Case 8:11-cv-00485-AG-AJW Document 496-1 Filed 04/13/12 Page 1 of 12 Page ID #:12094

Marc Steven Colen The Colen Law Firm 2 5737 Kanan Road, Ste. 347 Agoura Hills, CA 91301 3 Tele: 818.716.2891 4 Fax: 818.597.4631
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Attorney for Defendants Neil Sankey, 6 Todd Sankey, The Sankey Firm, Inc., and Sankey Investigations, Inc.
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Case No.: 8:11-cv-00485 AG (AJWx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TODD SANKEY AND THE SANKEY FIRMS MOTION TO WITHDRAW ADMISSIONS page 1

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

) ) Lisa Liberi, et al., ) ) ) Plaintiffs, ) ) vs. ) ) Orly Taitz, et al., ) ) Defendants ) ) __________________________ )

Case No.: 8:11-cv-00485 AG (AJWx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS TODD SANKEY AND THE SANKEY FIRM, INC.S MOTION TO WITHDRAW ADMISSIONS PURSUANT TO FRCP 36(B) Date Action Filed: May 4, 2009 Discovery Cut-Off: March 5, 2012 Final Pre-Trial Conf.: May 21, 2012 Trial Date: June 5. 2012

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1 2 3 4 I. BACKGROUND 5 6 7 8 9 10 II. ARGUMENT 11 12 13 14 15 16 17 18 19 III. 20 21 IV. 22 23 24 25 26 27 28

TABLE OF CONTENTS

4 4 4 5 6 6 6 6 7 8 10 12 12

A. The Relevant Parties B. The Operative First Amended Complaint C. Current Status and Procedural Posture

A. B.

The Purpose Of Requests For Admissions The Two Prong Test

1. C. Fed. R. Civ. P. 36(B) 2. The First Prong: Presentation On The Merits 3. The Admissions Are Contrary To The Truth 4. The Second Prong: Prejudice To Plaintiffs CONCLUSION PRAYER

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1 2 3 4 Fed. R. Civ. P. 16(e) 5 Fed. R. Civ. P. 36(b) 6 7 8 9 10 11 12

TABLE OF AUTHORITIES STATUTES 11 6, 7 CASES American Auto Assn. v. AAA Legal Clinics of Jefferson Crooke, 930 Fed.2d 1117, 1120 (5th Cir. 1991). Conlon v. United States, 474 Fed.3d 616, 622 (9th Cir. 2007). Curtis v. State Farm Lloyds, Hadley v. United States, In re Beaty,

11 6, 7, 11 7 7, 11 12 6 11

13 2004 WL 1048241 (S.D.N.Y.). 14 15 45 F.3d 1345, 1348 (9th Cir.1995). 16 17 306 Fed.3d 914 (Fed. 9th Cir. 2002). 18 19 297 F.3d 1255, 1268 (11th Cir. 2002) 20 21 409 F3d 1243, 1246 (10th Cir. 2005) 22 23 24 25 26 27 28

Perez v. Miami-Dade County, Raiser v. Utah County,

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1 2 3 4

I. BACKGROUND A. The Relevant Parties

5 The Plaintiffs hereto may be divided into three units, (1) Berg, in his capacity as 6 an attorney, (2) Berg as a plaintiff, (3) Lisa Liberi and (4) Lisa Ostella. These 7 are collectively referred to as the Plaintiffs. 8 9 The Defendants involved in some manner with this motion are (1) Neil Sankey 10 individually and byway of his dba Sankey Investigations, (2) Todd Sankey, (3) 11 The Sankey Firm, Inc. of which Todd Sankey is the president, (4) the Taitz 12 defendants and (5) the Internet Services Providers. 13 14 15 16 This is an extraordinary case with an extraordinary number of parties and 17 extraordinary demands. The operative First Amended Complaint is one 18 hundred and seventy (170) pages long, states twenty (20) baseless causes of 19 action against twenty five (25) defendants in four hundred twenty three (423) 20 paragraphs. The Plaintiffs damage demands from the Sankey Defendants alone 21 are approximately six billion, five hundred and sixty million dollars 22 ($6,560,000,000.00) as follows: 23 24 25

B. The Operative First Amended Complaint

To Lisa Liberi: To Lisa Ostella: To Philip Berg:

~ $3,240,000,000.00 ~ $3,240,000,000.00 ~ $64,000,000.00

26 The total damages that have been claimed exceed one hundred forty four billion 27 ($144,000,000,000.00). Attorneys fees payable to Philip Berg are additionally 28 demanded.
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C. Current Status and Procedural Posture

3 This case is currently stayed as to the Plaintiffs and Taitz Defendants as a result 4 of the Anti-SLAPP motion filed by the Taitz Defendants now before United 5 States 9th Circuit Court of Appeals. The case is also stayed as to the Plaintiffs 6 adverse to Neil Sankey and his dba Sankey Investigations as a result of Sankeys 7 filing of a petition before the United States Bankruptcy Court. The Internet 8 Service Provider Defendants have been dismissed by way of successful motions 9 for summary judgment and remainder are in the process of what is expected to 10 be the same result. For the purposes of this motion, the case is limited to the 11 Plaintiffs adverse to Todd Sankey and The Sankey Firm. 12 13 Berg served request for admissions on Todd Sankey and The Sankey Firm, Inc. 14 As a result of illness suffered by their counsel, Marc S. Colen, and with a 15 concomitant failure of his calendaring system, responses were not served within 16 30 days. Colen first became aware of the problem when he saw that the Court 17 granted leave for the Plaintiffs to file a motion for summary judgment based on 18 admissions made on a technical basis rather than on the truth. After seeing that 19 order, Colen immediately contacted Berg admitting the error, informing Berg 20 that he was willing to waive objections. Colen also informed Berg that he would 21 seek leave to file this motion to withdraw the admissions and that any work on a 22 motion for summary judgment would be premature not only on that bases, but 23 also the bases that and because no discovery had been possible as to the Taitz 24 defendants as a result of the stay and that the Plaintiffs had not properly 25 responded to Todd Sankeys discovery requests. Colen provided draft/proposed 26 responses very shortly. The final version, identical to the proposed responses, 27 was served shortly thereafter. 28 ///
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1 Only four of the requests for admissions are properly admitted, two each of the 2 same request are duplicates and supports the defense and in all of these 3 instances the admissions support The Sankey Firms and Todd Sankeys defense 4 or are irrelevant, as discussed below. By this motion Todd Sankey and The 5 Sankey Firm requests an order granting this motion so that they can present 6 their case. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1. 22 23 24 25 26 27 28

II. ARGUMENT A. The Purpose Of Requests For Admissions

The rule is not to be used in an effort to "harass the other side" or in the hope that a party's adversary will simply concede essential elements. Perez v. Miami-Dade County, 297 F.3d 1255, 1268 (11th Cir. 2002). Rather, the rule seeks to serve two important goals: truth-seeking in litigation and efficiency in dispensing justice. Conlon v. United States 474 Fed.3d 616, 622 (9th Cir. 2007). B. Fed. R. Civ. P. 36(B) [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and 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. Fed. R. Civ. P. 36(b).
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The Two Prong Test

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1 2

2.

The First Prong: Presentation On The Merits

3 This case is complex, containing many parties, allegations and causes of action. 4 All but what are effectively two requests for admissions are correct, as presented 5 in the Declaration of Todd Sankey filed herewith.

Upholding the admissions

6 would effectively eliminate any presentation by Todd Sankey and The Sankey 7 Firm on the merits. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 3. 24 25 The Declaration Todd Sankey filed herewith addresses every request for 26 admission propounded by the Plaintiffs, the responses from both Todd Sankey 27 and The Sankey Firm. Only four (4) admissions are admitted and in no instance 28
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"The first half of the test in Rule 36(b) is satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case." Conlon v. United States 474 Fed.3d 616, 622 (9th Cir. 2007) quoting Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir.1995). It seems to this Court that because the merits of this case would be subverted if Astra was not permitted to amend its default admissions, prohibiting the amendment would operate merely as a sanction and impede the true fact-finding process. Generally, courts should allow amendment where the merit would be subverted. . . . Curtis v. State Farm Lloyds, 2004 WL 1048241 (S.D.N.Y.). The Admissions Are Contrary To The Truth

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1 further the Plaintiffs case. The following is a delineation of the basic facts 2 concerning this case: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a. There is no relationship between The Sankey Firm and the work performed by Neil Sankey, Todds father, for Orly Taitz. Neil Sankey worked for Orly Taitz on a project of their mutual interest, the President Obama birth certificate issue.

b. Unbeknownst to either Mr. Todd Sankey or the Sankey Firm, Inc., Mr. Neil Sankey may have used a The Sankey Firm, Inc. email address but if he did so, he did so without the express permission of either Mr. Todd Sankey or The Sankey Firm.

c. Todd Sankey never had knowledge of and never authorized his father, Neil Sankey, to use The Sankey Firm Incs email system or its password to Lexis, the only Internet Services Provider to which Mr. Todd Sankey or the Sankey Firm, Inc. had access.

d. Even if Neil Sankey had accessed the Lexis database, it is irrelevant. The Lexis system cannot provide the information which Liberi asserts that Neil Sankey acquired from Lexis. [This is basis for the Lexis Defendants pending Motion for Summary Judgment.] In any event, the purportedly private information about which Liberi complains is in the public domain. e. Neither Todd Sankey nor The Sankey Firm has ever (1) had any interest in the Obama birth certificate issue, (2) never did any work,
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investigation or otherwise, concerning that issue for anyone and (3) never authorized anyone else to do so using the name, email system or Lexis password concerning the Plaintiffs or anyone else involved in this litigation or anyone involved or interested the birther movement.

f. Neither Todd Sankey nor The Sankey Firm has (a) ever been retained by Orly Taitz or any other of the Taitz defendants to perform any work for her/them, (b) never volunteered to do any work for her/them and (c) never did any work for her/them.

g. There is but a single Request for Admission addressed to Mr. Todd Sankey that can be truthfully admitted and that is an admission that in all ways supports the position of Mr. Todd Sankey and the Sankey Firm, Inc., to wit, admit that Neil Sankey is not a licensed private investigator for The Sankey Firm. He is not affiliated with or for The Sankey Firm in any way. This is and always has been Todd Sankeys contention.

h. The Sankey Firm, Inc. can truthfully admit only three requests of which two are effectively identical within this set. Two of these are duplicative within this set and the other is duplicative of one contained in the set propounded to Todd Sankey. The duplicative requests ask The Sankey Firm to admit that private investigators are regulated by the California Bureau of Security and Investigative Services. They are and that was admitted.
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1 2 3 4 5 6 7 8 9 10 4. 11 12 If the Plaintiffs are deserving of prevailing in this case, they must do so on the 13 basis of the merits of this case. Prejudice means more than an adverse effect on 14 the requesting partys case: any withdrawal or amendment will almost certainly 15 prejudice the requesting partys case. Prejudice is not established simply 16 because the admitted fact would have to be proved. Even the existence of a 17 summary judgment motion does not affect the necessity to seek the truth. 18 19 20 21 22 23 24 25 26 27 28
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i. No acquisition of information concerning the Plaintiffs was ever performed by Todd Sankey or The Sankey Firm.

j. No dissemination of purportedly confidential information was performed by Todd Sankey or The Sankey Firm. Indeed, they never had or saw any such information.

The Second Prong: Prejudice To Plaintiffs

The prejudice contemplated by Rule 36(b) is `not simply that the party who obtained the admission will now have to convince the factfinder 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. We agree with the other courts that have addressed the issue and conclude that reliance on a deemed admission in preparing a

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summary judgment motion does not constitute prejudice. Conlon v. United States 474 Fed.3d 616, 624 (9th Cir. 2007).

There is no prejudice to the Plaintiffs resulting from the timing of this Motion. The closer the case comes to trial, the more heavily the requesting party has relied upon the admission, the less likely a court will be to reopen such issues. Indeed, once a pretrial conference order has been made, amendments are allowed only to prevent manifest injustice. Fed. R. Civ. P. 16(e), Hadley v. United States, 45 F3d 1345, 1348-1349 (9th Cir. 1995); Brook Village North Assocs. v. General Elec. Co., (686 F2d 66, 71 (1st Cir. 1982)]. Even after the pretrial conference has taken place, the standard that a court will apply may be stricter, but even then withdrawal of admissions may be allowed. American Auto Assn. v. AAA Legal Clinics of Jefferson Crooke, P.C. 930 Fed.2d 1117, 1120 (5th Cir. 1991). [P]reparing a summary judgment motion in reliance upon erroneous admission does not constitute prejudice. Raiser v. Utah County 409 F3d 1243, 1246 (10th Cir. 2005).

III.

CONCLUSION

An error was made and remedial steps were taken. Objections were immediately waived without discussion or argument. There were no purposeful nor willful improper acts. Responses without objections were provided. Nothing was done for tactical reasons. There was no abuse. There was no bad
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1 faith. In re Beaty, 306 Fed.3d 914 (Fed. 9th Cir. 2002). Relief is appropriate; 2 justice so demands. 3 4 5 6 In view of the foregoing, defendants Todd Sankey and The Sankey Firm, Inc. 7 request that this Honorable Court grant the instant Motion to Withdraw 8 Admissions. 9 10 Dated 12 April 2012 11 12

IV.

PRAYER

13 _____________________________ 14 The Colen Law Firm 15 Attorney for Defendants Neil Sankey, 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No.: 8:11-cv-00485 AG (AJWx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TODD SANKEY AND THE SANKEY FIRMS MOTION TO WITHDRAW ADMISSIONS page 12

Marc Steven Colen

Marc Steven Colen

Todd Sankey, The Sankey Firm, Inc.,