Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 BNSF RAILWAY COMPANY, Case No.: 23-cv-01202-JLB 14 Plaintiff, ORDER DENYING PACIFIC STEEL, 15 v. INC.’s MOTION REGARDING AMENDED RESPONSES TO 16 PACIFIC STEEL, INC., REQUESTS FOR ADMISSIONS 17 Defendant. PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 36(b) 18 19 [ECF Nos. 90, 96, 97] 20 Before the Court is the Motion Regarding Amended Responses to Requests for 21 Admission Pursuant to Federal Rule of Civil Procedure 36(b) (“Motion”) filed by 22 Defendant Pacific Steel, Inc. (“Defendant”). For the reasons set forth below, Defendant’s 23 Motion is DENIED. 24 I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 25 Plaintiff BNSF Railway Company (“Plaintiff”) is the owner of property located in 26 National City, San Diego County, California on San Diego County Assessor Parcel 27 Numbers 559-040-46 and 559-040-52 (the Property). (ECF No. 1 at 3, ¶ 6.) In 1977, 28 Plaintiff’s predecessor in interest, the Atchison, Topeka & Santa Fe Railway Company 1 (“ATSF”), as lessor, executed a lease agreement (“1977 Lease” or “1977 Lease 2 Agreement”) with Scrap Disposal, Inc. (“SDI”), as lessee, for the use of the northern and 3 central portions of the Property for the handling and storage of scrap materials. (Id. at 3, 4 ¶ 7.) In 1978, ATSF and SDI entered into a second lease agreement (“1978 Lease” or 5 “1978 Lease Agreement”)1 covering the southern portion of the Property. (Id. at 7, ¶ 12.) 6 In May 1980, SDI filed for protection under Chapter 11 of the United States 7 Bankruptcy Code. (ECF No. 90-14 at 3.) In July 1981, a trustee in SDI’s bankruptcy 8 proceedings assumed the Lease. (ECF No. 90-9 at 2-3.) The bankruptcy trustee assigned 9 the Leases to Western States Investment Corporation, which in turn assigned the Leases to 10 San Diego Steel, Inc. (“SDS”). (Id.; ECF No. 96-1 at 2, ¶ 3.) In August 1981, SDS filed 11 a Certificate of Amendment of Articles of Incorporation changing its name to Pacific Steel, 12 Inc. (“PSI”). (ECF No. 90-13 at 5; see also ECF No. 103-2 at 2, ¶ 2.) In November 1982, 13 the United States Bankruptcy Court for the Southern District of California entered an order 14 approving a liquidating plan of reorganization for SDI. (ECF No. 90-14.) 15 Plaintiff commenced the instant litigation against Defendant on June 29, 2023, 16 seeking “redress against its former tenant[, Defendant,] . . . for damaging [Plaintiff’s] 17 property located immediately adjacent to and west of [Defendant’s] property at 1700 18 Cleveland Avenue in National City, California . . . and for failing to pay rent.” (ECF No. 19 1 at 2, ¶ 1.) In its Complaint, Plaintiff alleges the following: 20 Defendant operated a scrap metal recycling business on the Property pursuant to the 21 Lease Agreements. (Id. at 2 & 11, ¶¶ 1 & 16.) The Lease Agreements contain provisions 22 for payment of rent and indemnification by Defendant for all loss, damage, or expense 23 incurred by Plaintiff arising out of Defendant’s use of the Property, including any “fines 24 25 26 1 The 1977 Lease Agreement and the 1978 Lease Agreement were amended in 1978. 27 (ECF Nos. 80-11 & 80-12.) The original lease agreements and the supplemental lease agreements shall be referred to collectively as the “Leases” or the “Lease Agreements.” 28 1 penalties, clean-up and disposal costs.” (Id. at 4–11, ¶¶ 8–15.) 2 The California Department of Toxic Substances Control (“DTSC”) sued Defendant 3 for environmental violations in 2004 and 2015, and the state court ordered Defendant to 4 investigate and remediate the contamination. (Id. at 2, ¶ 1.) As part of a July 2004 5 stipulated judgment, Defendant agreed to monetary terms and to enter into a Corrective 6 Action Consent Agreement with DTSC. (Id. at 12–13, ¶¶ 21– 22.) As part of the 7 Corrective Action Consent Agreement, Defendant was required to submit an Interim 8 Measures Workplan (“IMW”) containing proposals to remediate contamination and to 9 reduce the threat of the release of hazardous waste or hazardous constituents on the 10 Property. (Id. at 13, ¶ 23.) During inspections of the Property between 2010 and 2013, 11 DTSC observed several violations of the Hazardous Waste Control Law (“HWCL”), the 12 California Health & Safety Code, and the 2004 stipulated judgment. (Id. at 14, ¶ 28.) 13 In 2015, DTSC sued Defendant again, alleging that Defendant had “committed 14 multiple violations of the HWCL,” including by storing hazardous waste without 15 authorization and by violating other provisions of the HWCL and the terms of the 2004 16 stipulated judgment. (Id. at 15, ¶ 30.) In a stipulated judgment approved by the state court 17 in January 2016, Defendant agreed to both injunctive and monetary terms and conditions. 18 (Id. at 16, ¶¶ 32–33.) In May 2019, Defendant submitted a draft IMW to DTSC. (Id. at 19 35, ¶ 35.) Defendant’s draft IMW identified elevated concentration of metals, 20 polychlorinated biphenyls, polycyclic aromatic hydrocarbon compounds, and petroleum 21 hydrocarbons in the soil at the Property. (Id.) The IMW was approved by DTSC for 22 implementation on May 31, 2022. (Id. at 16, ¶ 36.) 23 On December 6, 2022, DTSC sent Defendant a letter stating that Defendant was out 24 of compliance with prior agreements. (Id. at 17, ¶ 38.) 25 On January 13, 2023, Plaintiff served on Defendant a Notice of Termination of 26 Leases, providing the requisite 30-day notice under Section 14 of the Lease Agreements. 27 /// 28 /// 1 (Id. at 18, ¶ 44.) After Plaintiff sent the Notice of Termination of Leases, Defendant sent 2 a schedule for implementing the IMW to DTSC on February 3, 2023. (Id. at 17, ¶ 39.) 3 Several weeks later, Plaintiff denied Defendant permission to access the Property. (Id.) 4 On April 11, 2023, Plaintiff entered into a Voluntary Cleanup Agreement with DTSC to 5 promptly carry out the cleanup of the Property under DTSC oversight. (Id. at 18, ¶ 47.) 6 Plaintiff asserts that it remediated the Property in accordance with the 2021 IMW. (ECF 7 No. 80-3 at 6, ¶ 19.) Plaintiff tendered its claims to Defendant and demanded that 8 Defendant indemnify Plaintiff for the cleanup, as required by the Lease Agreements. (ECF 9 No. 1 at 18, ¶ 48.) Defendant responded on June 14, 2023, asserting that Plaintiff’s breach 10 of the Lease Agreements excused its obligation to indemnify Plaintiff under those 11 agreements. (Id. at 18, ¶ 49.) 12 Plaintiff’s June 2023 Complaint brings the following causes of action against 13 Defendant: (1) specific performance; (2) breach of contract; (3) breach of implied covenant 14 of good faith and fair dealing; (4) express contractual indemnity; (5) nuisance; (6) trespass; 15 (7) negligence; (8) waste; (9) equitable and implied indemnity and contribution; 16 (10) contribution under California’s Hazardous Substances Account Act; (11) contribution 17 under federal common law; and (12) declaratory relief. (Id. at 19–36, ¶¶ 53–138.) Plaintiff 18 seeks general damages, the costs of investigating, characterizing, removing, and 19 remediating the Property, the total amount of outstanding rent, compensatory damages, an 20 order confirming Defendant’s indemnity and defense obligations, Defendant’s equitable 21 share of response costs with interest, punitive damages, attorney’s fees, interest, and costs 22 of suit. (Id. at 36–37.) 23 In paragraph 7 of its Complaint, Plaintiff “allege[d] that Defendant [] is the 24 successor-in-interest to [SDI].” (Id. at 4, ¶ 7; see also id. at 7, ¶ 12.) Defendant asserted 25 in its Answer that it “lacks information sufficient to form a belief as to the allegations of 26 /// 27 /// 28 /// 1 Paragraph 7, and on that basis denies them.” (ECF No. 11 at 2, ¶ 7; see also id. at 2, ¶ 12.) 2 In March 2024, Plaintiff propounded interrogatories, requests for production, and requests 3 for admission. (ECF No. 90-2 at 2, ¶ 4.) In April and June 2024, Defendant served 4 responses to set one of Plaintiff’s discovery requests. (Id. at 2, ¶ 5; ECF No. 90-6 at 2, 4.) 5 On March 4, 2025, Defendant served amended responses to Plaintiff’s requests for 6 admission (Amended Responses). (ECF No. 90-2 at 2, ¶ 6; ECF No. 90-5.) In its Amended 7 Responses, Defendant objected to the requests for admission on the basis that “the term 8 ‘successor’ [was] undefined, subject to varying interpretations, [was] used inappropriately 9 and incorporate[d] inappropriate legal conclusions.” (ECF No. 90-5 at 4-5, ¶ 8.) Further, 10 Defendant asserted that it “is not the legal successor to [SDI],” as Defendant merely 11 “succeeded” SDI as a tenant and is not liable for SDI’s alleged contamination of Plaintiff’s 12 Property. (Id. at 5, ¶ 8.) Thus, Defendant maintained that liability lay with BNSF. (Id.) 13 The requests for admission, initial responses and Amended Responses at issue are 14 as follows: 15 Request for Admission No. 2 “Admit that, from approximately 1978 to February 12, 2023, 16 YOU conducted metal recycling operations on the BNSF 17 PROPERTY.”2 18 Response to Request No. 2 19 “Admit that [Defendant] engaged in metal recycling operations on portions of the [Plaintiff’s] Property, as defined.”3 20 21 Amended Response to Request No. 2 “Admitted that [Defendant] engaged in metal recycling 22 operations on portions of the BNSF PROPERTY, as defined. 23 Denied that [Defendant] commenced operations in 1978. [Defendant] accepted all right, title and interest in and to the 24 Leases by Irrevocable Assignment of Lease and Acceptance of 25 26 27 2 (ECF No. 90-5 at 5.) 28 3 1 Assignment dated July 29, 1981. [Defendant] is not the legal successor to Scrap Disposal Inc.”4 2 3 Request for Admission No. 6 “Admit that [Plaintiff] incurred costs to restore the damage YOU 4 caused to the BNSF PROPERTY.”5 5 Response to Request No. 6 6 “Denied.”6 7 Amended Response to Request No. 6 8 “Responding Party objects to the term “incurred,” which is a 9 term of art in connection with environmental litigation, rendering this Request vague, ambiguous, and confusing. Responding 10 Party contends that [Plaintiff] did not “incur” costs in the sense 11 that [Plaintiff] was under an obligation to pay them and that [Plaintiff] voluntarily chose to expend funds unnecessarily. 12 Notwithstanding the foregoing objection, denied. [Plaintiff]’s 13 and/or its prior tenants caused and/or contributed to historical contamination, including but not limited to petroleum 14 hydrocarbons. [Defendant] is not responsible for any costs 15 associated with [Plaintiff]’s efforts to remediate the Lease Area for [Plaintiff]’s or its prior tenants’ historical contamination. By 16 halting [Defendant]’s access to the Lease Area, stating it would 17 not allow future access to the Lease Area and commencing cleanup work, [Plaintiff] prevented [Defendant] from continuing 18 its indemnification for the cleanup.”7 19 Request for Admission No. 16 20 “Admit that YOU are a successor to Scrap Disposal, Inc.”8 21 Response to Request No. 16 22 “Admit.”9 23 24 25 4 (ECF No. 90-5 at 5.) 5 (ECF No. 96-5 at 5.) 26 6 (Id.) 27 7 (ECF No. 90-5 at 5-6.) 8 (ECF No. 96-5 at 7.) 28 9 1 Amended Response to Request No. 16 “Denied. [Defendant] is not the legal successor to Scrap Disposal 2 Inc. By assignment dated July 29, 1981, Joseph N. Fox, Trustee 3 in bankruptcy, assigned all his right, title and interest in and to the [L]eases to Western States Investment Corporation. 4 [Defendant] then accepted from Western States Investment 5 Corp. the assignment of all right, title and interest in and to the [L]eases as of July 29, 1981. [Defendant] “succeeded” Scrap 6 Disposal Inc. as a tenant of [Plaintiff] but is not legally 7 responsible for Scrap Disposal Inc.’s contamination of the site. That liability lies with [Plaintiff].”10 8 9 Request for Admission No. 17 “Admit that between August 1, 1977 and February 12, 2023, 10 YOU (as successor to Scrap Disposal, Inc.) leased the real 11 property identified as Exhibit A to the 1977 L[ease]” (herein, the “1977 LEASE AREA”).”11 12 13 Response to Request No. 17 “Admit that [Defendant] has leased portions of the premises as 14 defined in the lease, but the premises covered by the lease 15 changed over time.”12 16 Amended Response to Request No. 17 17 “Denied that [Defendant] is the “successor to Scrap Disposal, Inc” and denied that [Defendant] assumed the lease in 1977. 18 Admitted that [Defendant] has leased portions of 1977 LEASE 19 AREA, but the premises covered by the 1977 L[ease], and the terms of the lease agreement, changed over time, and 20 [Defendant] did not become a tenant or accept assignment of the 21 Leases until July 29, 1981. In or about April 2018, [Defendant] ceased operations on the 1977 LEASE AREA and only 22 maintained the 1977 L[ease] for purposes of access for 23 remediation and compliance.”13 24 25 26 10 (ECF No. 90-5 at 6.) 27 11 (ECF No. 96-5 at 7.) 12 (Id.) 28 13 1 Request for Admission No. 18 “Admit that between November 1, 1978 and February 12, 2023, 2 YOU (as successor to Scrap Disposal, Inc.) leased the real 3 property identified as Exhibit A to the 1978 L[ease] . . . .”14 4 Response to Request No. 18 5 “Admit that [Defendant] has leased portions of the premises as defined in the lease, but the premises covered by the lease 6 changed over time.”15 7 Amended Response to Request No. 18 8 “Denied that [Defendant] is the “successor to Scrap Disposal, 9 Inc.” Denied that [Defendant] leased the referenced property until 2023. Admitted that [Defendant] has leased portions of the 10 1978 LEASE AREA, but the premises covered by the 1978 11 Lease, and the terms of the lease agreement, changed over time. [Defendant] did not accept assignment of the Leases until July 12 29, 1981, and [Defendant] did not use or occupy the 1978 13 LEASE AREA [sic] in approximately 2002. [Plaintiff] constructively evicted [Defendant] from the 1978 LEASE AREA 14 (Southern Parcel) as of 2002 through its excavation activities. 15 [Plaintiff] told [Defendant] no further rent was due under the 1978 Lease sometime around 2002.”16 16 Request for Admission No. 25 17 “Admit that you have listed for sale your real property located at 1700 Cleveland Ave., National City, CA 91950 [sic] is presently 18 for sale.”17 19 Response to Request No. 25 20 “Denied.”18 21 Amended Response to Request No. 25 22 “Admitted.”19 23 24 14 (ECF No. 96-5 at 8.) 25 15 (Id.) 26 16 (ECF No. 90-5 at 7.) 17 (Id. at 8.) 27 18 (ECF No. 80-29 at 3.) 28 19 (ECF No. 90-5 at 8.) 1 In April 2025, counsel for Plaintiff sent counsel for Defendant a letter objecting to 2 Defendant’s withdrawal of its admission that it is a successor to SDI, noting that Defendant 3 failed to file a motion seeking leave to withdraw or amend its admission in accordance with 4 Federal Rule of Civil Procedure 36(b). (ECF No. 90-2 at 2, ¶ 8; ECF No. 90-6 at 2-4.) The 5 parties met and conferred, and Plaintiff rejected Defendant’s suggestion to seek an 6 extension of fact discovery in exchange for Plaintiff’s acceptance of the Amended 7 Responses. (ECF No. 90-2 at 2-3, ¶¶ 9-10.) 8 II. APPLICABLE LAW 9 Federal Rule of Civil Procedure 36 provides, in pertinent part: 10 (a) Scope and Procedure.

11 (1) Scope. A party may serve on any other party a written 12 request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating 13 to: 14 (A) facts, the application of law to fact, or opinions about 15 either; and 16 (B) the genuineness of any described documents. . . . 17 (b) Effect of an Admission; Withdrawing or Amending It. A 18 matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or 19 amended. Subject to Rule 16(e),20 the court may permit 20 21 20 Federal Rule of Civil Procedure 16(e) provides that 22 23 [t]he court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. 24 The conference must be held as close to the start of trial as is 25 reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented 26 party. The court may modify the order issued after a final pretrial 27 conference only to prevent manifest injustice.

28 1 withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it 2 would prejudice the requesting party in maintaining or defending 3 the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the 4 party in any other proceeding. 5 Fed. R. Civ. P. 36(a)(1), (b). “The first half of the test in Rule 36(b) is satisfied when 6 upholding the admissions would practically eliminate any presentation of the merits of the 7 case.” Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995). Regarding the second 8 prerequisite, the Ninth Circuit has explained that 9 [t]he prejudice contemplated by Rule 36(b) is not simply that the 10 party who obtained the admission will now have to convince the 11 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 12 key witnesses, because of the sudden need to obtain evidence 13 with respect to the questions previously deemed admitted. The party who obtained the admission has the burden of proving that 14 withdrawal of the admission would prejudice the party’s case. 15 16 Hadley, 45 F.3d at 1348 (citations and quotation marks omitted) (further explaining that 17 “[c]ourts are more likely to find prejudice when the motion for withdrawal is made in the 18 middle of trial,” as “[o]nce trial begins, a more restrictive standard is to be applied in 19 permitting a party to withdraw an admission”). 20 “Trial courts have been advised to be cautious in exercising their discretion to 21 permit withdrawal or amendment of an admission.” Conlon v. United States, 474 F.3d 616, 22 621 (9th Cir. 2007) (citation and brackets omitted). “Where the moving party has satisfied 23 both prongs of the Rule 36(b) test, the district court may allow withdrawal, but is not 24 required to do so.” S.E.C. v. Glob. Express Cap. Real Est. Inv. Fund, I, LLC, 289 F. App’x 25 183, 191 (9th Cir. 2008) (citing Conlon, 474 F.3d at 625); see also Conlon, 474 F.3d at 621 26 (stating that “Rule 36(b) is permissive, not mandatory, with respect to the withdrawal of 27 admissions”). 28 /// 1 III. PARTIES’ ARGUMENTS 2 Defendant “requests that the Court issue an order specifically allowing [Defendant] 3 to amend its response to [Request for Admission] No. 16” and, further, “that the Amended 4 Responses dated March 4, 2025 be deemed [its] response.” (ECF No. 90-1 at 17.) 5 Defendant asserts that its amended response to Request for Admission No. 16 “was 6 intended to correct the ambiguity created by [Plaintiff’s] undefined use of the term 7 ‘successor’ and to provide the Court with a truthful and accurate record for trial.” (Id. at 8 10.) Defendant argues that Request for Admission No. 16 “concerns a substantive and core 9 element of the instant matter”—namely, whether Defendant is the legal successor to SDI. 10 (Id. at 12.) According to Defendant, this issue bears upon “the extent” of its purported 11 liability as a subsequent tenant under the Leases. (Id.) Defendant therefore maintains that 12 amending its response to Request for Admission No. 16 is necessary in order to secure a 13 “key component of its defense.” (Id. at 13.) Further, Defendant points out that it denied 14 successor liability in its Answer. (Id. (citing ECF No. 90-4 at 3, ¶¶ 7, 12).) Moreover, 15 Defendant insists that “there are contractual and statutory bases under California law as 16 well as federal bankruptcy law to conclude [that Defendant] is neither the legal successor 17 to SDI nor liable for SDI’s operations.” (Id.) Defendant also highlights the provision in 18 the lease assignment that Plaintiff would “look only to Assignee[, i.e., Defendant,] to 19 satisfy any liability for breach by lessee-assignee [i.e., Defendant] occurring after [the] 20 date of this Assignment.” (Id. (quoting ECF No. 90-9 at 3-4 (emphasis added)).) Thus, 21 Defendant asserts that permitting amendment of its response to request for admission No. 22 16 “would promote the presentation of the merits of the action.” (Id. at 14 (quoting Fed. 23 R. Civ. P. 36(b)). 24 Defendant also contends that granting the Motion would not prejudice Plaintiff, as 25 the Court has not yet set a trial date. (Id. at 15.) Further, Defendant asserts that it offered 26 Plaintiff the opportunity to conduct appropriate supplemental discovery regarding the 27 question of successor liability, and that Plaintiff refused. (Id.) Defendant maintains that it 28 “remains willing to afford [Plaintiff] appropriate discovery on the issue of successor 1 liability as approved by the Court.” (Id. at 16.) Moreover, Defendant contends that 2 “reliance on a deemed admission in preparing a summary judgment motion does not 3 constitute prejudice.” (Id. at 16 (quoting Conlon, 474 F.3d at 624).) Thus, Defendant 4 insists that granting the Motion would not “unfairly prejudice” Plaintiff at trial. (Id. at 17.) 5 Plaintiff counters that the Court should deny the Motion, because Defendant 6 admitted that it was a successor to SDI both in its April 24, 2024 responses to Plaintiff’s 7 requests for admission and in the deposition testimony of Sandra Mendez, Defendant’s 8 Rule 30(b)(6) witness. (See ECF No. 96 at 9 (citing ECF Nos. 96-2, 96-5).)21 Further, 9 Plaintiff asserts that Defendant’s written admissions were verified by a corporate 10 representative and that Defendant’s deposition testimony on successorship was conducted 11 under penalty of perjury. (Id.) Plaintiff highlights that Defendant only challenged 12 discovery request terms, such as “successor,” as vague after retaining new counsel and 13 insists that there was no attempt to “confuse” or “trap” Defendant where Plaintiff had used 14 the term “successor-in-interest” from the outset. (Id.) Plaintiff also alleges that in January 15 1993, it sent Defendant a letter asserting that Defendant was liable for SDI’s contamination 16 of the Property under the doctrine of successor liability. (Id.) Moreover, Plaintiff 17 maintains that the Lease Assignment does not determine the issue of successor liability, as 18 the cited portion merely provides that “[ATSF/BNSF] will look only to Assignee [San 19 Diego Steel/PSI] to satisfy any liability for breach by lessee-assignee occurring after [the] 20 date of this Assignment [(July 29, 1981)].” (Id. at 10-11 (quoting ECF No. 90-9 at 3).) 21 Plaintiff further asserts that Defendant fails to point to any specific language from the SDI’s 22 adversary proceeding in bankruptcy establishing that Defendant is not SDI’s legal 23 successor. (Id. at 11.) Regardless, Plaintiff insists that Defendant has failed to prove that 24 25 21 When questioned regarding whether Defendant acquired SDI’s business, Sandra 26 Mendez testified, “Yes, yes.” (ECF No. 96-2 at 5.) In response to a question regarding 27 whether Defendant’s admission vis-à-vis Request for Admission No. 16 that it is a successor to SDI related to Defendant’s acquisition of SDI’s business, Ms. Mendez 28 1 SDI contaminated the Property. (Id. at 13.) Plaintiff also notes that the objective of the 2 workplan designed by Defendant and implemented by Plaintiff was to remove 3 contamination caused by Defendant. (Id.) Thus, Plaintiff maintains that denying the 4 Motion would not undermine Defendant’s presentation of the merits of its case. (Id.) 5 Moreover, Plaintiff asserts that permitting amendment of Defendant’s admissions 6 would prejudice Plaintiff absent further discovery. (Id. at 14.) Highlighting Defendant’s 7 failure to obtain permission from the Court before filing its Amended Responses, Plaintiff 8 contends that this oversight is consistent with a “pattern of disregard” by Defendant for the 9 Court’s discovery deadlines and the Federal Rules of Civil Procedure. (Id. at 14-15.) 10 Should the Court grant the Motion, Plaintiff requests that the Court: (i) authorize Plaintiff 11 to serve on Defendant an additional ten written interrogatories and ten requests for 12 admission related to the successorship issue, with Defendant’s responses due within 15 13 days; (ii) permit one additional day of Fed. R. Civ. P. 30(b)(6) deposition testimony of 14 Defendant on the successorship issue, at Defendant’s expense, including attorneys’ fees; 15 and (iii) declare that Defendant’s original discovery responses and deposition testimony 16 may be used by Plaintiff to impeach Defendant and defense witnesses at trial. (Id. at 21.) 17 Defendant filed a reply, asserting that accepting its Amended Responses would 18 promote truth seeking and due process. (ECF No. 97 at 9.) Defendant also contends that 19 in drafting the remediation workplan, it did not accept liability for contamination caused 20 by prior tenants. (Id. at 11.) Further, Defendant maintains that it would be inequitable to 21 disallow the requested amendment, where Defendant seeks to rectify the errors of its prior 22 counsel. (Id. at 12.) 23 IV. DISCUSSION 24 First, the parties focus their arguments on Request for Admission No. 16, without 25 substantively addressing any of the other amended responses. With respect to Request for 26 Admission No. 25, Defendant’s initial response was a denial, and the amended response 27 28 1 was an admission. As a party has an ongoing obligation to supplement its responses, and 2 as Rule 36(b) does not require leave of court to change a response from a denial to an 3 admission, the Court does not consider Request for Admission No. 25 to be part of this 4 motion. 5 On the other hand, Requests for Admission Nos. 2 (“Admit that, from approximately 6 1978 to February 12, 2023, YOU conducted metal recycling operations on the BNSF 7 PROPERTY”) and 6 (“Admit that [Plaintiff] incurred costs to restore the damage YOU 8 caused to the BNSF PROPERTY”) are not addressed at all in Defendant’s motion. For 9 Request for Admission No. 2, the Court can imagine how Defendant might extend its 10 argument about successor liability to the basis for endeavoring to amend its response to 11 this request, but the Court limits itself to considering only the arguments made by the 12 parties. See Khoja v. Orexigen Therapeutics, Inc., 498 F. Supp. 3d 1296, 1309 n.4 (S.D. 13 14 15 22 Rule 26 of the Federal Rules of Civil Procedure provides, in pertinent part:

16 (e) Supplementing Disclosures and Responses. 17 (1) In General. A party who has made a disclosure under 18 Rule 26(a)--or who has responded to an interrogatory, 19 request for production, or request for admission--must supplement or correct its disclosure or response: 20 21 (A) in a timely manner if the party learns that in some material respect the disclosure or response is 22 incomplete or incorrect, and if the additional or 23 corrective information has not otherwise been made known to the other parties during the discovery 24 process or in writing; or 25 (B) as ordered by the court. 26 27 Fed. R. Civ. P. 26(e)(1).

28 1 Cal. 2020) (declining to address an argument that was “not fully briefed by the [p]arties”); 2 see also Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (holding that appellant 3 waived his challenge to the constitutionality of a statute by failing “to present a specific, 4 cogent argument for [the court’s] consideration,” explaining that courts “will not 5 manufacture arguments for an appellant” and will “review only issues which are argued 6 specifically and distinctly in a party’s opening brief”). As no argument is put forth by 7 Defendant related to Requests for Admission Nos. 2 and 6, the motion to amend these 8 responses is DENIED. 9 The Court then turns to Defendant’s request to amend those responses wherein it 10 initially admitted being a “successor to Scrap Disposal, Inc.” (ECF No. 90-5 at 6-7; ECF 11 No. 96-5 at 7-8.) As noted above, “[t]he first half of the test in Rule 36(b) is satisfied when 12 upholding the admissions would practically eliminate any presentation of the merits of the 13 case.” Hadley, 45 F.3d at 1348 (emphasis added). Here, Defendant maintains that 14 amending its admission that it is SDI’s successor is necessary in order to preserve a “key 15 component of its defense.” (ECF No. 90-1 at 12-13.) The Court finds that this falls short 16 of establishing that upholding the admissions would practically eliminate any presentation 17 of the merits of the case. 18 Through the instant litigation, Plaintiff seeks to recoup costs incurred remediating 19 contamination caused by Defendant. Plaintiff seeks, inter alia, reimbursement from 20 Defendant for the cost of remediating the Property in accordance with the 2021 IMW. 21 (ECF No. 1 at 36, ¶ 2; ECF No. 80-3 at 6, ¶ 19 (attesting that “Plaintiff carried out the 22 remediation of the BNSF Property in the summer of 2023 in accordance with the 2021 23 IMW”); ECF No. 80-25 at 7 (stating that Plaintiff’s Revised Remedial Action Completion 24 Report was prepared in accordance with the 2021 IMW); ECF No. 80-26 (DTSC’s 25 Conditional Approval of Revised Remedial Action Completion Report); (ECF No. 80-27 26 at 5, 15-16, & 25-28.) The objectives of the 2021 IMW included “conducting additional 27 soil excavation of [constituents of concern] related to [Defendant’s] activities in areas of 28 identified risk to human health and the environment at the BNSF property” and 1 “conduct[ing] soil confirmation sampling in the excavated areas at the BNSF property to 2 confirm the elimination of potential for risk to human health and the environment related 3 to the soils impacted by [Defendant’s] activities.” (ECF No. 80-14 at 14-15) (emphasis 4 added). 5 Defendant argues that the question of successor liability is a key issue in the case, 6 and it surely is. The determination of whether Defendant is legally liable for the actions of 7 SDI could impact certain aspects of liability and damages. However, Defendant has not 8 made the case that the admission that Defendant is a successor of SDI is dispositive on 9 either liability or damages, or on any affirmative defense. In fact, Defendant does not even 10 argue that this is so, arguing, instead, that the determination of legal successorship “bears 11 upon the extent of PSI’s alleged liability . . . as well as the extent of BNSF’s liability as 12 the owner of the BNSF Property and landlord to various scrap recycling facilities of over 13 time.” (ECF No. 90-1 at 12 (emphasis added).) Defendant’s admissions, if allowed to 14 stand, still leave much to be presented on the merits of this case. 15 Other cases where parties were granted relief from admissions and deemed 16 admissions are informative. In Hadley, the plaintiff had been assessed a tax penalty, and 17 the United States filed a counterclaim to reduce that assessment to judgment. Hadley, 45 18 F.3d at 1347. The plaintiff failed to timely respond to requests for admissions, and “[t]he 19 deemed admissions amounted to a complete admission of liability for willful failure to pay 20 the taxes.” Id. at 1346. Thus, the first half of the test in Rule 36(b), whether “upholding 21 the admissions would practically eliminate any presentation of the merits of the case,” was 22 satisfied. Id. at 1348. 23 In Gallegos v. City of Los Angeles, 308 F.3d 987 (9th Cir. 2002), a Fourth 24 Amendment case, the Ninth Circuit affirmed the decision of the district court permitting 25 defendants to withdraw their admissions and granting of summary judgment in favor of the 26 defendants. Id. at 993-94. The two defendant officers in that case had admitted that they 27 had arrested the plaintiff. Id. at 990-91. The plaintiff did not dispute that the officers had 28 reasonable suspicion to detain him. Id. at 990. Further, the parties “apparently agree[d]” 1 the officers lacked probable cause for an arrest. Id. The only issue was whether plaintiff 2 was subjected to an investigatory detention or an arrest. Id. at 990-91 (explaining that “[i]f 3 this was an investigatory stop, it was legal, because it was justified by reasonable suspicion; 4 if it was an arrest, it was illegal, because the police lacked probable cause to make an 5 arrest). Without referencing Hadley or the “practically-eliminate-any-presentation-of-the- 6 merits-of-the-case” standard, the Ninth Circuit affirmed the decision of the trial court to 7 allow the withdrawal of the admission. The Court’s analysis was that “the officers’ 8 subjective characterization of their actions as an arrest—which, as discussed earlier, has no 9 bearing on our legal conclusion that, under the circumstances their actions did not amount 10 to an arrest—confuses this issue.” Id. at 993. 11 In Conlon, the plaintiff filed suit against the United States under the Federal Tort 12 Claims Act and proceeded on a single negligence claim arising out of his arrest and 13 subsequent imprisonment. Conlon, 474 F.3d at 619. He failed to respond to requests for 14 admission, and as a result, was deemed to have admitted that the defendant had not acted 15 negligently or wrongfully, and that neither his arrest nor his incarceration were the result 16 of any negligence or wrongful act or omission by the defendant. Id. at 619-20. Those 17 deemed admissions were the basis of the defendant’s motion for summary judgment. Id. 18 at 620. As such, the first half of the test in Rule 36(b) was satisfied in that upholding the 19 admissions eliminated any presentation of the merits of the case. Id. at 622. 20 In Snelson v. Daimler Trucks N. Am. LLC, No. 22-CV-551-BAS-DDL, 2023 WL 21 3186293 (S.D. Cal. May 1, 2023), a district court decision in a product liability case in this 22 district, the plaintiff failed to timely respond to requests for admissions, and his deemed 23 admissions negated the existence of a defect as to the defendant’s products. Id. at *1. Both 24 halves of the 36(b) test were found to support relief from the deemed admissions. Id. at 25 *3. 26 In Black v. City of San Diego, No. 21-CV-01990-RBM-JLB, 2025 WL 951283 (S.D. 27 Cal. Mar. 28, 2025), another district court decision, the relevant claim was for excessive 28 use of force by law enforcement officers. Id. at *4. The deemed admissions went to the 1 ultimate issue of whether the defendant used excessive force, to include admissions that 2 she physically restrained plaintiff “using an unreasonable amount of force,” that she had a 3 duty to intervene to stop another officer’s excessive use of force, and that she “applied 4 handcuffs to [p]laintiff . . . so as to inflict pain on [him].” Id. Consequently, the first prong 5 was found to be satisfied. Id. 6 By contrast, here, the admission that Defendant is a successor to SDI does not go 7 directly to the ultimate question at issue in the case and does not practically eliminate any 8 presentation of the merits. Defendant has not satisfied the first prong of Rule 36(b), so the 9 Court need not address the second prong. 10 Even where the party seeking relief satisfies both prongs of Rule 36(b), a court still 11 has discretion as to whether relief should be granted. See S.E.C., 289 F. App’x at 191 12 (citing Conlon, 474 F.3d at 625). In those circumstances, courts have considered such 13 things as how delayed the responses were, whether the propounding party is using the rule 14 to harass the other side, and whether the deemed admissions are counterfactual. See 15 Conlon, 474 F.3d at 622 (holding that where both Rule 36(b) prongs are satisfied, courts 16 may additionally consider whether a party demonstrated good cause for delay in 17 responding to requests for admission, further explaining that Rule 36(b) “is not to be used 18 in an effort to harass the other side” (citation and quotation marks omitted)); Vecron Exim 19 Ltd. v. Stokes, No. CV 17-02944-CAS (RAOx), 2018 WL 6168022, at *5 (C.D. Cal. June 20 20, 2018) (permitting withdrawal of deemed admission, where both prongs of Rule 36(b) 21 were satisfied and where the “admissions would be in direct contradiction with the 22 amended answer, and would effectively eliminate full consideration of the merits of the 23 case”). Had Defendant satisfied both prongs of the Rule 36(b) test, these other 24 considerations would still weigh against the Court exercising its discretion to grant the 25 requested relief. The admissions at issue were not deemed admissions resulting from an 26 inadvertent and brief delay in meeting a 30-day response deadline. Instead, Defendant 27 affirmatively responded to the requests at issue with admissions. Defendant is a 28 sophisticated, multi-million-dollar corporation that was represented by a sophisticated 1 ||national law firm. Further, the Court sees no indication that Plaintiff is using the rule for 2 purposes of harassment. These factors would weigh against a discretionary grant of relief. 3 ||The only factor that would weigh in favor of a discretionary grant of relief, if the 4 ||requirements of Rule 36(b) were satisfied, would be the disputed issue of whether the 5 ||admissions are counterfactual or legally incorrect. Thus, even if the prongs of Rule 36(b) 6 || were satisfied, the equities do not support granting of relief, and the Court would not 7 || exercise its discretion to do so.”* 8 CONCLUSION 9 For the foregoing reasons, Defendant’s Motion is DENIED. 10 IT IS SO ORDERED. 11 || Dated: February 23, 2026 12 pil death n. Jill L. Burkhardt 13 ited States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 38 . 3 The meaning of what Defendant admitted to, if there is any ambiguity, is a question for another day. 16