Opinion
36721-21
04-03-2024
MICROSEMI CORPORATION & SUBSIDIARIES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Emin Toro Judge
The case at Docket No. 36721-21 is currently calendared for trial during the Court's October 21, 2024, San Francisco, California, special trial session. On March 11, 2024, the case at Docket No. 19571-23, was assigned to the undersigned judge.
On March 5, 2024, petitioner filed a Motion to Consolidate Docket Numbers 36721-21 and 19571-23, as well as a Motion to Continue. On March 13, 2024, respondent filed responses to both Motions. Petitioner subsequently replied.
On March 21, 2024, the Court held a conference call with the parties to discuss, among other things, petitioner's pending Motion to Consolidate and Motion to Continue. On March 25, 2024, the Court issued an Order (Doc. 272) observing that, "[i]n view of respondent's representations made during the call and petitioner's representation that it will not be ready to try the Tangible Property Allocation issue (as the parties have previously defined that term) in October, the Court would be inclined to continue trial of that issue for an appropriate time." The Order further observed that the Court would benefit from knowing respondent's views on certain questions.
On March 28, 2024, respondent filed a Response (Doc. 273) to the Court's March 25 Order. As relevant here, respondent proposes a shorter continuance than the one requested by petitioner. Footnote 2 of the Response states: "Attached as Exhibit A is a proposed pre-trial order identifying all deadlines to be modified by Respondent's proposed continuance date."
As we will describe, Exhibit A has the potential to confuse. Although the Response plainly indicates that Exhibit A is a proposed pre-trial order, the Exhibit itself contains no such indication. Instead, it contains a "Served 01/18/23" notation on the first page and the undersigned's signature on the last page. As far as the Court can tell, respondent appears to have downloaded the Order served on January 18, 2023, and to have made changes to (among others) the introductory paragraphs as well as the Ordered paragraph. These changes are not marked, however, creating the possibility that an inattentive reader might be left with the impression that Exhibit A reflects an order already issued by the Court, rather than a proposed order proffered by a party.
While the Court understands that respondent may have been attempting to make the Court's job easier by providing the actual text of a proposed order, the Court is concerned by the possibility for confusion created by (among others) the additional markings, such as the service date and the Court's signature. To avoid confusion in the record, the Court will strike the Response and Exhibit A. Respondent must file a new response and a new exhibit that addresses the concerns noted above.
In addition, the Court would benefit from hearing petitioner's views concerning the course respondent proposes.
Upon due consideration, it is hereby
ORDERED that, respondent's Response to Court Order Dated March 25, 2024, is hereby stricken from the record in this case. It is further
ORDERED that, on or before April 8, 2024, respondent shall file a response to this Order as noted above. It is further
ORDERED that, on or before April 15, 2024, petitioner shall file a reply to respondent's response setting out its views regarding respondent's position concerning further proceedings.