The plaintiff filed an ex parte application to be relieved of admissions that were deemed admitted for failure to respond.

In analyzing the ex parte application, the district court first concluded that the plaintiff had not justified the filing of an ex parte application rather than a noticed motion. "Plaintiff has not shown Plaintiff's 'case will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures.' Mission Power, 883 F. Supp. at 492. To the contrary, there is no mention anywhere in the Application or supporting declaration that there is any crisis or emergency warranting ex parte relief, nor does it appear to the Court that Plaintiff's case would be 'irreparably prejudiced' if the underlying motion were heard according to regular noticed motion procedures. Moreover, to the extent there is any crisis, Plaintiff has not shown it is 'without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.' Id. "

The district court then turned its attention to the merits of the application. The district court concluded that "while the first factor of Rule 36(b) is satisfied, the Court finds Defendant would be prejudiced if Plaintiff's admissions are withdrawn so close to trial."

As Plaintiff concedes, the admissions practically eliminate[] any presentation of the merits in this matter regarding liability. The operative Requests, when admitted, establish that Top Lighting is liable to Linco for patent infringement because Top Lighting "uses," "offers for sale," "sells," "manufactured," "distributed and/or caused to be distribute (sic)," "makes a product that infringes at least one claim of the '590 patent," and "sold" the accused product "for a profit" as well as "licenses to third parties to make, use offer to sell, or sell a product that infringes at least one claim of the '590 Patent."

Turning to the second prong of Rule 36, the district court explained that the party relying on the deemed admission, has the burden of proving prejudice. Conlon, 474 F.3d at 622. "The prejudice contemplated by Rule 36(b) is 'not simply that the party who obtained the admission will now have to convince the factfinder of its truth. Rather, it relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence' with respect to the questions previously deemed admitted." Id. (quoting Hadley 45 F.3d at 1348). It is well-settled that "reliance on a deemed admission in preparing a summary judgment motion does not constitute prejudice." Id. at 624. Rather, the Court must focus on the prejudice Defendant would suffer at trial. Id. at 623.

The district court then explained that the request to continue trial had been denied, the discovery cut-off of November 8, 2016 had passed, and the trial date of February 21, 2017 was quickly approaching. Therefore, Defendant would be unable to conduct additional discovery sufficiently in advance of the February 21, 2017 trial if Plaintiff's request to withdraw admissions is granted. See also Saroyan Lumber Co., Inc. v. El & El Wood Prds. Corp., 126 Fed. Appx. 371, 372 (9th Cir. Mar. 11, 2005) (Unpub. Disp.) (district court did not abuse its discretion in denying motion to withdraw admissions, where plaintiff "did not seek to withdraw the deemed admissions until the discovery cut-off had passed and defendants were unable to conduct discovery on the facts deemed admitted").

Finally, the district court noted that because Rule 36(b) is permissive, "the court may nonetheless consider whether the moving party has shown good cause for the failure to serve timely responses." Carden v. Chenega Sec. & Prot. Servs., LLC, No. CIV S-09-1799-WBS, 2011 WL 1344557, at *2 (E.D. Cal. Apr. 8, 2011) (citing Conlon, 474 F.3d at 624-25). Among the factors the court properly takes into account in evaluating whether to exercise its discretion to permit withdrawal is whether the party who made the admissions can show good cause for the failure to respond to the admissions and for the failure to seek their withdrawal in a timely manner. See Am. Gen. Life & Acc. Ins. Co. v. Findley, No. CV 12-01753 MMM (PSWx), 2013 WL 1120662, at *5 (C.D. Cal. Mar. 15, 2013). Here, Plaintiff fails to provide any explanation whatsoever for its failure to serve timely responses. In addition, Plaintiff fails to provide a sufficient justification for its failure to promptly move to withdraw the deemed admissions. See Carrillo v. Las Vegas Metro. Police Dep't, No. 2:10-CV-02122-JAD, 2013 WL 4432395, at *2 (D. Nev. Aug. 14, 2013) (finding plaintiffs failed to show good cause to reopen discovery because "the failure of the Plaintiffs' prior counsel to conduct any discovery or retain an expert . . . is not a reasonable excuse or justification to reopen the expert witness disclosure deadline")

Accordingly, the district court denied the application to be relieved from the admissions.

Top Lighting Corp. v. Linco, Inc., Case No. EDCV 15-1589-JVS (KKx) (C.D. Cal. Dec. 29, 2016)