Memorandum of Decision Re: Recovery of Fees After Trial

DO NOT PUBLISH This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
In re
VINCENT M. DEDOMINICO,				No. 01-10563
		v.						A.P. No. 01-1077
Memorandum on Motion for Assessment of Fees and Expenses

At trial, the court resolved most ultimate issues in favor of defendant. He now requests an assessment of fees and expenses under FRCP 37(c)(2) based on the theory that his requests for admission of these issues had been denied during discovery.

The requested admissions had nothing to do with specific documents or readily ascertainable facts. Rather, they went to the ultimate issues upon which the case centered. To award sanctions for denial of such requested admissions would be tantamount to determining that this action was brought in bad faith. The true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail. In re Mercy Medical Center, 22 F.3d 933, 937 (9th Cir. 1994). While the court came out in favor of defendant, the action was not meritless and plaintiff’s denials were reasonable even though she did not prevail on the issues at trial.

For the foregoing reasons, plaintiff is not liable for fees and expenses under FRCP 37(c)(2). The motion will accordingly be denied. Either side may submit an appropriate form of order.

Dated:  August 19, 2002                                                 ___________________________
                                                                                          Alan Jaroslovsky