Opinion
1108-21L
03-04-2022
Roger M. Dail Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson Judge
This case will be called for trial in New York City on March 28, 2022, but the Commissioner has filed a motion (Doc. 9) to dismiss this case for failure to properly prosecute, under Rule 123(b). We will deny the motion.
The petition (Doc. 1) in this case was filed about a year ago on March 8, 2021. The Commissioner filed his answer (Doc. 5) on May 4, 2021. On November 15, 2021, we issued notice (Doc. 6) that this case will be tried at our New York City trial session beginning March 28, 2022, and we issued our standing pretrial order ("SPTO"), explaining the parties' obligations and deadlines for preparing for trial. Among other things, the SPTO requires that, no later than 21 days before the trial session--i.e., in this instance, by March 7, 2022--the parties must file one of four documents: a proposed stipulated decision, or a pretrial memorandum, or a motion to dismiss for failure to properly prosecute, or a status report.
Foreseeing this approaching March 7 deadline, the Commissioner filed the third option--a motion to dismiss for failure to properly prosecute--on February 25, 2022.However, as far as the motion discloses, the only failure to prosecute that is attributed to petitioner Roger M. Dail is that he has not responded to communications from the Commissioner that began on February 16, 2022, i.e., 11 days before that filing. Those communications consisted of an email and voicemail on February 16 and another voicemail on February 22. We do not approve of a party or counsel ignoring three communications over a period of 11 days, but, without more, such conduct cannot be fairly characterized as a "failure . . . properly to prosecute or to comply with these rules". We have sympathy for counsel for respondent--the party that does not have the burden of proof, and should not have to prod the petitioner into presenting his case--but if the Commissioner intends to urge the Court to resolve the case by dismissal for failure to prosecute, a more substantial predicate would have to be laid for such a resolution.
The Court has attempted to reach petitioner by telephone and has left voicemail on February 25, February 28, and March 1, 2022; but so far Mr. Dail has not responded. We therefore have a concern, congruent with the Commissioner's motion, that Mr. Dail may be failing to prepare for trial. It is therefore
ORDERED that the Commissioner's motion (Doc. 9) is denied without prejudice. It is further 1
ORDERED that, immediately upon receiving this order, and in any event no later than March 11, 2022, Mr. Dail shall telephone (at 202-521-0850) the Chambers Administrator of the judge signing this order for the purpose of conducting a pretrial telephone conference among the judge and the parties. It is further
ORDERED that, promptly after service of this order, the Chambers Administrator shall send an email to Mr. Dail at the email address appearing on his petition, advising him of the instruction of this order (in the preceding paragraph) to initiate a telephone call. It is further
ORDERED that, in addition to making electronic service of this order (in accordance with Mr. Dail's election to receive electronic service), the Clerk of the Court shall mail to Mr. Dail, at his mailing address appearing on his petition, a copy of this order, a copy of the notice of trial (Doc. 6), and a copy of our standing pretrial order (Doc. 7). 2