                                                                           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                           NOT FOR PUBLICATION                              MAR 21 2013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
