Opinion
Case No. CV-01-092-E-BLW
December 18, 2002
ORDER
The Magistrate Judge issued an order, entered on December 11, 2002, granting Defendants an extension of time to respond to the Government's motions for summary judgment and partial summary judgment. For the reasons discussed below, the Court will vacate the Magistrate Judge's order (Docket No. 97), deny the Motion for Extension of Time (Docket No. 95), and deny the Motion to Amend Answer and Stay Proceedings (Docket No. 91).
In an Order entered October 23, 2002, the Court denied Defendants' prior motion for an extension of time, noting that all briefing on the pending motions for summary judgment had been completed. In an Order entered November 7, 2002, the Court determined that oral argument on the pending motions would not be necessary and that the motions would be decided on the submissions of the parties. The motions for summary judgment have therefore been under advisement since November 7, 2002.
The Court also held in abeyance until the Court issued its decision on the pending summary judgment motions any withdrawal by counsel for Defendants. Robert Alan Jones has, since that time, sought and obtained an order from the Clerk of the Court allowing him to appear pro hac vice in this matter for Defendants. The Court notes that there has not yet been designation by Mr. Jones of local counsel.
The order issued by the Magistrate Judge granting an extension of time has the effect of overruling the Court's previous orders denying an extension of time, determining that the briefing on the pending summary judgment motions was completed, and determining that those motions would be decided on the submissions before the Court. The Court is sure that the Magistrate Judge was unaware of the Court's prior orders when he issued the order granting Defendants additional time to file responses to the motions for summary judgment, and that the Magistrate Judge did not intend to overrule the Court's prior orders.
The Government's Motion for Partial Summary Judgment was filed on June 20, 2002; the Government's Motion for Summary Judgment was filed on August 191 2002. Ms. Sluyter entered an appearance for Defendants on September 9, 2002, and the Court allowed Defendants to file a late response to the motions for summary judgment. Defendants' filed their response on September 20, 2002, and the Government flied its reply on September 27, 2002.
As to the merits of Defendants' Motion for Extension of Time, the Court has reviewed the entire record and does not find good cause exists for overruling its prior orders. The Court therefore will vacate the Magistrate Judge's order entered on December 11, 2001, and deny Defendants' Motion for Extension of Time.
Defendants' reasons for seeking an extension of time relate to the adequacy of the representation rendered by Ms. Sluyter and the eligibility of Ms. Sluyter to represent Defendants before the Court. The Court notes that Defendants have been represented during the relevant time period by Douglas K. Merkley, who is eligible to represent Defendants before the Court. Moreover, Defendants do not contend that Ms. Sluyter was not eligible to represent them previously, only that she is now not eligible to do so. The Court does not find that the current eligibility or ineligibility of Ms. Sluyter to represent Defendants is a sufficient basis to grant Defendants' Motion for Extension of Time.
As to the purported adequacy of representation by Ms. Sluyter, the Court notes that there is no constitutional or statutory right to effective assistance of counsel in a civil case, see Friedman v. Arizona, 912 F.2d 328, 333 (9th Cir. 1990), and that the appropriate remedy, if Defendants feel that Ms. Sluyter rendered them inadequate representation, is a malpractice suit. See Bell v. Eastman Kodak Co., 214 F, 3d 798, 802 (7th Cir. 2000).
The Court also has reviewed Defendants' Motion for Leave to File an Amended Answer and Stay Proceedings. The Court does not find that good cause exists for granting this motion to amend, which was filed more than seven months after Defendants' filed their answer, more than five months after the Government moved for partial summary judgment, more than three months after the Government moved for summary judgment, and more than two months after Defendants filed a response to the Government's motions for summary judgment. The Court will therefore deny Defendants' Motion to Amend. The Court also does not find that good cause exists to stay these proceedings, and will thus deny Defendants' request to stay.
The statute of limitations defense Defendants seek to raise in their amended answer does not appear to be viable. The applicable statute of limitations is ten years, see 26 U.S.C. § 6502 (a)(1). This action, filed in March 2001, seeks to recover assessments made on or after July 23, 1997. The action was therefore filed well within the statutory period.
If, as Defendants assert, the Government has not complied with discovery and/or disclosure requirements, the appropriate remedy is for Defendants to move the Court to compel the Government to disclose the information and/or to comply with Defendants' discovery requests.
NOW THEREFORE IT IS HEREBY ORDERED that the Order entered on December 11, 2001 (Docket No. 97) is VACATED, and Defendant's Motion for Extension of Time (Docket No. 95) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion to Amend Answer and Stay Proceedings (Docket No. 91) is DENIED.
IT IS FURTHER ORDERED that the Motions for Summary Judgment (Docket Nos. 55 and 62) are deemed under advisement.