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Edwards v. Astrue

United States District Court, E.D. California
Feb 10, 2010
1:09cv1002 DLB (E.D. Cal. Feb. 10, 2010)

Opinion

1:09cv1002 DLB.

February 10, 2010


ORDER GRANTING EXTENSION OF TIME (Document 13)


On February 9, 2010, the parties filed a stipulation and proposed order to allow Plaintiff an extension of time to file her opening brief. The parties' request is GRANTED. Plaintiff's opening brief SHALL be filed on or before March 7, 2010. Defendant's opposition, if any, shall be filed on or before April 6, 2010. Plaintiff's reply shall be filed on or before April 21, 2010.

IT IS SO ORDERED. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ORDER VACATING SCHEDULING CONFERENCE ORDER DISMISSING RESPONDENT'S FILING AS MOOT ORDER DIRECTING CLERK TO CLOSE CASE

UNITED STATES OF AMERICA and ) 1:09-cv-00961-AWI-GSA MARILYN COLLINS, Revenue ) Officer, Internal Revenue Service, ) ) Petitioners, ) ) v. ) ) SHERI L. PROVOST, ) ) Respondent. ) __________________________________ ) On June 1, 2009, Petitioners United States of America and Marilyn Collins, Revenue Officer, Internal Revenue Service, filed a Petition to Enforce Internal Revenue Service Summons. (Doc. 1.)

On June 11, 2009, the Magistrate Judge issued an Order to Show Cause Re Enforcement of the Internal Revenue Service Summons. (Doc. 5.)

A show cause hearing was held on November 13, 2009, wherein all parties appeared. (Doc. 19.)

Thereafter, on November 16, 2009, the Magistrate Judge issued Findings and Recommendations recommending that the petition be granted and that Respondent Sheri L. Provost be ordered to appear before Revenue Officer Collins. (Doc. 20.)

On December 21, 2009, this Court issued an Order Adopting the Findings and Recommendations, wherein Respondent was ordered to appear before Revenue Officer Collins on January 13, 2010, at 10:00 a.m., to provide testimony and produce documents. (Doc. 22.)

On February 1, 2010, Respondent filed a document entitled "Notice of Declaratory Judgment and Record," wherein she lists herself as "Secured Party Creditor, Counter Claimant, [and] Affiant." Respondent seeks an order declaring that she is: (1) "the only party who has put any value into SHERI LYNNE PROVOST;" (2) "the only party entitled to any equity attached to SHERI LYNNE PROVOST;" (3) "entitled to any interpleaded funds related to SHERI LYNNE PROVOST;" and that (4) Petitioners "be barred from any collection of any alleged debts from Sheri Lynne Provost, relating to SHERI LYNNE PROVOST. . . ." (Doc. 25 at 10-11.)

On February 9, 2010, Petitioners filed a notice of compliance indicating that Respondent has complied with the tax summons. As a result, Petitioners request the Court close the case and take the scheduling conference off calendar. (Doc. 27.)

That same date, Petitioners filed an opposition to Respondent's Notice for Declaratory Judgment and Record. More particularly, Petitioners oppose Respondent's notice on the basis it was not properly noticed, that Petitioners have requested the Court close the matter and therefore any relief requested by Respondent is moot, and that declaratory judgment is inappropriate to the instant proceeding. (Doc. 28.)

Respondent having complied with the IRS summons, Petitioners' enforcement action is appropriately closed, and Respondent's request for declaratory judgment is moot. Accordingly, it is HEREBY ORDERED that:

1. The scheduling conference set for March 16, 2010, at 9:30 a.m., before Magistrate Judge Gary S. Austin be VACATED;
2. The notice filed by Respondent on February 1, 2010, be dismissed as MOOT in light of Respondent's compliance with the summons that was the subject of this action and Petitioners' request to close the case; and
3. The Clerk of the Court is DIRECTED to close this case in its entirety.

IT IS SO ORDERED. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MELVIN DIAS and EVELYN DIAS, 1:09-CV-524 AWI DLB Plaintiffs, ORDER RESETTING v. HEARING TO MARCH 1, 2010 NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, and DOES 1 through 10, Defendants.

) ) ) ) ) ) ) ) ) Currently pending before this Court is Defendant's motion for summary judgment. The matter is set to be heard on February 16, 2010. The court has determined that it is necessary to reschedule the hearing on this matter. The Court will reset the hearing to March 1, 2010 at 1:30 p.m.

Additionally, Defendant in reply states that a portion of Dias's opposition declaration is a "sham." Specifically, that Dias's deposition testimony that Dias believed that Harvey Stein was the Nationwide agent contradicts Dias's declaration (Dias declares that he believed Pena was the Nationwide agent). The Court will give Plaintiff an opportunity to reply to Defendants' objection.

Accordingly, IT IS HEREBY ORDERED that:

Plaintiff should also discuss what impact, if any, the deposition testimony has on his opposition, in addition to whether the declaration is a "sham."

1. The February 16, 2010, hearing is VACATED; 2. Plaintiff shall respond in writing to the objection that a portion of Dias's declaration is a sham on or by February 18, 2010; 3. Defendant may file a response to Plaintiff's additional briefing on or by 3:00 p.m. on February 23, 2010; and 4. The hearing on Defendant's motion for summary judgment is RESET to March 1, 2010. IT IS SO ORDERED.


Summaries of

Edwards v. Astrue

United States District Court, E.D. California
Feb 10, 2010
1:09cv1002 DLB (E.D. Cal. Feb. 10, 2010)
Case details for

Edwards v. Astrue

Case Details

Full title:CLIFFORD L. EDWARDS, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of…

Court:United States District Court, E.D. California

Date published: Feb 10, 2010

Citations

1:09cv1002 DLB (E.D. Cal. Feb. 10, 2010)