Medical Investment Trust v. U.S.

Full title: THE MEDICAL INVESTMENT TRUST, DJIEN SO AND LEONOR PAGTAKHAN-SO…

Court: United States District Court, E.D. Kentucky, Pikeville

Date published: Mar 15, 2001

CIVIL ACTION NO. 99-439 (E.D. Ky. Mar. 15, 2001)

Opinion

CIVIL ACTION NO. 99-439

March 15, 2001

JUDGMENT

JOSEPH M. HOOD, Judge

In accordance with the Memorandum Opinion and Order of even date and entered contemporaneously herewith,

IT IS HEREBY ORDERED:

(1) That this action be, and the same hereby is, DISMISSED AND STRICKEN FROM THE ACTIVE DOCKET.

(2) That all pending motions be, and the same hereby are, DENIED AS MOOT, SAVE Petitioners' pending motion for attorney fees [Record No. 23];

(3) That all scheduled proceedings be, and the same hereby are, CONTINUED GENERALLY.

(4) That this Order is FINAL AND APPEALABLE and THERE IS NO JUST CAUSE FOR DELAY.

ORDER

The United States has moved to dismiss this case for lack of jurisdiction [Record No. 18]. The petitioners have responded [Record No. 21]. The time for additional responsive pleadings has lapsed without further filings. Accordingly, this issue is ripe for review.

The petitioners' have indicated that it is appropriate to dismiss this case for lack of jurisdiction as the summonses at issue have been withdrawn [Record No. 22 at p. 1]. However, the petitioners ask that this case remain open for the limited purpose of determining whether or not the petitioners are entitled to attorney fees and costs. In addition, Petitioners have filed a motion for attorney fees and costs [Record No. 23]. The United States has indicated that said motion is premature as a final judgment has not been entered in this case [Record No. 25]. The United States asks for thirty days after final judgment is entered in which to file a response to the petitioners' motion at Record No. 23.

The petitioners' motion for attorney fees arises under 26 U.S.C. § 7430, which requires that the petitioners be the "prevailing party" in order to recover said attorney fees. Therefore, the petitioners' request for attorney fees cannot be ripe until final judgment, which creates grounds for the petitioners to assert that they are a "prevailing party" under the statute.

This Order will contain an attached final judgment and the Court will deem the petitioners' motion for attorney fees to be timely filed, granting the respondent thirty days from the entry of this Order to file a response to said motion. Accordingly,

IT IS ORDERED

(1) That the United States' motion to dismiss [Record No. 18] be, and the same hereby is, GRANTED;

(2) That this case be, and the same hereby is, DISMISSED WITHOUT PREJUDICE;

(3) That the United States' motion for an extension of time [Record No. 25] be, and the same hereby is GRANTED;

(4) That all pending motions, SAVE the petitioners' motion for attorney fees [Record No. 23] be, and the same hereby are, DENIED AS MOOT;

(5) That the United States has 30 (THIRTY) DAYS from the entry of this Order to RESPOND to the petitioners' motion for attorney fees.