Opinion
Argued and Submitted February 15, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Yellow pages publisher brought action for declaratory relief against sales agent, alleging that she failed to make payments and was continuously late in submitting orders, and seeking declaration that it was entitled to refuse further orders submitted by agent, and agent counterclaimed, alleging various state law claims and violations of the Clayton and Sherman Acts. The United States District Court for the Central District of California, Alicemarie H. Stotler, J., granted summary judgment for publisher on all claims. Agent appealed. The Court of Appeals held that trial court could grant summary judgment based on deemed admissions, even though agent submitted admissible evidence contradicting the deemed admissions.
Affirmed. Appeal from the United States District Court for the Central District of California, Alicemarie H. Stotler, District Judge, Presiding.
Before TASHIMA and FISHER, Circuit Judges, and ZILLY, District Judge.
The Honorable Thomas S. Zilly, United States District Judge for the Western District of Washington.
This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Cir. R. 36-3.
I.
GTE Directories Corp. ("GTE") brought this action for declaratory relief against Sherry McCartney ("McCartney"). GTE alleged that McCartney, who was authorized to sell national yellow page advertising on behalf of GTE, failed to comply with GTE's terms and conditions relating to the submission of advertising orders-namely, she failed to make payments and was continuously late in submitting orders. Thus, GTE sought a declaration that it was entitled to refuse further orders submitted by McCartney. McCartney counterclaimed, alleging various state law claims and violations of the Clayton and Sherman Acts.
The procedural history of this case below is lengthy and mostly unnecessary to the resolution of this appeal. Of significant relevance here is McCartney's failure to respond to GTE's request for admissions. As a result of her failure, the admissions were deemed admitted. See Fed.R.Civ.P. 36(b). She attempted to withdraw these admissions twice, both times unsuccessfully. She never filed a third motion.
Her motions were denied without prejudice for failure to comply with the Local Rules. On appeal, McCartney does not challenge the Magistrate's denial of these motions.
GTE sought summary judgment on all claims and counterclaims primarily relying on the deemed admissions. In her opposition, McCartney argued that the district court should not grant GTE's motion based on the deemed admissions because McCartney presented evidence which contradicted those admissions. The district court disagreed and held that because no motion to withdraw was pending, McCartney
Page 737.
was bound by the admissions. Thus, the district court entered judgment for GTE on all claims. McCartney appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
It is worth noting that McCartney concedes that the admissions, if not withdrawn, conclusively establish that GTE is entitled to relief on its claim and that all of her counterclaims fail.
II.
It is clear that a district court may grant summary judgment based on deemed admissions. See O'Campo v. Hardisty, 262 F.2d 621, 624 (9th Cir.1958). The question then becomes whether it is still appropriate to grant such a motion if the nonmoving party submits admissible evidence that contradicts the deemed admissions, yet fails to file a Rule 36(b) motion. We hold that it is. Rule 36(b) provides the exclusive remedy for withdrawal or amendment of admissions, and it provides that a court may do so "on motion." See Fed.R.Civ.P. 36(b); United States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir.1987) ("[T]he proper procedural vehicle through which to attempt to withdraw admissions ... is a motion under Rule 36(b) to withdraw admissions."). Moreover, McCartney's introduction of allegedly contradictory evidence cannot serve as an "implied" motion to withdraw. Cf. 999 v. C.I.T. Corp., 776 F.2d 866, 869-70 (9th Cir.1985) ( "Evidence inconsistent with a Rule 36 admission is properly excluded."). Therefore, because there was no proper motion to withdraw before the court, the court did not err when it relied on the deemed admissions to grant GTE's motion for summary judgment on all claims. See O'Campo, 262 F.2d at 624.
AFFIRMED.