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1 Because oral argument will not be of material

assistance, the court orders this matter submitted on the briefs. 

See E.D. Cal. Local Rule 78-230(h).

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

THERESA UREKEW,

NO. CIV. S-04-2529 FCD/KJM

Plaintiff,

v. MEMORANDUM AND ORDER

TETRA HOLDINGS (US) INC.,

KENT NORRIS, REMY OZARAGA,

Defendants.

----oo0oo----

This matter is before the court on plaintiff Theresa

Urekew’s motion to modify the pretrial scheduling order to permit

the filing of a motion to withdraw admissions.1 Defendant Tetra

Holding (US) Inc. opposes the motion. 

On February 24, 2006 defendant filed a motion for summary

judgment that relied largely on plaintiff’s failure to respond to

defendant’s Request for Admissions. Said failure, defendant

argued, deemed the requests admitted and required entry of

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2 Plaintiff’s counsel, Todd Murray, proffers that during

the applicable time, he suffered a severe intestinal blockage

which resulted in surgery shortly before the responses were due. 

“As a result of the extreme press of business on his return [to

work] and his inadvertent and mistaken belief that their [sic]

would be no negative ramifications from the delay, he did not

file the responses and they were automatically deemed admitted

under Federal Rules of Civil Procedure (FRCP), Rule 36(a).” 

(Mot. to Modify, filed May 3, 2006, at 2:18-21.)

2

summary judgment in its favor. In opposition to the motion,

plaintiff conceded the failure to respond but moved to withdraw

her admissions citing her counsel’s “mistake, inadvertence and

excusable neglect” in failing to timely respond to defendant’s

Request for Admissions.2 (See Opp’n to MSJ and Mot. to Withdraw,

filed April 6 and 7, 2006.) Plaintiff argued that otherwise, the

deemed-admissions “essentially put [plaintiff] in a situation of

disavowing the basic factual and legal underpinnings of her

claims against [defendant].” (Mot. to Modify, filed May 3, 2006,

at 4:11-12.)

Under the circumstances, the court continued the hearing on

defendant’s motion for summary judgment, deferring resolution of

that motion until the motion to withdraw admissions, a discovery

motion, was heard by the magistrate judge (it was then set for

hearing on May 3, 2006). (Minute Order, filed April 11, 2006.) 

However, on April 27, 2006, the magistrate judge vacated the

motion to withdraw admissions finding it untimely under the

pretrial scheduling order, filed May 20, 2005, which required all

discovery, including motions relating to discovery issues, to be

completed by February 1, 2006.

Plaintiff now moves this court for modification of the

pretrial scheduling order to allow the magistrate judge to hear

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3

her motion to withdraw admissions. Under Federal Rule of Civil

Procedure 16, good cause exists for such relief. Johnson v.

Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)

(quoting Fed. R. Civ. P. 16, advisory committee’s notes (1983

amendment)). Since the filing of defendant’s motion for summary

judgment, plaintiff has diligently sought to withdraw her

admissions. A finding on that motion is critical to resolution

of defendant’s motion for summary judgment. 

Accordingly, the court HEREBY amends the pretrial scheduling

order to permit plaintiff to file her motion to withdraw

admissions before the magistrate judge. In order to allow time

for hearing of said motion, the court continues the hearing on

defendant’s motion for summary judgment, currently set for June

2, 2006, to July 21, 2006 at 10:00 a.m. in Courtroom 2. 

Plaintiff may file a supplemental opposition to defendant’s

motion for summary judgment, considering the magistrate judge’s

ruling on her motion to withdraw admissions, on or before July 7,

2006. Defendant may file its reply on or before July 14, 2006.

As a result of these orders, the court continues the final

pretrial conference, currently set for August 4, 2006, to

September 29, 2006 at 1:30 p.m.; the joint final pretrial

statement shall be filed by September 15, 2006; the parties shall

refer to the court’s pretrial scheduling order as to the form and

content of the statement. Trial of this matter, currently set 

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for October 17, 2006, is continued to December 5, 2006 at 

9:00 a.m.

IT IS SO ORDERED.

 DATED: May 15, 2006

 /s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL, Jr.

UNITED STATES DISTRICT JUDGE

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