Another interesting civil procedure opinion from the Ninth Circuit today. Judge Tallman holds -- in a telling and important decision -- that the district court did not abuse its discretion in binding plaintiff to a set of case-conclusive admissions given the plaintiff's failure to timely respond to various RFAs.
One can learn a variety of lessons from the opinion. First, and most obviously: Respond to RFAs on time. Don't forget. Especially in federal court. Or, in the alternative, be prepared to lose your lawsuit. This is a seemingly facile message, but one that nonetheless bears repeating. The failure to respond happens more than one might think, sometimes -- as here -- with devastating consequences.
Second, at least in part, Judge Tallman's opinion shows a remarkable ability to close one's eyes as to what's really going on. The United States (which was the defendant in this FTCA case) propounded a couple-dozen RFAs to the (essentially pro se) plaintiff, who had already failed to attend a couple of settlement conferences.
Several of these RFAs were your classic "I hope you don't respond to these, since the only real point of them is to bind you to them if you forget" type. Which, of course, is precisely what transpired. See, e.g., 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.”)
Judge Tallman refuses to let plaintiff out of being bound to these admissions based upon his failure to respond to them in a timely fashion by saying -- as he pretty much has to, given prior precedent -- that the U.S. wasn't merely out to mess with the plaintiff by hoping he'd fail to respond. On page 643, Judge Tallman writes: "This is not a situation in which the United States used a request for admissions to gain an unfair tactical advantage. Cf. Perez, 297 F.3d at 1268 (stating that Perez used the rule “to harass the other side . . . with the wild-eyed hope that the other side w[ould] fail to answer and therefore admit essential elements”). But come on. That's precisely what these requests were for. And Justice Tallman -- who's a former DOJ attorney and AUSA himself -- surely knows this fact, as does anyone who's ever practiced for any substantial period of time. Can we come up with other reasons for these particular requests, which basically said: "Admit that you totally have no case and that we are entitled to summary judgment"? Sure. They'll make the plaintiff, once he denies them, state (alongside related interrogatories) the reasons for his denial and the evidence relevant thereto. But let's get real. The reason these are RFAs instead of straightforward interrogatories is precisely because we hope that the other side won't timely respond. And, with all due respect to Judge Tallman, that's exactly what -- in my view, at least -- transpired here.
None of this means that the plaintiff shouldn't potentially be bound, especially given his lack of diligence in responding. But let's not kid ourselves about what's going on here. We're basically giving the United States a huge windfall. Especially in a case where, as here, the U.S. might well be liable on the merits. Judge Tallman's opinion makes it sound like the United States would seriously be injured in trial preparation absent binding the plaintiff to these admissions. But that's only because we'd be taking away something that the U.S. obtained fortuitously, as a result of the other side's incompetence. Which may or may not be fair, but at least in this case, that's what we're doing.
There's another substantive aspect of the case as well, and civil litigators should definitely read -- or at least be aware -- of Part IV of the opinion. Which substantively changes the law in the Ninth Circuit and makes it much, much easier for district courts to bind parties to admissions for failure to timely respond even absent prejudice to the propounding party. That's a huge change, and makes it much more likely that a court would bind a party in such settings.
So definitely propound those case-dispositive RFAs. Especially now. Sure, gussy them up with other RFAs so it doesn't look like all you're doing is trying to win the case on a procedural trick. But, nonetheless, be sure to do precisely that. As the United States does here.