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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


BRENDA GENARO,           )
                              )    Supreme Court No. S-10681
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3AN-99-12511 CI
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.


          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



          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.


          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
          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


          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
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
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."
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.