Opinion
Civil No. 2:11-CV-01210-JCM-LRL
10-11-2011
COLIN C. SAMPSON Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 683 Ben Franklin Station Noah G. Allison Cheryl C. Bradford Martin & Allison, Ltd. Attorneys for Plaintiff Thor Construction, Inc.
United States Attorney
District of Nevada
Lloyd D. George Federal Courthouse
COLIN C. SAMPSON
Trial Attorney, Tax Division U.S. Department of Justice
P.O. Box 683
Ben Franklin Station
UNITED STATES' EX PARTE MOTION
FOR EXTENSION OF TIME TO
ANSWER OR OTHERWISE RESPOND
TO COMPLAINT (FIRST REQUEST)
On behalf of Defendant, the United States of America (Hereafter "United States"), by and through its undersigned, by and through its undersigned counsel, respectfully submits this ex parte Motion for an Extension of Time, until Friday, November 18, 2011, in which to file an answer or otherwise respond to the Complaint filed by Plaintiff Thor Construction, Inc., in the above-captioned case. In support of this motion, the United States avers as follows:
While plaintiff has named "U.S Department of Treasury - Internal Revenue Service" as a defendant in this matter, it is well established that to the extent the relief requested in a complaint, if granted, would result in a judgment that would expend itself on the public treasury or restrain the federal government from action or interfere with public administration, the suit constitutes an action against the United States. Dugan v. Rank, 372 U.S. 609, 620 (1962) citing Land v. Dollar, 330 U.S. 731 (1947). Consequently, the instant action is actually one against the United States because the relief sought would expend itself on the public treasury and restrain the federal government from action.
1. On September 26, 2011, Plaintiff filed his Complaint in the above-captioned matter. A summons was issued to the United States on the same day.
2. Fed. R. Civ. P. 12(a) provides that the United States shall serve an answer to a complaint within sixty days after the United States Attorney is served with the pleading asserting the claim(s). The United States Attorney for the District of Nevada was served with the complaint in this case on August 10, 2011. Therefore, the United States' response is currently due on October 11, 2011.
October 9, 2011, a Sunday, is 60 days from the date the Summons and Complaint were served on the United States Attorney for the District of Nevada. Further, Monday, October 11, 2011, is a federal holiday. See Fed. R. Civ. P. 6(a)(1)(C).
3. The United States Department of Justice, Tax Division, first received a copy of the Complaint on August 17, 2011. The undersigned counsel has requested the IRS to promptly forward its files and views concerning this matter to the Department. The undersigned counsel received authorization to defend this matter via fax on September 30, 2011, and received the administrative files in this matter on Tuesday, October 4, 2011.
4. On Thursday, October 6, 2011, undersigned counsel for the United States contacted counsel for Plaintiff regarding an extension of time for the United States to answer or otherwise defend in this matter. Counsel for Plaintiff agreed to an extension of sixty days.
5. Defendant Maximum Enterprises, LLC, has not answered in this matter.
6. In light of the fact that the Department of Justice only recently obtained the IRS files regarding this case, and in light of undersigned counsel's upcoming trial in the Eastern District of California which is scheduled to begin on October 18, 2011, and estimated to require ten trial days, the United States respectfully requests a sixty day extension of the existing response deadline, or until Friday, December 9, 2011, in which to file an answer to the Complaint in this case or otherwise respond.
7. This motion is not made for the purpose of delay, but only to allow the Department of Justice, to allow the United States to respond fully and accurately to the complaint in this case.
8. This is the first request for an extension of time to answer or otherwise respond the Complaint, and no previous extensions have been granted in any matter in this case.
WHEREFORE, the United States respectfully moves the Court to issue an order granting the United States a sixty (60) day extension of time, until Friday, December 9, 2011, to answer or otherwise respond to the Complaint and granting any other relief to which the United States may be entitled. A proposed Order is submitted herewith.
Respectfully submitted this 7th day of October, 2011.
DANIEL G. BOGDEN
United States Attorney
COLIN C. SAMPSON
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 683
Ben Franklin Station
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that service of the foregoing UNITED STATES' MOTION FOR EXTENSION OF TIME TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT (FIRST REQUEST) and [PROPOSED] ORDER have been made this 7th day of October, 2011, by depositing copies upon the parties hereto in the United States mail in a postage prepaid envelope addressed to the following:
Noah G. Allison
Cheryl C. Bradford
Martin & Allison, Ltd.
Attorneys for Plaintiff Thor Construction, Inc.
Maximum Enterprises, LLC
COLIN C. SAMPSON
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 683
Ben Franklin Station
DANIEL G. BOGDEN
United States Attorney
District of Nevada
Lloyd D. George Federal Courthouse
COLIN C. SAMPSON
Trial Attorney, Tax Division
U.S. Department of Justice
Ben Franklin Station
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEVADA
THOR CONSTRUCTION, INC., a Minnesota corporation, Plaintiff,
v.
U.S. DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE; MAXIMUM
ENTERPRISES, LLC, a Nevada Limited Liability
Company, Defendants.
Civil No. 2:11-CV-01210-JCM-LRL
[PROPOSED] ORDER GRANTING
UNITED STATES' MOTION FOR
EXTENSION OF TIME TO FILE
RESPONSIVE PLEADING
Before the Court is the United States's Ex Parte Motion to Extend Time to Answer or Otherwise Respond to Complaint. Upon consideration of the stipulation, and for good cause shown, it is hereby ORDERED that the United States' Motion is granted. The United States shall have an additional sixty (60) days, until December 9, 2011, to file a response in this matter.
IT IS SO ORDERED.
________________________________
UNITED STATES MAGISTRATE JUDGE
Submitted by:
DANIEL G. BOGDEN
United States Attorney
COLIN C. SAMPSON
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 683
Ben Franklin Station