Liberi V Taitz Plaintiffs Opp To Sankey's Rule 36 (B) Motion Doc 498

Case 8:11-cv-00485-AG-AJW Document 498-1 Filed 04/19/12 Page 1 of 3 Page ID #:12141
TABLE OF CONTENTS Pages TABLE OF CONTENTS.......i TABLE OF AUTHORITIES........ii-iii I. II. III. INTRODUCTION..1-2 STATEMENT OF FACTS2-7 THE SANKEY DEFENDANTS MOTION IS INCOMPLIANT WITH THE COURTS RULES AND SHOULD BE DISMISSED.8-9
ARGUMENT.9-18 IV. THE SANKEY DEFENDANTS MOTION TO WITHDRAW THEIR ADMISSIONS DEEMED ADMITTED ARE WITHOUT MERIT9-18 A. The Sankey Defendants fails to Offer any Valid Reason Why their Motion for Relief from Admissions should be Granted; and Granting such Relief would Prejudice the Plaintiffs...9-18
V.
CONCLUSION,....18
TABLE OF AUTHORITIES Cases Page(s)
999 v. C.I.T. Corp., 776 F.2d 866, (9th Cir.1985)...10 Carden v. Chenega Security & Protection Servs., LLC, 2011 WL 1344557, at *2 (E.D. Cal. Apr.8, 2011)..11 Conlon v. U.S., 474 F. 3d 616, 621 (9th Cir. 2007)9, 16, 17 Hadley v. United States, 45 F.3d 1345 (9th Cir.1995)....16 In re Neil Sankey, U.S. Bankruptcy Court, Ventura County, Case No. 1:12-bk-12269-AA...15 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992).18 Shepherd v. Baca, No. CV 0302923 JVS (AJW), 2009 WL 975845, at *3 (C.D.Cal. Apr.8, 2009).15 FEDERAL RULES OF CIVIL PROCEDURE Page(s) Fed. R. Civ. P. 36...9 Fed. R. Civ. P. 36(a)10 Fed. R. Civ. P. 36(a)(3).8, 9 Fed. R. Civ. P. 36(b)9, 16
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TABLE OF AUTHORITIES - Continued
LOCAL RULES Page(s) Rule 6-1.2, 8 Rule 7-4.9 Rule 7-6.8, 9 Rule 7-8.9 Rule 7-9.2 Rule 11-3.28 Rule 11-3.8(a)8 Rule 11-3.8(e)8
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Case 8:11-cv-00485-AG-AJW Document 498 Filed 04/19/12 Page 1 of 18 Page ID #:12123
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Philip J. Berg, Esquire (PA I.D. 9867) E-mail: philjberg@gmail.com LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Telephone: (610) 825-3134 Fax: (610) 834-7659 Attorney for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION LISA LIBERI, et al, : : : : Plaintiffs, : : : : : : : : Defendants. : : : : CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) PLAINTIFFS MEMORANDUM BRIEF IN OPPOSITION TO THE SANKEY DEFENDANTS MOTION TO WITHDRAW ADMISSIONS DEEMED ADMITTED Date of Hearing: May 7, 2012 Time of Hearing: 10:00 a.m. Location: Courtroom 10D
vs. ORLY TAITZ, et al,
I.
INTRODUCTION:
Plaintiffs Lisa Liberi [Liberi], Lisa Ostella [Ostella], Go Excel Global [GEG], Philip J. Berg, Esquire [Berg] and the Law Offices of Philip J. Berg [LOPJB], collectively [Plaintiffs] by and through their undersigned Counsel hereby submit their Memorandum in Opposition to Defendants Todd Sankey and The Sankey Firm, Inc.s, collectively the [Sankey Defendants] Motion to
Liberi, et al, Plaintiffs Memorandum in Opposition to the Sankey Defendants Rule 36(b) Motion
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Withdraw Admissions Deemed Admitted. In support hereof, Plaintiffs aver as follows: Berg was out of his office undergoing surgery the week of April 9, 2012. The Sankey Defendants filed their Motion to Withdraw their Admissions on the afternoon on Friday, April 13, 2012, which the undersigned did not receive until Tuesday afternoon, April 17, 2012 as a result of his surgery. [Berg Decl., p. 11, 27]. In their Motion, the Sankey Defendants requested a Hearing date of May 7, 2012, which is not timely noticed. See Local Rule [L.R.] 6-1. The Sankey Defendants Motion should have been noticed twenty-eight [28] days before the day of Hearing, giving Plaintiffs a week to respond [Oppositions or Responses are due twenty-one [21] days prior to the Hearing date, L.R. 7-9]. Thus, Plaintiffs were unable to Respond in Opposition to the Sankeys Motion until now. II. STATEMENT OF FACTS:
Plaintiffs spent several months attempting to receive proper Initial Disclosures from the Sankey Defendants. Plaintiffs finally received Documents, the Sankey Defendants called their Initial Disclosures on or about January 20, 2012. See the Declaration of Philip J. Berg, Esquire filed concurrently herewith [Berg Decl.] at page 2, 4. Plaintiffs served Neil Sankey, Todd Sankey, The Sankey Firm, Inc. and Sankey Investigation, Inc. with Discovery by way of Interrogatories; Request for
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Production of Documents; and Requests for Admissions on January 19, 2012 by way of E-Mail and through the United States Postal Service, Signature required. Responses to Plaintiffs Discovery Requests were due on or before February 21, 2012. [Berg Decl., pp. 6-7, 14, Exbs. 6 through 11, pp. 127-302]. Marc Colen, Esquire, counsel for the Sankey Defendants acknowledged receipt of Plaintiffs Discovery requests on January 20, 2012 and signed for Plaintiffs Discovery requests on January 21, 2012. [Berg Decl., p. 7, 15, Exbs. 12 and 13, pp. 303-311], On February 10, 2012, Plaintiffs were served with the Sankey Defendants Discovery requests by way of Interrogatories and over four hundred and twenty three [423] Requests for Production of Documents. The Sankey Defendants were asking for Documents from each of the Plaintiffs, separately, for every paragraph of Plaintiffs First Amended Complaint, including Plaintiffs and Defendants, Jurisdictional Statements, Venue, and claims against the other Defendants. Plaintiffs responses were due on or before March 12, 2012, after the Discovery Cut-Off Date of March 5, 2012. Plaintiffs answered the Sankey Defendants
Discovery requests on March 9, 2012, which was timely. [Berg Decl., pp. 7-8, 16]. // // // //
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On February 25, 2012, the undersigned sent an Email to Mr. Colen informing him of Plaintiffs intent on filing a Motion for Summary Judgment. [Berg Decl., pp. 8, 18, Exb. 14, pp. 313-314]. On February 27, 2012, instead of discussing the issues, Mr. Colen responded with a very immature Email. [Berg Decl., p. 8, 18, Exb. 15, pp. 316-319]. Mr. Berg responded to Mr. Colens Email stating he took his response as he did not agree with Plaintiffs intention of filing a Motion for Summary Judgment and sought Leave of Court to file a Motion for Summary Judgment against the Sankey Defendants. [Berg Decl., p. 8, 18, Exbs. 16 and 17, pp. 321-329]. On March 1, 2012, Mr. Colen sent an Email to the undersigned stating for unanticipated reasons, the Response to Plaintiffs Discovery Requests were late. Mr. Colen stated Plaintiffs would receive the Sankey Defendants responses in two [2] weeks, which would have been the 15th of March, 2012. [Berg Decl., pp. 8-9, 18, Exb. 18, p. 331]. The Court Granted Plaintiffs Leave to file their Motion for Summary Judgment against the Sankey Defendants on March 6, 2012. Plaintiffs filed their Motion for Summary Judgment on March 22, 2012, Docket Numbers [DN] 480 through 483. On March 7, 2012, The Sankey Defendants sought Leave of Court to file a Motion to Withdraw their Admissions Deemed Admitted. Attach to the Sankey
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Defendants Request for Leave were unsigned Answers to Plaintiffs Request for Admissions stating that the earliest the Sankeys could meet with counsel was Saturday [March 10, 2012], at which time the originals would be sent to Counsel. [Berg Decl. p. 9, 20, Exb. 19, pp. 333-358]. The Court Granted the Requested Leave on March 13, 2012. See DN 476. On March 26, 2012, the Sankey Defendants through Counsel, Mr. Colen, faxed only Responses to Plaintiffs Requests for Admissions on behalf of Defendants Todd Sankey and The Sankey Firm, Inc. [Berg Decl. p. 9, 21, Exb. 20, pp. 358-382]. To date, Plaintiffs have not received responses to any of their Discovery requests from Neil Sankey or Sankey Investigations, who filed Bankruptcy on March 9, 2012, after the Discovery cut-off date of March 5, 2012. Plaintiffs have not received responses from Todd Sankey or The Sankey Firm, Inc. to Plaintiffs Interrogatories or Request for Production of Documents. [Berg Decl., p. 9, 22]. On March 30, 2012, the Sankey Defendants sought Leave of Court to file a Motion to Compel Plaintiffs Discovery responses, even though Plaintiffs timely and sufficiently Answered the Sankey Defendants Discovery Requests; Request for Stay of Plaintiffs Motion for Summary Judgment against the Sankeys; and a ten [10] day Extension of Time to Answer Plaintiffs Motion for Summary Judgment.
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The Court on April 2, 2012 Granted the Sankey Leave to file a Motion to Compel; Denied the Sankey Defendants Request for a Stay of Plaintiffs Motion for Summary Judgment, but Granted the Sankey Defendants Leave to file an Ex Parte Motion for a Stay, to fully brief the issue, which the Sankey Defendants never complied with; the Court acknowledged the Sankeys statement that a Motion to Withdraw their Admissions would be filed the following week, which would have been the week of April 9, 2012; and Denied as Moot the Sankey Defendants request for a ten [10] day Extension to file their Opposition to Plaintiffs Motion for Summary Judgment. See DN 489. April 16, 2012, the Sankey Defendants filed their Motion to Withdraw their Admissions. The Sankey Defendants claim that proper responses to Plaintiffs Discovery Requests were served upon Plaintiffs without objections. See the Sankey Defendants Notice of Motion and Motion for Withdraw of Admissions, pg. 1, 2 and 6. The Sankey Defendants in their Brief at pg. 5, 2nd paragraph, lines 13-20 that Berg served request for admissions; as a result of illness of counsel and with concomitant failure of his calendaring system, responses were not served within thirty [30] daysColen first became aware of the problem when he saw the Court Granted Leave to Plaintiffs to file a Motion for Summary Judgment based on Admissions made on a technical basis rather than on the truth. As explained,
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Mr. Colens statements are untrue; and Marc Colen, Esquire failed to file a Declaration under the penalty of perjury as to these claims, therefore failed to submit evidence to support his contentions. As stated above, Plaintiffs sent a letter requesting Leave of Court to file their Motion for Summary Judgment on February 27, 2012; Marc Colen, Esquire sent an Email to Plaintiffs Counsel acknowledging the Discovery responses were late on March 1, 2012; and this Court Granted Plaintiffs Leave to file their Summary Judgment Motion on March 6, 2012. See DN 472. Even after Mr. Colens acknowledgement about the late Discovery responses, Plaintiffs still to date have not received Todd Sankey or The Sankey Firm, Inc. Responses to Plaintiffs Interrogatories and Request for Production of Documents [Berg Decl., p. 9, 22]; Plaintiffs did not receive the faxed copies of Defendants late Responses to Plaintiffs Requests for Admissions until March 26, 2012 [Berg Decl., p. 9, 21, Exb. 20, pp. 358-382]; Plaintiffs have not received responses to any of the Discovery requests served upon Neil Sankey [Berg Decl., p. 9, 22]; and the Sankey Defendants did not file their Motion for Relief until April 13, 2012, a month after Leave of Court was Granted, See DN 476, after Discovery cut-off of March 5, 2012; and after Plaintiffs filed their Motion for Summary Judgment, DN 482. // //
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The Sankey Defendants Motion must be Denied and Plaintiffs awarded Attorney Fees and Costs. III. THE SANKEY DEFENDANTS MOTION is INCOMPLIANT WITH the COURTS RULES and SHOULD be DISMISSED:
The Sankey Defendants Motion for Withdraw of their Deemed Admissions fails to comply with the Courts Rules, as follows: i. ii. The Motion is not timely noticed, L.R. 6-1; The Motion is lacking the Hearing date on the first page of each Document, and the name of the Judicial Officer of who the Motion was noticed, L.R. 7-4 and L.R. 11-3.8(e); iii. The Declaration of Todd Sankey, beginning on page two [2], is not on numbered pleading paper, L.R. 11-3.2; iv. The Brief in support of their Motion is not on proper pleading paper, L.R. 11-3.2; v. Counsel for the Sankey Defendants failed to put his bar number on the first page of each document. See DN 496-1 and 496-2, L.R. 11-3.8(a); vi. Counsel for the Sankey Defendants failed to attached his Declaration (Evidence) to support his statements in their Motion, L.R. 7-6; and vii. The Sankey Defendants supposed Responses to Plaintiffs Requests for Admissions attached to the Declaration of Todd Sankey, which
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differ from those received by Plaintiffs on March 26, 2012, are not signed and are incompliant with Fed. R. Civ. P. 36(a)(3). Pursuant to the Courts L.R., 7-4, The Court may decline to consider a motion unless it meets the requirements of L.R. 7-4 through 7-8. Here the Sankey Defendants failed to adhere to the Courts Local Rule 7-4, 7-6 and sever other Local Rules. For this reason alone, the Court should Deny the Motion. ARGUMENT: IV. THE SANKEY DEFENDANTS MOTION to WITHDRAW THEIR ADMISSIONS DEEMED ADMITTED are WITHOUT MERIT: A. The Sankey Defendants Fails to Offer any Valid Reason Why their Motion for Relief from Admissions should be Granted; and Granting such Relief would Prejudice the Plaintiffs:
Federal Rules of Civil Procedure [Fed. R. Civ. P.] 36 requires that a party respond to Requests for Admissions within thirty [30] days after service of the Requests, Fed. R. Civ. P. 36(a)(3). If a party fails to respond to the Requests for Admissions within the thirty [30] days, the matters in the Requests for Admissions are Deemed Admitted and conclusively established. Fed. R. Civ. P. 36(a)(3), 36(b); Conlon v. U.S., 474 F. 3d 616, 621 (9th Cir. 2007). Pursuant to Fed. R. Civ. P. 36(b), the Court may permit withdrawal or amendment [of an admission] if it would promote the presentation of the merits of the action and if the Court is not
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persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. Fed. R. Civ. P. 36(b). Whether such relief is appropriate is governed by a two-pronged test: a court may permit withdrawal or amendment if it would [1] promote the presentation of the merits of the action and [2] if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. Id. See also 999 v. C.I.T. Corp., 776 F.2d 866, (9th Cir.1985). Rule 36(b) presents a permissive standard, and whether a party is entitled to relief in the form of withdrawal or amendment of responses to requests for admissions lies within the discretion of the district court. Conlon, 474 F.3d at 621. However, [t]he rule permits the district court to exercise its discretion to grant relief from an admission made under Rule 36(a) only when (1) the presentation of the merits of the action will be subserved, and (2) the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. Id. (citations and quotation marks omitted). The party relying on the deemed admission has the burden of proving prejudice. Id. at 622. These two factors are central to the analysis. Id. at 625. A district court may also consider other factors, including whether the moving party can show good cause for the delay and whether the moving party appears to have a strong case on the merits. Id.
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As to the First prong, the Sankey Defendants have admitted liability in this Case with the deemed admissions. This Court may conclude based on this that the Sankey Defendants have met their burden, that the action would be subserved if the admissions were left to stand. Carden v. Chenega Security & Protection Servs., LLC, 2011 WL 1344557, at *2 (E.D. Cal. Apr.8, 2011). The second prong is whether or not Plaintiffs would suffer prejudice in maintaining and litigating this action on the merits. Plaintiffs would be prejudiced if the Sankey Defendants Motion is Granted. Plaintiffs have not received responses to their Interrogatories; or Production of Documents from Todd Sankey, The Sankey Firm, Inc., Neil Sankey or Sankey Investigations, Inc. The Requests for Admissions are also deemed admitted by Defendants Neil Sankey and Sankey Investigations. Plaintiffs Requests for Admissions asked Todd Sankey to admit: [1] that he was aware and allowed Neil Sankey to utilize his and The Sankey Firm, Inc.s login credentials with the Reed Defendants, including Accurint: [2] that you have accounts with the Reed Defendants; [3] admit you allowed Neil Sankey to utilize yours and The Sankey Firm, Inc.s log-in credentials to obtain Plaintiffs financial records, credit records, private data, etc.; [4] admit Neil Sankey is not a licensed private investigator for The Sankey Firm, Inc.; [5] admit you are the owner and operator of The Sankey Firm, Inc., [6] admit you were aware and assisted Neil
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Sankey in filing false allegations about the Plaintiffs with State and Federal law enforcement agencies, including Probation; [10] admit you were aware that Neil Sankey sent an Email to Reporter Bob Unruh, containing Liberis Social Security number, date of birth, name, and husbands private data, from The Sankey Firm, Inc.; [13] admit you have caused Plaintiffs irreversible harm; [14] admit you did not have a permissible purpose or legal entitlement to any information pertaining to the Plaintiffs; [17] admit you allowed Neil Sankey to use your log in credentials and resources to assist Orly Taitz in harming and causing damages to the Plaintiffs; etc. [Berg Decl., pp. 6-7, 14, Exbs. 8, pp. 203-204, 206-207 and 11, pp. 284285]. All of which is relative to Neil Sankey utilizing Todd Sankey and The Sankeys Firm, Inc.s credentials to obtain the information about Plaintiffs and imperative to Plaintiffs case against Todd Sankey and The Sankey Firm, Inc. Responses to the Plaintiffs Discovery Requests were due on or before February 21, 2012, prior to the Discovery cut-off of March 5, 2012. A key witness in this litigation is Defendant Neil Sankey, who utilized Todd Sankey and The Sankey Firm, Inc. to obtain Plaintiffs consumer reports and harm the Plaintiffs. Had Plaintiffs received the Sankey Defendants, including Neil Sankey and Sankey Investigations, Inc. Discovery response, Plaintiffs could have properly deposed Neil Sankey.
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The Sankey Defendants claim their defenses are that Todd Sankey was unaware that Neil Sankey was using his Lexis Log-ins; and was unaware that Neil Sankey was using his Email; and that he (Todd Sankey) never authorized his father, Neil Sankey, to utilize these services. Todd Sankey and The Sankey Firm, Inc. also Claim that they cannot be held responsible for what their Employees do or dont do. All of this fails. The only way Neil Sankey could have obtained his Email address with The Sankey Firm, nsankey@thesankeyfirm.com, which was used to harm the Plaintiffs, is if Todd Sankey assigned it to him and provided him access. Neil Sankey used nsankey@thsankeyfirm.com to log-into the Lexis database (Accurint) as well as with IRBsearch, LLC. All of which are accounts of Todd Sankey and The Sankey Firm, Inc. Just like the Email server, Todd Sankey and The Sankey Firm, Inc. had to provide the log-in details to Neil Sankey. Further Lexis and IRBsearch, LLC required Todd Sankey to add Neil Sankey as a user in order to assign nsankey@thesankeyfirm.com as a log-in. [Berg Decl., pp. 9-10, 23-24]. Plaintiffs have not been provided any law enforcement reports filed by Todd Sankey or The Sankey Firm, Inc. for the illegal access of their accounts; nor have Plaintiffs been contacted by any law enforcement official regarding Neil Sankey. But again, all of the Sankey Defendants have refused to turn over Discovery; refused to Answer the Interrogatories and Request for Production of Documents.
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Neil Sankey from The Sankey Firm, Inc. conducted a search on Plaintiff Lisa Liberi on March 16, 2009 through Accurint that provided both Liberis old and new Social Security number; date of birth; husbands name and Social Security number; and the names, dates of birth and Social Security numbers of friends and relatives. [Berg Decl., pp. 2-3, 4-5, Exb. 1, pp. 14-18]. Neil Sankey also obtained a full comprehensive consumer report on Lisa Liberi this same date that gave her Social Security numbers; date of birth; relatives, friends, neighbors, names, Social Security numbers and dates of birth; Liberis employment history; unlisted and unpublished telephone numbers; cell phone number, that was also unlisted and unpublished; cell phone carrier; credit data, including judgments, liens, bankruptcies; home address; income; home value; and other private data. [Berg Decl., pp. 3-4, 6-7, Exb. 2, pp. 20-93]. On April 6, 2009, Neil Sankey, from The Sankey Firm, Inc., obtained a full comprehensive consumer report on Liberis husband with all the same data. Berg Decl., p. 4, 8, Exb. 3, pp. 95-121]; On April 10, 2009, Neil Sankey sent an Email to Reporter Bob Unruh from The Sankey Firm, Inc. with Liberi and her husbands private data. Berg Decl., p. 5, 10, Exb. 4, p. 123]; and on April 13, 2009, Neil Sankey, from The Sankey Firm, Inc., forwarded the Email to Bob Unruh to Orly Taitz with Liberi and her husbands private data. [Berg Decl., p. 5, 11, Exb. 5, pp. 125-126]. Taitz then published all over the Internet, through mass Emailing, hand delivery, through RSS fees and
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Social Networks; discussed on radio and TV shows, repeatedly including Internationally, all of Liberi and her husbands private data. [Berg Decl., p. 5, 11]. Neil Sankey then ran additional consumer reports on Liberi and her husband on April 15, 2009; April 16, 2009; April 19, 2009; and May 7, 2009 and ran consumer reports on Lisa Ostella and her husband on April 13, 2009 and April 19, 2009. See DN 491-2 at pp. 17-18, No. 53; and DN 491-1, p. 8, C(a).
Todd Sankey and The Sankey Firm, Inc. would have been billed for each of the consumer reports pulled on the Plaintiffs, so the Sankey Defendants claims they were unaware and did not authorize these actions fail.
Further, [A] party cannot overcome a binding admission by offering evidence that contradicts the admission[.] Shepherd v. Baca, No. CV 0302923 JVS (AJW), 2009 WL 975845, at *3 (C.D.Cal. Apr.8, 2009). Although the Sankey Defendants talked about it, and continued stating they were filing a Motion to Withdraw their Deemed Admissions, The Sankey Defendants did not bring their Motion to Withdraw their Admission until April 13, 2012, after the Discovery cut-off date of March 5, 2012; and after Plaintiffs filed their Motion for Summary Judgment on March 22, 2012. Plaintiffs are unable to obtain Discovery from and depose Neil Sankey, again who is a key witness against The Sankey Firm, Inc. and Todd Sankey, as he filed a Chapter 7 bankruptcy on March 9, 2012. See In re Neil Sankey, U.S.
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Bankruptcy Court, Ventura County, Case No. 1:12-bk-12269-AA, in which he named this Case and the Plaintiffs herein as debtors. Everything pertaining to Neil Sankey is Stayed under the Bankruptcy laws, and Plaintiffs are foreclosed from obtaining the needed Discovery and deposing Neil Sankey, which is a severe prejudice to the Plaintiffs. Neil Sankey and Sankey Investigations, Inc. refused to comply with Plaintiffs Discovery requests and Plaintiffs are prevented from contacting Neil Sankey and obtaining Discovery as to these supposedly new defenses offered by The Sankey Firm, Inc. and Todd Sankey, as a result of Neil Sankeys Chapter 7 Bankruptcy. The Sankey Defendants are aware of this severe prejudice to the Plaintiffs. Plaintiffs have not been able to obtain Neil Sankeys testimony
regarding the Emails he sent out from The Sankey Firm, Inc. with Plaintiffs private identifying information, which he obtained from Accurint (Reed Defendants) using his Sankey Firm, Inc. log-in details. Plaintiffs are being hampered by the Sankey Defendants, and will not be able to prove their case against The Sankey Firm, Inc. and Todd Sankey, if the Sankeys Requested Relief is Granted and the Deemed Admissions are withdrawn. In regards to prejudice, district courts should focus on the prejudice that the nonmoving party would suffer at trial. Conlon, 474 F.3d at 624 [emphasis added]. In Hadley v. United States, 45 F.3d 1345 (9th Cir.1995), the Ninth Circuit
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Court of Appeals explained that [t]he prejudice contemplated by Rule 36(b) is not simply that the party who obtained the admission will now have to convince the fact-finder 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. at 1348 [emphasis added] (citation and quotation marks omitted). Even if this Court were to find that the two [factors] outlined in Conlon were satisfied, this Court may still deny relief to the Sankey Defendants. See e.g. Conlon, 474 F.3d at 625. [T]he district court may consider other factors,
including whether the moving party can show good cause for the delay and whether the moving party appears to have a strong case on the merits id. In Conlon, the Court looked beyond the surface considerations and upheld the denial of a similar motion for relief. The Conlon Court noted that the United States relied on admissions for a total of two and a half months, through the discovery and dispositive motion cut-off dates. Id. at 624. Similarly, here,
Plaintiffs relied on the admissions for over two [2] months and Plaintiffs have yet to receive Todd Sankey, Neil Sankey, Sankey Investigations, Inc. or The Sankey Firms Responses to Plaintiffs Interrogatories or Request for Production of Documents. In fact, Plaintiffs have not received responses to their Request for
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Admissions served on Neil Sankey or Sankey Investigations. Just like in Conlon, the discovery cut-off date and dispositive Motion dates have passed. Trial is currently set for June 5, 2012. The Sankey Firm, Inc. and Todd Sankey have failed to offer any viable excuse for their continued delays or Good Cause as to why their Motion should be Granted. Good cause requires a showing of due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). V. CONCLUSION:
For the reasons outlined herein, Todd Sankey and The Sankey Firm, Inc.s Motion to Withdraw their Admissions Deemed Admitted must be Denied. Plaintiffs request this Court to Order all the Sankey Defendants to Answer Plaintiffs Interrogatories; and Request for Production of Documents to save in Motion practice and save judicial resources. Plaintiffs are also requesting Attorney Fees in the amount of Five Hundred Thousand [$5,000.00] Dollars and costs in responding to the Sankey Defendants meritless Motion. Respectfully submitted, Dated: April 19, 2012 /s/ Philip J. Berg Philip J. Berg, Esquire Attorney for Plaintiffs
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1
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION : : : Plaintiffs, : : : : : : : Defendants. : : : :
LISA LIBERI, et al, vs. ORLY TAITZ, et al,
CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) [PROPOSED] ORDER Date of Hearing: May 7, 2012 Time of Hearing: 10:00 a.m. Location: Courtroom 10D
ORDER On May 7, 2012, Defendants Todd Sankey and The Sankey Firm, Inc. collectively the [Sankey Defendants] Motion for Withdraw of Admissions Deemed Admitted came on for Hearing. The Court having reviewed and
considered the moving papers, Plaintiffs Opposition thereto, the records on file with this Court, having heard Oral Argument and for GOOD CAUSE SHOWN, IT IS HEREBY ORDERED and DECREED: The Sankey Defendants Motion to Withdraw Admissions Deemed Admitted is DENIED.
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IT IS SO ORDERED: Dated: May ___, 2012 ______________________________ Hon. Andrew J. Guilford Judge of the United States District Court, Central District of California, Southern Division
Respectfully submitted by: /s/ Philip J. Berg Philip J. Berg, Esquire _
Attorney for Plaintiffs, Lisa Liberi, Lisa Ostella, Go Excel Global, Philip J. Berg, Esquire and Law Offices of Philip J. Berg
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Philip J. Berg, Esquire (PA I.D. 9867) E-mail: philjberg@gmail.com LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Telephone: (610) 825-3134 Fax: (610) 834-7659 Attorney in pro se and for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION LISA LIBERI, et al, vs. ORLY TAITZ, et al, : : : Plaintiffs, : : : : : : Defendants. : :
CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) PLAINTIFFS CERTIFICATE OF SERVICE
I, Philip J. Berg, Esquire, hereby certify a true and correct copy of Plaintiffs
Memorandum of Points and Authorities in Opposition to Todd Sankey and The Sankey Firm, Inc.s Motion to Withdraw their Admissions Deemed Admitted; and Proposed Order were served through the ECF filing system this 19th day of April 2012 upon the following:
Marc Steven Colen, Esq. Law Offices of Marc Steven Colen 5737 Kanan Road, Ste. 347 Agoura Hills, CA 91301 Email: mcolen@colenlaw.com Attorney for Defendants: Todd Sankey; and The Sankey Firm, Inc.
Liberi, et al Plaintiffs Cert of Svc re Plaintiffs Opp to Sankeys Rule 36(b) Motion
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James F McCabe Morrison & Foerster 425 Market St San Francisco, CA 94105-2482 Email: jmccabe@mofo.com Attorney for Defendants: Reed Elsevier, Inc.; LexisNexis Group; LexisNexis; LexisNexis Risk and Information Analytics Group, Inc.; LexisNexis Risk Solutions, Inc.; LexisNexis Seisint, Inc. d/b/a Accurint; Choicepoint, Inc.
Orly Taitz 29839 Santa Margarita Parkway, Suite 100 Rancho Santa Margarita, CA 92688 Email: orly.taitz@gmail.com and Email: dr_taitz@yahoo.com Attorney for Defendant Defend our Freedoms Foundation, Inc. Kim Schumann, Esquire Jeffrey P. Cunningham, Esquire SCHUMANN, RALLO & ROSENBERG, LLP 3100 Bristol Street, Suite 400 Costa Mesa, CA 92626 Email: pcookA@srrlawfirm.com Attorney for Defendants Orly Taitz; Orly Taitz, Inc.; and Law Offices of Orly Taitz /s/ Philip J. Berg Philip J. Berg, Esquire
Liberi, et al Plaintiffs Cert of Svc re Plaintiffs Opp to Sankeys Rule 36(b) Motion

Liberi V Taitz Plaintiffs Opp To Sankey's Rule 36 (B) Motion Doc 498

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Liberi V Taitz Plaintiffs Opp To Sankey's Rule 36 (B) Motion Doc 498

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Case 8:11-cv-00485-AG-AJW Document 498-1 Filed 04/19/12 Page 1 of 3 Page ID #:12141

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TABLE OF AUTHORITIES Cases Page(s)

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TABLE OF AUTHORITIES - Continued

Case 8:11-cv-00485-AG-AJW Document 498 Filed 04/19/12 Page 1 of 18 Page ID #:12123

vs. ORLY TAITZ, et al,

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LISA LIBERI, et al, vs. ORLY TAITZ, et al,

Case 8:11-cv-00485-AG-AJW Document 498-2 Filed 04/19/12 Page 2 of 2 Page ID #:12145

Respectfully submitted by: /s/ Philip J. Berg Philip J. Berg, Esquire _

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CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) PLAINTIFFS CERTIFICATE OF SERVICE

Case 8:11-cv-00485-AG-AJW Document 498-3 Filed 04/19/12 Page 2 of 2 Page ID #:12147

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