discretion differently.

All the more reason to avoid addressing the details of Rule 36, which the court could perfectly well have done, rather than to tell a trial judge that he abused his discretion when what he probably did was to pay attention to the law of Arizona, rather than to the federal cases now preferred by the Court of Appeals, and to the plaintiff’s arguments, which the Court of Appeals didn’t have to bother reading or considering.

(link to opinion)