Gray v. United States America

Filing 21

STIPULATION AND ORDER Discovery due by 1/5/2012. Jury Selection set for 3/5/2012 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. Jury Trial set for 3/5/2012 09:30 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. Motion Hearing set for 1/13/2012 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. Pretrial Conference set for 2/24/2012 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti.. Signed by Judge Samuel Conti on 9/8/11. (tdm, COURT STAFF) (Filed on 9/9/2011)

1
2
3

Andrea D. McGary, CA SBN 215703
THE McGARY FIRM
Attorneys At Law
505 Montgomery Street, 11th FL
San Francisco, CA 94111
Email: [e-mail]

4
5
6

Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff and Counter-Defendant
Steven A. Gray

7
8
9
10
11
12
13
14

MELINDA HAAG (CABN 132612)
United States Attorney
THOMAS MOORE (ALBN 4305-O78T)
Assistant United States Attorney
Chief, Tax Division
9th Floor Federal Building
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102
Telephone: [phone]
Fax: [phone]
Attorneys for the Defendant / Counter-Claimant
United States of America

15

Jeffrey A. Titus, (CA SBN 114148)
P.O. Box 6772
Santa Rosa, CA 95406
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorney For Counter-Defendant
Manuel D. Martinez

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT CALIFORNIA

17

SAN FRANCISCO DIVISION

18
19

STEVEN A. GRAY,

Case No. CV 11-0680 SC

20

Plaintiff ,
vs.
UNITED STATES OF AMERICA; and
DOES 1 through 30, inclusive.

STIPULATION & [PROPOSED]
ORDER TO CONTINUE PRETRIAL
AND TRIAL DEADLINES

21
22
23
24
25
26
27

Defendant.
UNITED STATES OF AMERICA,
Counter-Claimant,
vs.
MANUEL MARTINEZ and STEVEN A.
GRAY

Case filed: February 15, 2011

Counter-Defendants

28
STIPULATION & ORDER TO CONTINUE PRETRIAL & TRIAL DEADLINES

1

IT IS HEREBY STIPULATED by and between Plaintiff/ Counter-Defendant STEVEN A.

2

GRAY (sometimes hereinafter “Plaintiff GRAY”), Defendant/Counter-Claimant UNITED

3

STATES OF AMERICA (sometimes hereinafter “Defendant USA”), and Counter-Defendant

4

MANUEL D. MARTINEZ (sometimes hereinafter “Counter-Defendant MARTINEZ”) by and

5

through their attorneys of record, that GOOD CAUSE exists and the parties request that the Court

6

continue the pretrial and trial deadlines based on the following:

7

1. The suit involves liability for the Trust Fund Recovery Penalty for quarters ending

8

March 31, 2007, September 30, 2007, December 31, 2007, March 31, 2008, and June 2008 as to

9

federal employment taxes owed by Ace Roofing, Inc., a California corporation owned by Manuel

10
11

Martinez.
2. Plaintiff/ Counter-Defendant GRAY disputes allegations that he was a responsible

12

officer of Ace Roofing, Inc. and allegations that he willfully failed to collect, account for or turn

13

over withholding and F.I.C.A. taxes with respect to Ace Roofing’s employees for said periods.

14

Mr. GRAY asserts that he was not a “Responsible Person” nor was he “Willful” within the

15

meaning of 26 U.S.C § 6672 and the applicable court cases there under, nor under any other

16

federal law provision. Counter-Defendant MARTINEZ seeks a determination that he is not liable

17

as a “responsible person” under the Internal Revenue Code Section 6672 for payment of taxes or

18

penalties owed by Ace Roofing, Inc.

19

3. Plaintiff GRAY has filed a Certification of Interested Entities or Persons as follows:

20
21
22
23
24
25
26

Name
ACE ROOFING, INC., a California
corporation
Agent For Service Process – Manuel D.
Martinez
MANUEL D. MARTINEZ
9065 Lakewood Drive
Windsor, CA 95492
MADELINE M. MARTINEZ
9065 Lakewood Drive
Windsor, CA 95492

Connection or Interest
Principal debtor failing to tender
federal employment taxes due to
Defendant United States of America
Principal debtor failing to tender
federal employment taxes due to
Defendant United States of America
Spouse of Principal debtor failing to
tender federal employment taxes
due to Defendant United States of
America and transferee of assets
belonging to MANUEL MARTINEZ
AND ACE ROOFING, INC.

27
28
2

STIPULATION & ORDER TO CONTINUE PRETRIAL & TRIAL DEADLINES

1
2

4. Counter-Defendant MARTINEZ has filed a Certification of Interested Entities or
Persons as follows:

3
Name

4
5

Interest

7

ACE ROOFING, INC., a California
corporation
MADELINE M. MARTINEZ
9065 Lakewood Drive
Windsor, CA 95492

8

5. Pursuant to Federal Rule of Civil Procedure 16(b)(4), good cause exist for the Court to

6

9
10

Principal liable for underlying tax.
Spouse MANUEL MARTINEZ

modify the July 22, 2011 Status Conference Order Setting Times For Compliance With Certain
Rules of Court.

11

6. At the time of the Initial Status Conference, the parties were engaged in settlement

12

negotiations and expected that this matter would be resolved via settlement. Such expectation

13

was disclosed on the record to the Honorable Judge Conti.
7. Although the parties agreed to early neutral evaluation in the joint case management

14
15

statement filed herein on July 12, 2011, no mediation or other alternative dispute resolution

16

orders have been issued. On July 22, 2011, expedited trial and trial related deadlines were set

17

based on the Court’s and the named parties’ settlement expectations and belief that this case could

18

be handled on an expedited basis with streamlined procedures assuming availability of pertinent

19

IRS officers and employees for deposition and other discovery responses.
8. Settlement: Settlement negotiations have stalled and the parties have resumed the

20
21

discovery process. This case can no longer be handled on an expedited basis with streamlined

22

procedures for additional reasons discussed herein above and below. The expected length of trial

23

in this matter is four (4) days.
9. Joinder of Parties & Amendment To Pleadings: Plaintiff contends that not all

24
25

necessary and indispensible parties have been joined.1
10. Counter-Defendant MANUEL MARTINEZ did not appear in the above captioned

26
27

1

Internal Revenue Code Section 3505 provides for the liability of third parties paying or providing
for wages. See also Plaintiff Gray’s Complaint 5:19-9:22.

28
3
STIPULATION & ORDER TO CONTINUE PRETRIAL & TRIAL DEADLINES

1

matter until June 20, 2011 and the expedited calendar does not provide sufficient time to prepare

2

for trial.

3
4

11. Early Neutral Evaluation Request: Plaintiff requests referral to mediation in these
matters.

5

12. The parties are mindful of and respectful of the Court’s July 22, 2011 Status

6

Conference Order Setting Times For Compliance With Certain Rules of Court (“Status

7

Conference Order”) but continuing the discovery cut-off and pretrial deadlines is necessary for

8

effective completion of discovery, participation in early neutral evaluation, and preparation for

9

trial.

10

13. Based on the foregoing, the parties respectfully request that this Court 1) modify its

11

July 22, 2011 Status Conference Order, 2) continue the current discovery cut-off and all pre-trial

12

and trial related dates for at least ninety (90) days including but not limited to the dates requested

13

below, and 3) issue an order directing the parties to mediation:

14
15
16
17
18

Discovery Cut-Off
Motion Hearing CutOff
Pre-Trial Conference
Trial
Dated: September 2, 2011

Current Deadline
October 5, 2011
October 21, 2011

Proposed Deadline
January 4, 2012
January 20, 2012

November 29, 2011
December 5, 2011

February 28, 2012
March 5, 2012

The McGary Firm

19
By:
20
21

/s/ Andrea D. McGary
Andrea D. McGary, Esq.
Attorneys for Plaintiff/Counter-Defendant
STEVEN A. GRAY

22
23

Dated: September 2, 2011

United States Attorney Office,
Tax Division

24
25
26

By: /s/ Blake Stamm
Blake Stamm
Assistant United States Attorney
Tax Division

27

Attorneys for Defendant/Counter-Claimant
UNITED STATES OF AMERICA

28
4

STIPULATION & ORDER TO CONTINUE PRETRIAL & TRIAL DEADLINES

1

Dated: September 2, 2011

Jeffrey A. Titus, Attorney At Law

2
3

By:

4

/s/ Jeffrey A. Titus
Jeffrey A. Titus, Esq.
Attorneys for Counter-Defendant
MANUEL D. MARTINEZ

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5

STIPULATION & ORDER TO CONTINUE PRETRIAL & TRIAL DEADLINES

1

ORDER

2

Upon consideration of the parties’ Stipulation And [Proposed] Order To Continue

3
4

Pretrial And Trial Deadlines, and good cause appearing therefor,
IT IS HEREBY ORDERED that the pretrial and trial deadlines be continued as follows:

5
Previous Deadline

6
7
8
9
10
11

Revised Deadline

Mediation/Early Neutral
Evaluation
Discovery Cut-Off

October 5, 2011

January 5, 2012

Motion Hearing Cut-Off

October 21, 2011

January 13, 2012

Pre-Trial Conference

November 29, 2011

February 24, 2012

Trial

December 5, 2011

March 5. 2012

12
13
14

D
RDERE
IS SO O
IT
Honorable Samuel Conti

18

R NIA

S

8
Dated: September ___, 2011

NO

United States DistrictelCourt Judge
Conti
Samu
LI

H

ER

20

FO

Judge

RT

19

A

17

S DISTRICT
TE
C
TA

RT
U
O

16

IT IS SO ORDERED.
UNIT
ED

15

N

F
D IS T IC T O
R

21
22
23
24
25
26
27
28
i
STIPULATION & ORDER TO CONTINUE PRETRIAL & TRIAL DEADLINES

C