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Genaro v. Municipality of Anchorage (9/5/2003) sp-5734
Genaro v. Municipality of Anchorage (9/5/2003) sp-5734
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
BRENDA GENARO, )
) Supreme Court No. S-10681
Appellant, )
) Superior Court No.
v. ) 3AN-99-12511 CI
)
MUNICIPALITY OF ANCHORAGE, ) O P I N I O N
OFFICER K. EHM, and OFFICER )
BROCK, ) [No. 5734 - September 5, 2003]
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Thomas A. Dosik, Law Office of
Thomas A. Dosik, Anchorage, for Appellant.
Joyce Weaver Johnson, Assistant Municipal
Attorney, and William A. Greene, Municipal
Attorney, Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
The superior court granted summary judgment to the
Municipality of Anchorage on claims filed by pro se litigant
Brenda Genaro, based on her deemed admissions stemming from her
failure to respond to the Municipality's requests for admissions.
Genaro had opposed summary judgment on the ground that she
believed the Municipality had already received the requested
information from the bankruptcy trustee who had briefly been
substituted for her as the real party in interest in the case.
Because we conclude that it was an abuse of discretion not to
give Genaro the opportunity to withdraw her deemed admissions
under Alaska Civil Rule 36(b), we reverse the grant of summary
judgment.
II. FACTS AND PROCEEDINGS
Brenda Genaro, acting pro se, filed a lawsuit in
December 1999 against the Municipality of Anchorage and two
Anchorage police officers, alleging that the two officers had
beaten her. Genaro did not pursue the lawsuit, and a notice and
order of dismissal was issued in May 2001 declaring that the case
would be dismissed pursuant to Civil Rule 41(e)(1)(A) unless good
cause to the contrary was shown. Genaro responded that medical
and financial difficulties and a "lack of resources to formally
accomplish pre-trial proceedings" had prevented her from pursuing
the suit. Before she could comply with the court's order to
further explain these difficulties, she filed for bankruptcy.
She then filed a response explaining the difficulties.
In August 2001 the bankruptcy trustee was substituted
for Genaro as the real party in interest and the case was
restored to the active civil case list. Shortly thereafter, the
trustee wrote Genaro a letter requesting that she forward "all
documents related to the incident forming the basis for the
lawsuit and the injuries suffered." The trustee and the
Municipality met to discuss pretrial scheduling, including a plan
for discovery. On March 1, 2002, the trustee abandoned the case
and Genaro was reinstated as the plaintiff.
On April 18, 2002, the Municipality sent Genaro
requests for admissions. Genaro failed to respond to the
requests by the due date of May 21, 2002.1 Nine days later, on
May 30, 2002, the Municipality moved for summary judgment,
arguing that the court should dismiss all of Genaro's claims
because her failure to respond to the requests for admissions
meant that the requests were deemed admitted and conclusively
established the Municipality's entitlement to summary judgment.
Genaro opposed this motion, arguing that the bankruptcy trustee
had complied with the Municipality's requests while the case was
in his hands. The court, noting that the requests were sent
after the trustee withdrew, granted the Municipality's motion and
dismissed Genaro's complaint with prejudice.
Genaro, now represented by counsel, appeals, claiming
that the court erred in granting the Municipality summary
judgment and dismissing the case. She argues that the court
abused its discretion by not informing her of her right to move
to withdraw the admissions and by not giving her the opportunity
to do so.
III. DISCUSSION
A. Standard of Review
We review for abuse of discretion a trial court's
decisions concerning whether to inform a pro se litigant of the
specific defects in a pleading and whether to provide an
opportunity to remedy those defects.2 "We will find an abuse of
discretion if our review of the record leaves us with a definite
and firm conviction that the [trial court] made a mistake[.]"3
B. The Superior Court Had an Obligation To Assist
Genaro with the Procedure for Withdrawing Her
Admissions and Should Have Permitted Her To Withdraw
Them.
Genaro argues that the superior court had a duty to
inform her, a pro se litigant, of the option of moving to
withdraw her deemed admissions under Civil Rule 36(b).4 Civil
Rule 36(a) provides that failure to respond within thirty days to
requests for admissions will result in the matters in the
requests being deemed admitted. Rule 36(b) provides that matters
admitted are "conclusively established unless the court on motion
permits withdrawal or amendment of the admission." The superior
court may allow amendment or withdrawal "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 the party in maintaining
the action or defense on the merits."5
We have made clear that "a trial judge has an
obligation to inform a pro se litigant of the proper procedure
for the action he or she is obviously attempting to accomplish."6
In Breck v. Ulmer, we held that the pro se litigant "should have
been advised of the necessity of submitting affidavits to
preclude summary judgment, and of the possibility of amending her
complaint."7 In Bauman v. State, Division of Family & Youth
Services, we declined "to extend Breck to require judges to warn
pro se litigants on aspects of procedure when the pro se litigant
has failed to at least file a defective pleading."8 Similarly,
in Coffland v. Coffland, we held that because "[a] pro se
litigant must make some attempt to comply with the court's
procedures before receiving the benefit of the court's leniency,"
the trial court had no obligation to be lenient with a pro se
litigant who had made "no effort to cooperate with the trial
court or to request assistance in complying with its orders."9
Although Genaro never made an express request for help
from the court on how to undo her deemed admissions or how to
rescue her case, she did file a timely opposition to the summary
judgment motion. Genaro's "objection" to the Municipality's
motion made it apparent that she was attempting to defeat the
motion by contesting her deemed admissions. In her "objection,"
Genaro stated that she believed the Municipality already had the
information it was seeking because the bankruptcy trustee had
complied with the discovery requests while the case was in his
hands. Additionally, she offered to re-submit the information.
Genaro's "objection" may have been a "defective pleading" in that
it did not mention Rule 36(b), but its purpose was clear.
Even clearer than her "objection" are Genaro's numerous
statements at the pretrial conference when the court informed her
that the requests for admissions were deemed admitted because she
had not responded to them. When the court stated that none of
the requests for admissions had been answered by Genaro, she
interrupted with "But they were, your Honor" and explained that
she had submitted the documents to the bankruptcy trustee. She
explained repeatedly that "[the bankruptcy trustee] had already
answered his requests for admission," that she had answered the
requests for admission "through [the trustee]," that the
bankruptcy trustee took over the case and "showed them the
evidence that they needed to know," and that the Municipality
already "know[s] the information" and "ha[s] the evidence." She
also clearly declared that "if you want requests for admission,
the admission is no, I do believe that the cop attacked me,
that's the admission, what else do you want?"
While Genaro did not expressly move to withdraw her
admissions and did not mention Rule 36(b), we have acknowledged
that the rules of court "may be models of clarity to one schooled
in the law, [but] a pro se litigant might not find them so."10
Although we recognize that it is often difficult for a trial
court to find the correct balance between the need to remain
neutral and impartial and the need to inform pro se litigants of
the proper procedures for their attempted actions, we conclude
that in this instance it was an abuse of discretion not to inform
Genaro of "the proper procedure for the action . . . she [was]
obviously attempting to accomplish," namely, using a Rule 36(b)
motion to preclude summary judgment.11 Because this would not
require "open_ended participation by the court [that] would be
difficult to contain,"12 informing Genaro of "the technical
defects in [her] pro se pleadings [would not] compromise the
superior court's impartiality."13
Genaro's situation is one in which withdrawal of her
deemed admissions is wholly appropriate. Because "the disputed
admission[s] plainly concerned . . . key factual issue[s]," as
the Municipality's summary judgment motion essentially
acknowledges,14 withdrawal of the admissions would subserve the
merits of the action.15 Given the procedural confusion caused by
the temporary substitution of the bankruptcy trustee as the real
party in interest, the fact that the Municipality filed its
summary judgment motion only nine days after the deadline for
responses to its requests for admissions had passed, and Genaro's
stated willingness to submit the information, the Municipality
could not show that it would be prejudiced by withdrawal of the
deemed admissions. Thus, under Rule 36(b), Genaro should be
permitted to withdraw her deemed admissions.16
IV. CONCLUSION
Because the superior court had an obligation to inform
a pro se litigant clearly indicating that she wanted to withdraw
her deemed admissions of the proper procedures for doing so and
should have permitted her to withdraw those admissions, we
REVERSE the grant of summary judgment and REMAND to the superior
court with direction to permit Genaro to withdraw her deemed
admissions under Rule 36(b).
_______________________________
1Genaro had thirty days to respond under Alaska Rule of Civil
Procedure 36(a), plus an additional three days under Rule 6(c)
because the Municipality mailed the requests to Genaro.
2 Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998);
Hughes v. Bobich, 875 P.2d 749, 755 (Alaska 1994).
3Hughes, 875 P.2d at 755 (quoting City of Kenai v. Ferguson, 732
P.2d 184, 190 (Alaska 1987)).
4The Municipality contends that this issue and several others
raised by Genaro go beyond Genaro's list of points on appeal.
However, Genaro's points on appeal encompass the claims she
actually made, her arguments are adequately briefed, and we can
address her arguments "effectively without reviewing
untranscribed portions of the electronic record." Alaska Rule of
Appellate Procedure 204(e). The Municipality further argues that
some of Genaro's claims were not raised below. As explained
later in this opinion, the issue whether the trial court should
have given Genaro an opportunity to withdraw her admissions was
adequately raised below. Because of our resolution of this case,
we need not address the other two Genaro claims challenged by the
Municipality and therefore need not address the Municipality's
contention.
5Alaska R. Civ. P. 36(b).
6Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000) (internal
quotations omitted).
7745 P.2d 66, 75 (Alaska 1987).
8768 P.2d 1097, 1099 (Alaska 1989).
94 P.3d at 321; see also Kaiser v. Sakata, 40 P.3d 800, 803
(Alaska 2002) (reiterating that pro se litigant "is expected to
make a good faith attempt to comply with judicial procedures and
to acquire general familiarity with and attempt to comply with
the rules of procedure - absent this effort, he or she may be
denied the leniency otherwise afforded pro se litigants")
(footnotes omitted).
10Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998).
But see Bauman, 768 P.2d at 1099 (asserting that Civil Rules were
"promulgated for the specific purpose of giving fair and
reasonable notice to all parties of the appropriate procedural
standards that should be uniformly applied when any party,
including a pro se litigant, seeks relief in [civil litigation],"
and advising that "[a] pro se litigant who wants to initiate such
an action should familiarize himself or herself with the rules of
procedure").
11Breck, 745 P.2d at 75. The Municipality maintains that Genaro
did not need the superior court to inform her of the opportunity
under Rule 36(b) to move or withdraw her admissions because the
Municipality pointed Genaro to Rule 36 in the instructions
accompanying its first discovery request and warned her of the
consequences of failing to respond. See Willoya v. State, Dep't
of Corrections, 53 P.3d 1115, 1123 (Alaska 2002) (holding that
court had no obligation to inform pro se litigant of procedural
requirements due to clear evidence in record, including inter
alia defendant's mention of requirements in summary judgment
motion, that litigant knew requirements). The instructions did
not describe the option of withdrawing any deemed admissions,
however, and unlike Willoya, Genaro made no statements indicating
her knowledge of the requirements. Therefore, there is not
"clear evidence in the record that [s]he knew the requirements."
Id.
12Bauman, 768 P.2d at 1099.
13Collins, 957 P.2d at 982.
14"Each admission either negates an essential element of one or
more cause of action alleged in her complaint, establishes that
no damages resulted therefrom, or else establishes one or more
affirmative defense thereto. There remain, therefore, no genuine
issues of material fact necessary to be litigated . . . ."
15See Hughes v. Bobich, 875 P.2d 749, 755-56 (Alaska 1994).
16Genaro raises two other arguments on appeal. First, Genaro
contends that the superior court erred by dismissing the entire
case instead of the case against only the Municipality. Genaro
notes that only the Municipality moved for summary judgment and
only on its own behalf. The Municipality argues that this point
was never raised below and that the police officers were not
properly served. We need not address this issue because our
decision reinstates the case against all defendants. Second,
Genaro asserts that the Municipality presented no evidence upon
which the superior court could have based its grant of summary
judgment. Because we are reversing the grant of summary
judgment, we need not consider this argument either.
