Opinion
03 Civ. 6020 (LAK), (2d Cir. No. 04-1597-cv).
January 5, 2007
ORDER
Defendants, by letter dated December 27, 2006, have drawn to the Court's attention an order by the Court of Appeals, filed October 6, 2004, that contemplates disposition by this Court of a Fed.R.App.P. 10 statement. No such statement previously had been filed in this Court. As defendants have provided this Court with a copy of plaintiff's "FRAP Rule 10(c) Statement" that was submitted to the Court of Appeals, and of their response to it, the Court hereby settles the record in accordance with Fed.R.App.P. 10(c).
The principal dispute relates to plaintiff's contention that, contrary to this Court's order, dated December 9, 2003, plaintiff's counsel did not tell the district court, at an unrecorded conference held on November 7, 2003, that he had brought this case "in the hope that the district court would revive failed settlement negotiations." The Court reiterates its observation that plaintiff's counsel said exactly that, probably in precisely those words but at least in substance. The statement was quite striking and directly prompted the observation in the Court's order.
Plaintiff evidently takes issue also with so much of the order as dismissed the action for insufficiency of service of process. He claims that a statement in the government's moving brief in this Court to the effect that plaintiff never served the Clerk of the Tax Court is "utterly false."
No proof of service on the Clerk of the Tax Court appears on the district court docket sheet. In addition, plaintiff defaulted on the government's motion to dismiss in this Court and thus failed to controvert the government's assertion that the Clerk of the Tax Court was not served.
The balance of plaintiff's statement consists of argument and material outside the record. As it does not purport to state anything that occurred before the Court, no further statement is required.
The Clerk is directed to send a copy of this order to the Clerk of the Court of Appeals.
SO ORDERED.