This blog has previously discussed the importance of thinking about what you put in writing. It is also worth remembering that what you put in writing may also be deemed a judicial admission and then used against your client.
This issue arose in Bonavito v. Nev. Prop. 1 LLC, 2013 U.S. Dist. LEXIS 150841 (D. Nev. Oct. 21, 2013) concerning a motion to dismiss. The plaintiff had defaulted the defendant and submitted documentation of his damages for the default judgment. The default was set aside prior to judgment and the defendant then moved to dismiss for lack of jurisdiction. Based upon the damages supporting the default judgment, the defendant argued the $75,000 jurisdictional threshold had not been met.
The defendant first sought to use the documentation supporting a default judgment as a judicial admission as to damages. The court noted as follows.
“Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them.” American Title Insurance Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). “[S]tatements of fact contained in a brief may be considered admissions of the party in the discretion of the district court.” Id. at 227 (emphasis in original). Where a party “tried to benefit” from a statement in a brief, that statement can be properly considered as a judicial admission. Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 557 (9th Cir. 2003) (finding that party’s prior statement regarding privity was a judicial admission). By contrast, where “the party making an ostensible judicial admission explains the error in a subsequent pleading or by amendment, the trial court must accord the explanation due weight.” Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 859-60 (9th Cir. 1995).
The court agreed, although the motion to dismiss was ultimately denied. “The Court exercises its discretion and finds that Bonavito’s claimed damages in his Motion for a Default Judgment may be considered by the court in calculating his amount in controversy for jurisdiction purposes.”