Doe v. San Jose Unified School District Board

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION ELIZABETH SINCLAIR, et al., Case No. 20-cv-02798-LHK (VKD) 9 Plaintiffs, ORDER RE SEPTEMBER 24, 2021 10 v. DISCOVERY DISPUTE 11 SAN JOSE UNIFIED SCHOOL DISTRICT Re: Dkt. No. 116 BOARD OF EDUCATION, et al., Defendants.

14 The parties ask the Court to resolve a dispute concerning defendants’ responses to plaintiffs’ requests for admissions. The Court finds the matter suitable for resolution without oral argument. Civil L.R. 7-1(b).

17 For the reasons explained below, the Court grants defendants’ request to withdraw their deemed admissions to plaintiffs’ RFAs Nos. 4-6, 18-20, 29 and 33.

19 I. BACKGROUND 20 On June 11, 2021, plaintiffs Fellowship of Christian Athletes (“FCA”) and two former student members of the local chapter, Elizabeth Sinclair and Charlotte Klarke, served several requests for admissions on defendants Nancy Albarran, Herb Espirirtu, and Peter Glasser. Dkt.

23 No. 116-1. Defendants say that, due to a calendaring error, they did not timely respond to these requests for admissions. Dkt. No. 116 at 2. Defendants discovered the error on August 12, 2021 and served their responses. Id. Defendants served amended responses September 10, 2021. Dkt.

26 No. 116-2.

27 The dispute before the Court concerns Requests for Admissions (“RFAs”) Nos. 4-6, 18-20, permitted to withdraw those admissions. Defendants concede that the RFAs are deemed admitted but seek permission to withdraw the admissions to conform to the amended responses served on September 10, 2021.

4 II. LEGAL STANDARD 5 Rule 36(a) of the Federal Rules of Civil Procedure provides that a request for admission is deemed admitted unless the responding party timely serves a written answer or objection. Fed. R. Civ. P. 36(a)(3). A matter admitted pursuant to Rule 36(a) is “conclusively established” unless a court, “on motion,” permits a party to withdraw or amend its admission. Fed. R. Civ. P. 36(b).

9 Under Rule 36(b), a court “may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.” Id. Because Rule 36(b) is permissive, not mandatory, even if these requirements are met, a court may consider other factors in deciding whether to exercise its discretion to grant relief. Conlon v. U.S., 474 F.3d 616, 621-22, 624-25 (9th Cir. 2007).

15 III. DISCUSSION 16 As to each disputed RFA or set of RFAs the Court considers whether the requirements of Rule 36(b) are met, and then considers whether any other factors bear on defendants’ request to withdraw the deemed admissions.

19 A. RFAs Nos. 18-20 20 RFAs Nos. 18-20 ask defendants to admit that each of three San Jose Unified School District high schools (Pioneer, Willow Glen, and Leland) “will not grant” the relevant FCA group “ASB approval as long as the group requires its student leaders to affirm the FCA Statement of Faith.” Dkt. No 116-1 at 12-13. Defendants seek permission to object to the requests as vague, ambiguous, overbroad, and calling for speculation, and to state that they lack sufficient information to admit or deny the requests. Dkt. No. 116-2 at 8-9.

26 The Court considers first whether permitting the defendants to withdraw their admissions and amend their answers to these RFAs will promote the presentation of the merits of the action.

1 leadership requirements,” but they argue that no FCA applications have been submitted for ASB approval in academic year 2021-22 and that new application procedures have been adopted which may bear on the question of whether the clubs will be approved. Dkt. No. 116 at 3. Plaintiffs argue that “[i]t is undisputed that FCA still requires its leaders to affirm the FCA Statement of Faith,” and that the evidence obtained in discovery so far is inconsistent with defendants’ suggestion that the high schools might not deny recognition this year. Id. at 7-8. The parties appear to agree that the question of whether approval will be granted or withheld is a central issue in the case. And while there appears to be little disagreement about the underlying facts, to the extent there is a dispute about how each high school will respond to a request for approval that has not yet been made, permitting the parties to present evidence will promote presentation of the merits on this point.

12 The Court next considers whether permitting defendants to withdraw their admissions and amend their RFA answers will prejudice plaintiffs’ ability to prosecute the action on the merits.

14 Plaintiffs argue that they will be prejudiced by defendants’ amendments because they relied on the admissions in briefing their motion for a preliminary injunction and would have no opportunity to take additional discovery before the hearing on that motion. Id. at 7. Defendants argue that this is not the kind of prejudice Rule36(b) contemplates. They observe that plaintiffs have already taken discovery on matters bearing on the contested admissions, and will have an opportunity to take further discovery. Id. at 4. The Court agrees with defendants. “When undertaking a prejudice inquiry under Rule 36(b), district courts should focus on the prejudice that the nonmoving party would suffer at trial.” Conlon, 474 F.3d at 623 (emphasis added). In analyzing prejudice in Conlon, the Ninth Circuit distinguished cases in which a party attempted to withdraw an admission during or on the eve of trial (often very prejudicial), from cases in which a party attempted to withdraw an admission at a time when the nonmoving party still had an opportunity to adjust its trial strategy and presentation to accommodate the change (generally not prejudicial).

26 Id. at 623-24. Reliance on deemed admissions in preparing a dispositive motion does not constitute prejudice under Rule 36(b), particularly where an opportunity for further discovery ample opportunity to develop further evidence before trial.

2 Nevertheless, the Court has considered plaintiffs’ argument that withdrawal of defendants’ admissions will prejudice their efforts to obtain preliminary injunctive relief. The record does not support this position. The Court has examined the references to defendants’ admissions in plaintiffs’ briefs in support of their motion for preliminary. See Dkt. No. 116 at 6. Plaintiffs have indeed cited defendants’ admissions of RFAs Nos. 18-20 in their motion and reply papers, but these citations appear in a string of other citations to other evidence in the record on the same point, reflecting the extensive discovery plaintiffs have already taken and relied upon regarding ASB approvals. The Court concludes that plaintiffs will not be prejudiced by withdrawal of defendants’ admissions to these RFAs.

11 B. RFAs Nos. 4-6 12 RFAs Nos. 4-6 ask defendants to admit that the student FCA groups at each of the San Jose Unified School District high schools (Pioneer, Willow Glen, and Leland) “permitted all students . . . to attend its meetings.” Dkt. No 116-1 at 9. Defendants seek permission to object to the requests as vague, ambiguous, overbroad, burdensome, and oppressive, and to state that they lack sufficient information to admit or deny the requests. Dkt. No. 116-2 at 3-4. In addition, and notwithstanding their objections, defendants specifically deny that the student FCA groups permitted all students to attend the groups’ “leadership meetings.” Id. With respect to RFA No. 4, which concerns the Pioneer student FCA group, defendants admit the request as to meetings other than “leadership meetings.” Id. at 3. With respect to RFAs Nos. 5 and 6, which concern the Willow Glen and Leland student FCA groups, defendants state that they lack sufficient information to admit or deny the requests as to other meetings. Id. at 3-4.

23 The Court considers first whether permitting the defendants to withdraw their admissions and amend their answers to these RFAs will promote the presentation of the merits of the action.

25 Defendants say very little about these RFAs, except that they seek information within plaintiffs’ knowledge and “go directly to core factual and legal issues in the litigation.” See Dkt. No. 116 at 3, 5. Plaintiffs argue that other evidence in the record establishes that “all students are welcome to requests. Id. at 9. The parties appear to agree that the question of whether the FCA clubs excluded certain students from their meetings or permitted all students to attend is an important issue in the case. In contending that the evidence is undisputed, plaintiffs do not address defendants’ distinction between “leadership meetings” and other meetings or events. There appears to be little disagreement about the underlying facts, but rather a disagreement about the interpretation of the RFAs. However, to the extent there is a dispute about which students were permitted to attend which meetings of the FCA groups at each high school, permitting the parties to present evidence will promote presentation of the merits on this point.

9 The Court next considers whether permitting defendants to withdraw their admissions and amend their RFA answers will prejudice plaintiffs’ ability to prosecute the action on the merits.

11 As with RFAs Nos. 18-20, plaintiffs argue that they will be prejudiced by defendants’ amendments because they relied on the admissions in briefing their motion for a preliminary injunction and would have no opportunity to take additional discovery before the hearing on that motion. Id. at 7, 9. For the reasons explained above with respect to RFAs Nos. 18-20, the Court concludes plaintiffs’ reliance on the deemed admissions in support of the motion for preliminary injunction does not constitute prejudice for purposes of Rule 36(b).

17 C. RFA No. 29 18 RFA No. 29 asks defendants to admit that “meetings of Student FCA Groups in the District are led by students.” Dkt. No 116-1 at 15. Defendants seek permission to object to the request as vague, ambiguous, overbroad, compound, burdensome, oppressive, and calling for speculation. Dkt. No. 116-2 at 11. In addition, and notwithstanding their objections, defendants “[a]dmit that some Student FCA Group meetings in the District have been led by students in the past, but deny that all meetings have been led by students, or been led exclusively by students, and deny that there are any Student FCA Groups currently meeting within the District.” Id. 25 The Court considers first whether permitting the defendants to withdraw their admission and amend their answer to this RFA will promote the presentation of the merits of the action.

27 Defendants say very little about this RFA, except that it “pertain[s] to a threshold issue of whether “contradicts much of the evidence revealed through discovery.” Dkt. No. 116 at 3. Plaintiffs argue that “unrebutted testimony and declarations establish[ ] that all student FCA meetings within the District are student initiated and student-led.” Id. at 9. The parties appear to agree that the question of whether students led the meetings is an important issue in the case. In contending that the evidence is undisputed, plaintiffs do not acknowledge or address defendants’ partial admission of this RFA, but again there appears to be little disagreement about the underlying facts.

7 However, to the extent there is a dispute about whether or to what extent the FCA meetings were led by students, permitting the parties to present evidence will promote presentation of the merits on this point.

10 The Court next considers whether permitting defendants to withdraw their admission and amend their RFA answer will prejudice plaintiffs’ ability to prosecute the action on the merits. As with RFAs Nos. 18-20, plaintiffs argue that they will be prejudiced by defendants’ amendments because they relied on the admissions in briefing their motion for a preliminary injunction and would have no opportunity to take additional discovery before the hearing on that motion. Id. at 7, 9. For the reasons explained above with respect to RFAs Nos. 18-20, the Court concludes plaintiffs’ reliance on the deemed admissions in support of the motion for preliminary injunction does not constitute prejudice for purposes of Rule 36(b).

18 D. RFA No. 33 19 RFA No. 33 asks defendants to admit that “[i]n the past 5 years, the Pioneer Student FCA Chapter is the only student group at Pioneer that had its ASB approval revoked.” Dkt. No 116-1 at 15. Defendants seek permission to object to the request as vague, ambiguous, overbroad, burdensome, and oppressive. Dkt. No. 116-2 at 13. However, notwithstanding their objections, defendants admit that, with respect to student-initiated clubs, “the Pioneer Student FCA Chapter is the only student initiated club that had its ASB approval formally revoked in the past 5 years,” but deny that “it is the only group that has had its ASB approval status changed within the past 5 years.” Id. 27 The Court considers first whether permitting the defendants to withdraw their admission parties’ dispute about this RFA is puzzling. Defendants appear to have admitted the portion of the RFA that plaintiffs say is important to their claims. See Dkt. No. 116 at 9. Also, there appears to be little disagreement about the underlying facts. However, to the extent there is a dispute about whether the Pioneer FCA group is the only student group at Pioneer that has had its ASB approval revoked in the past 5 years, permitting the parties to present evidence will promote presentation of the merits on the question of whether defendants selectively enforced their policies.

7 The Court next considers whether permitting defendants to withdraw their admission and amend their RFA answer will prejudice plaintiffs’ ability to prosecute the action on the merits. As with RFAs Nos. 18-20, plaintiffs argue that they will be prejudiced by defendants’ amendments because they relied on the admissions in briefing their motion for a preliminary injunction and would have no opportunity to take additional discovery before the hearing on that motion. Id. at 7, 9. For the reasons explained above with respect to RFAs Nos. 18-20, the Court concludes plaintiffs’ reliance on the deemed admissions in support of the motion for preliminary injunction does not constitute prejudice for purposes of Rule 36(b).

15 E. Other Factors 16 Having determined that both requirements of Rule 36(b) are met as to all disputed RFAs, the Court next considers whether there are any other factors that bear on the question of whether defendants should be permitted to withdraw their admissions. Plaintiffs argue that defendants have not shown good cause for their delay in seeking to withdraw their admissions. Id. at 7. This argument is not persuasive. Defendants have explained that they made a calendaring error, which they promptly sought to correct when they discovered it by notifying plaintiffs of the error and serving responses to the RFAs. The parties then engaged in discussions about the need to seek relief from the Court as to a subset of those RFAs. While plaintiffs’ frustration with defendants’ failure to timely respond to the RFAs is understandable, the Court finds no reason to conclude that defendants acted in bad faith or engaged in any other misconduct that warrants denial of permission to withdraw the deemed admissions.

27 The Court does not consider here whether defendants’ objections to the RFAs are well- purposes of Rule 37(c)(2).

2 || IV. CONCLUSION 3 For the reasons discussed above, the Court grants defendants’ request to withdraw their deemed admissions to plaintiffs’ RFAs Nos. 4-6, 18-20, 29 and 33, and to amend their responses as reflected in Dkt. No. 116-2.

6 IT IS SO ORDERED.

7 Dated: October 6, 2021 9 Unigitia B AAA . Au March: VIRGINIA K. DEMARCH 10 United States Magistrate Judge a 12

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