Opinion
22549-21
04-12-2024
GANIYU O. OBANIGBA & BUCKY OBASA, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Courtney D. Jones Judge.
Pending before the Court is petitioners' Motion for Continuance (Doc. 35). For the reasons discussed below, we will deny it.
On September 6, 2023, Herman L. Jimerson filed an Entry of Appearance as counsel for the petitioners (Doc. 21). On January 5, 2024, the Court issued a Notice of Trial and Standing Pretrial Order (Docs. 22, 23), scheduling the case for trial on April 29, 2024, in St. Louis, Missouri.
The Standing Pretrial Order requires that motions for summary judgment must be filed no later than 60 days before the first day of the trial session. It further requires that motions for continuance must be filed no later than 31 days before the first day of the trial session. And it requires that a pretrial memorandum must be filed by each party no later than 21 days before the first day of the trial session. Because the first day of the St. Louis trial session is April 29, 2024, the deadline for filing motions for summary judgment and continuance were February 29 and March 29, respectively. The deadline for filing a pretrial memorandum was April 8.
Rule 133 and the Standing Pretrial Order provide that continuances will be granted only in exceptional circumstances. Rule 133 also provides that conflicting engagements of counsel or employment of new counsel ordinarily will not be regarded as ground for continuance.
Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure.
On January 10, 2024, respondent timely filed a Motion for Partial Summary Judgment (Doc. 24). By Order dated January 12, 2024, the Court directed petitioners to respond to respondent's Motion for Partial Summary Judgment by February 2, 2024 (Doc. 25); they failed to do so. By Order dated February 26, 2024, the Court then directed petitioners to file a motion to withdraw or modify any or all of the matters previously deemed admitted (Doc. 27). The deadline for the motion to withdraw or modify was March 15, 2024; petitioners failed to file a response.
The Court's Order of February 26 stated that the Standing Pretrial Order remained in full force and effect. This meant that the original deadline for filing various motions and pretrial filings, including a motion for continuance and a pretrial memorandum, remained in effect. As noted above, the deadlines for filing a motion for continuance and pretrial memorandum were March 29 and April 8, respectively. On April 8, respondent timely filed a pretrial memorandum (Doc. 31). Petitioners failed to file a pretrial memorandum.
On April 9, 2024, petitioners filed an untimely Motion for Continuance. Petitioners did not file a motion for leave to file the motion for continuance out of time (as required by Rule 54(a)) nor did the Motion for Continuance state respondent's position (as required by Rule 50(a)). The Motion for Continuance states that Mr. Jimerson has conflicting engagements on the first day of this Court's trial session. Respondent filed a Notice of Objection to Motion for Continuance on April 10, 2024 (Doc. 35).
Mr. Jimerson entered his appearance in this case in September of 2023, giving him ample time to familiarize himself with the case prior to the Notice of Trial and Standing Pretrial Order issued in January of 2024. Even if his appearance had come later, Rule 133 provides that employment of new counsel ordinarily will not be regarded as ground for a continuance. Though the Motion for Continuance asserts that Mr. Jimerson has a conflicting engagement, Rule 133 provides that such conflicts will not be regarded as ground for a continuance.
In light of the untimeliness of the Motion for Continuance; petitioners' failure to file a motion to file out of time; failure to advise the Court of respondent's position; respondent's subsequent Notice of Objection, and the Court's concern about the lack of progress in this case caused by petitioners' failure to respond to orders of the Court and otherwise adhere to the Court's Standing Pretrial Order, it is
ORDERED that petitioners' Motion for Continuance (Doc. 32) is denied. Petitioners are advised that failure to appear at the calendar call at 10:00 AM on April 29, 2024, in the Thomas F. Eagleton U.S. Courthouse, 111 South 10th Street, Room 9.170, 9th Floor St. Louis, MO 63102, might result in the dismissal of this case. It is further
ORDERED that the Clerk of the Court shall serve a copy of this Order on petitioners at their address of record.