Edgardo Seminiano v. Xyris Enterprise, Inc.

MEMORANDUM *

Xyris Enterprise, Inc. et al., appeal the district court’s orders granting Edgardo Seminiano’s motion for summary judgment and awarding him attorney’s fees. We have jurisdiction under 18 U.S.C. § 1291 and now reverse and remand.

The district court granted summary judgment based on Seminiano’s unanswered request for admissions. The defendants’ lawyer declared under penalty of perjury that she did not receive the re *736 quest. The court held that “a simple denial of receipt is insufficient to rebut the presumption of receipt created by a properly addressed proof of service.” Seminiano v. Xyris Enter., Inc., CV 10-1678-JST (JEMx), 2011 WL 165877 , at *3 (Jan. 18, 2011). We disagree with that categorical proposition. A proof of service is a sworn declaration giving rise to a presumption of receipt, but, depending on the circumstances, that presumption can be rebutted by a credible sworn declaration of non-receipt.

Our holding in In re Bucknum, 951 F.2d 204 (9th Cir.1991), is not to the contrary. In Bucknum , we held that a declaration of non-receipt could not overcome the presumption of receipt for documents sent by a court. Id. at 206-07 . Here, the document was…

dissenting:

I respectfully dissent, and would affirm.

We review summary judgment de novo, and can affirm on any ground. 1 I agree with the majority that proof of service creates only a rebuttable presumption of receipt, and that the presumption can be rebutted by a credible sworn declaration of non-receipt. Nevertheless, on the record in this case, the court properly applied Federal Rule of Civil Procedure 36, deeming the requests for admission admitted and declining to allow them to be withdrawn.

The requests for admission were mailed August 9, 2010. No response was ever made. Of course it is conceivable that the Post Office erred, or that an error was made by the staff in the law office representing the defendants, so that defense counsel never saw the requests shortly after mailing. That would not matter to whether Rule 36(a)(3) should be applied, because defendants were given notice of the requests on at least two subsequent occasions and still failed to respond.

Plaintiffs counsel filed a report with the court October 12, 2010 and served it on defense counsel, saying that “Plaintiff propounded written discovery to defendants, including requests for admission.” Defense…

FILED

NOT FOR PUBLICATION MAR 21 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

EDGARDO SEMINIANO, No. 11-55237

Plaintiff - Appellee, D.C. No. 2:10-cv-01673-JST-JEM

v.

MEMORANDUM *

XYRIS ENTERPRISE, INC.; ATKINSON

CARE HOME; MUQUET DADABHOY;

TERESITA CASTANEDA,

Defendants - Appellants.

EDGARDO SEMINIANO, No. 11-55590

Plaintiff - Appellee, D.C. No. 2:10-cv-01673-JST-JEM

v.

XYRIS ENTERPRISE, INC.; ATKINSON

CARE HOME; MUQUET DADABHOY;

TERESITA CASTANEDA,

Defendants - Appellants.

Appeal from the United States District Court for the Central District of California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Josephine Staton Tucker, District Judge, Presiding

Argued and Submitted February 15, 2013 Pasadena, California

Before: KOZINSKI, Chief Judge, KLEINFELD and SILVERMAN, Circuit Judges.

Xyris Enterprise, Inc. et al., appeal the district court’s orders granting

Edgardo Seminiano’s motion for summary…