Opinion
12031-20L
01-21-2022
Marvin L. Delossantos & Jennifer A. Delossantos Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson, Judge.
This case was scheduled for trial at a session beginning October 21, 2021. On September 1, 2021, the Commissioner filed a motion (Doc. 10) to dismiss this case for lack of prosecution, asking the Court to enter a decision sustaining the filing of a proposed levy to collect the Delossantos's unpaid income tax liability for 2014. In the motion, the Commissioner described his difficulty in obtaining documents and information that he had requested from petitioners, and alleged that they had been unresponsive in pretrial preparation. In our order of September 15, 2021 (Doc. 12), we explained:
In this Court, a petitioner has the duty, as part of properly "prosecuting" his case, to cooperate and communicate with his opponent (counsel for the Commissioner) in order to prepare his case for trial (and so that the parties can resolve among themselves any issues that can be resolved without the Court's involvement). A petitioner's failure to fulfill this duty can result in dismissal of the case "for failure ... properly to prosecute", pursuant to Rule 123(b). Our standing pretrial order (Doc. 5) served in this case on May 5, 2021, stated: "The parties must begin discussing settlement and/or preparation of a stipulation of facts (facts on which the parties agree) as soon as possible.... If a party has trouble communicating with another party or complying with this Order, that party should tell the Judge right away ...."
The Commissioner so advised the Court by his motion to dismiss. If the facts are as the Commissioner alleges, and if the Commissioner's motion to dismiss is granted, it will have the effect of sustaining the proposed collection (by levy) of the Delossantos's unpaid tax liability for 2014.
Petitioners filed a response (Doc. 11) and a motion for a continuance (Doc. 13) that alleged an unexplained "medical emergency". Our order of September 29, 2021 (Doc. 15), stated:
Despite the lack of detail to justify the continuance, the Commissioner has stated (in response to a telephone inquiry by chambers staff) that he does not object to the continuance. It is therefore
ORDERED that the motion is granted, that this case is continued, and that this case is stricken from the calendar of, and will not be called at, the Court's session beginning October 4, 2021. However, it is further
ORDERED that the undersigned judge retains jurisdiction over this case, and it is further
ORDERED that the motion to dismiss for failure to prosecute remains pending. It is further
ORDERED that, no later than November 29, 2021, and every 60 days thereafter, the parties shall file a joint status report (or, if that is not expedient, then separate reports) that shall include their recommendations as to further proceedings to bring this case to a prompt conclusion.
Petitioners have made no filings in compliance with that order. The Commissioner has filed status reports stating, in sum, that petitioners' only communications have been to the effect that they want the case to "move forward". The Commissioner stated on November 14, 2021 (Doc. 17), that "this case may be resolved summarily [on its merits] without the need for a trial, and stated on January 20, 2022 (Doc, 18), that the Court could continue to consider the motion to dismiss for failure to properly prosecute.
We will order more filings. Petitioners should note that, to prevail over any motion that the Commissioner renews or files, it will be insufficient to simply assert that they want the case to move forward. Rather, they must fairly address the substance of any motion filed. If they have any question on how to proceed, they should promptly initiate a telephone conference with the Court by telephoning the Chambers Administrator (202-521-0850) and requesting a telephone conference with the judge and respondent's counsel.
It is
ORDERED that, no later than February 28, 2022, respondent shall file any supplement that he wishes to file in support of his motion to dismiss for failure to properly prosecute. It is further
ORDERED that, no later than February 28, 2022, respondent shall file any motion for summary judgment that he wishes to file in this case. It is further
ORDERED that before granting any such motion filed by the Commissioner, the Court will order petitioners to file a response.