Barker et al v, Internal Revenue Service et al

Filing 7

ORDER signed by Chief Judge Morrison C. England, Jr. on 8/2/2013 GRANTING 2 Ex Parte Application for Extansion of Time; ORDERING Defendants to answer or otherwise respond to Plaintiff's complaint by 8/27/2013. (Michel, G)

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KATHRYN KENEALLY
Assistant Attorney General

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ADAM R. SMART
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 683
Washington, D.C. 20044
202-307-6422 (v)
202-307-0054 (f)
[e-mail]

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Attorney for the IRS Defendants

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BENJAMIN B. WAGNER
United States Attorney
Eastern District of California
Of Counsel

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

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Randy K. Barker,
Case No. 2:13-cv-1517-MCE-CMK

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Plaintiff(s)/Appellant,
INITIAL EX PARTE REQUEST FOR
AN EXTENSION OF TIME TO
RESPOND TO THE PLAINTIFF’S
COMPLAINT AND ORDER

v.
INTERNAL REVENUE SERVICE, et al,
Defendant/Respondent

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JOHN and JANE DOES 1 through 25
_______________________________________
Defendants the Internal Revenue Service, former Commissioner Douglas Schulman,

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Special Agent Maria Martinez, and Special Agent Colleen Rowe – the IRS Defendants – through

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their attorney, respectfully moves the Court pursuant to Federal Rule of Civil Procedure

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6(b)(1)(A) and Local Rule 144 for an extension of time in which to serve an answer, motion, or

Ex Parte Request for Extension of Time

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other response to the Plaintiff’s verified complaint to and through August 27, 2103. This is the

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first extension requested by the IRS Defendants. Undersigned placed telephone calls to the

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number listed by plaintiff Randy K. Barker on his state court pleadings on July 15, 2013, July 18,

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2013 and July 25, 2013 to request a stipulation extending the time; however, despite leaving

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numerous messages with Mr. Barker, he has not returned any of those calls. (Smart Declaration)

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The grounds for this motion are as follows:

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1.

On May June 28, 2013, plaintiff Randy K. Barker filed a complaint entitled

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“VERIFIED COMPLAINT FOR TRESPASS: WRONGFUL DEATH” in the Superior Court of

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the State of California for Butte County, which action was assigned case number 2013-159908.

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On June 28, 2013, the IRS received notice of this action by way of a copy of a summons and

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complaint hand delivered to an IRS office located Chico, CA. The United States Attorney’s

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Office also received a copy of the complaint via U.S. Priority mail on July 1, 2013. (Smart

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Declaration) On July 25, 2013, the IRS Defendants removed the above-titled action to this Court

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by filing a Notice of Removal (Dkt. 1).

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2.

Pursuant to Federal Rule of Civil Procedure 81(c), the IRS Defendants’ answer in

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the above-captioned case is due August 1, 2013, seven days after the United States removed the

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state court action to this Court. The IRS defendants seek to extend their time to answer or

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otherwise move, until August 27, 2013, sixty days from the date the plaintiff hand delivered a

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copy of the summons and complaint to an IRS office.1

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The IRS Defendants explicitly reserve their right to challenge the sufficiency of service and/or
service of process by way of a motion to dismiss as plaintiff has thus far failed to properly effect
service pursuant to Federal Rule of Civil Procedure 4.

Ex Parte Request for Extension of Time

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3.

Under Federal Rule of Civil Procedure 6(b)(1)(A), “[w]hen an act may or must be

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done within a specified time, the court may, for good cause, extend the time . . . with our without

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motion or notice if the court acts, or if a request is made, before the original time or its extension

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expires.” The IRS Defendants’ motion is made before the time for their answer expires. The

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IRS Defendants request an extension of time to file their response to the complaint because they

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need additional time to investigate and to obtain the information and documents necessary to

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meaningfully respond to the complaint. (Smart Declaration) The IRS Defendants do not seek

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the extension for the purposes of delay. Accordingly, the IRS Defendants have established good

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cause for the requested extension.

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4.

No party will be prejudiced should the Court grant the request because the IRS

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Defendants will obtain no more time than it would otherwise receive under Fed. R. Civ. P.

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12(a)(2) & (3). Therefore, the IRS Defendants’ request for an enlargement of time is

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appropriate.

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WHEREFORE, the IRS Defendants request this Court grant their motion for an extension

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of time to respond and order that the IRS Defendants be given an extension of time to answer or

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otherwise move until August 27, 2013.

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Ex Parte Request for Extension of Time

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Dated this 25th day of July, 2013.

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Respectfully submitted,

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KATHRYN KENEALLY
Assistant Attorney General

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By:_/s/ Adam R. Smart______________
ADAM R. SMART
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 683
Washington, D.C. 20044
202-307-6422 (v)
202-307-0054 (f)
[e-mail]

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Attorney for the IRS Defendants
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BENJAMIN B. WAGNER
United States Attorney
Of Counsel

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ORDER

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Good cause appearing, Defendants’ Ex Parte Request for an Extension of Time to

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Respond to Plaintiff’s Complaint (ECF No. 2) is GRANTED. Defendants must file and serve an

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answer, motion, or other response to Plaintiff’s verified complaint no later than August 27, 2013.
IT IS SO ORDERED.
Dated: August 2, 2013

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Ex Parte Request for Extension of Time

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