Sehr v. United States of America et al

Filing 11

STIPULATION AND ORDER re 9 STIPULATION STAYING CASE filed by Robert J. Sehr, Jr. Status Report due by 9/9/2014. Status Conference set for 9/16/2014 10:00 AM in Courtroom 4, 17th Floor, San Francisco before Hon. Vince Chhabria. Signed by Judge Vince Chhabria on 6/11/2014. (knm, COURT STAFF) (Filed on 6/12/2014)

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GLYNN & FINLEY, LLP
CLEMENT L. GLYNN (Bar No. 57117)
JONATHAN A. ELDREDGE (Bar No. 238559)
One Walnut Creek Center
100 Pringle Avenue, Suite 500
Walnut Creek, CA 94596
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
Robert J. Sehr, Jr., as successor trustee of the
Weller Trust

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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)
ROBERT J. SEHR, JR. as successor trustee )
of the WELLER TRUST,
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Plaintiff,
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vs.
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BRYAN WELLER, an individual; UNITED )
STATES OF AMERICA; STATE OF
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CALIFORNIA EMPLOYMENT
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DEVELOPMENT DEPARTMENT; ALL
)
PERSONS UNKNOWN CLAIMING ANY )
INTEREST IN THE PROPERTY, and
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DOES 1 through 50, inclusive,
)
)
Defendants.
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)

Case No. CV 14-02100 VC
STIPULATION AND [PROPOSED]
ORDER STAYING CASE
AS MODIFIED

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WHEREAS, on April 1, 2014, this partition case was filed in the probate department 1

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(Judge Sugiyama) of the Superior Court for the County of Contra Costa to partition a commercial

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property located at 254 Rose St., Danville, California that is owned by Plaintiff and Defendant

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Bryan Weller with federal tax liens on the property held by Defendant United State of America;

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Plaintiff received special permission from Judge Sugiyama to file in the probate department
instead of the civil department as there were related and consolidated cases already pending
before Judge Sugiyama.
-1STIPULATION AND [PROPOSED] ORDER STAYING CASE

WHEREAS, on May 7, 2014, this case was removed to this Court by Defendant United

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State of America;

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WHEREAS, before removal, this case was consolidated with six additional cases in the

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probate department also pending before Judge Sugiyama, including a wills/estate action (In the

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Matter of the Estate of Beverly J. Weller, Case No. MSP11-00814), a trust action (In the Matter

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of the Weller Trust, Case No. MSP11-00406), a fraud/fiduciary duties action (Weller v. Sehr,

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Case No. C12-01649), a quiet title action (related to the commercial property at issue here)

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(Weller v. Sehr, Case No. MSC12-02106), a nuisance action (Sehr v. Weller, Case No. MSL13-

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01120) and a partition action (related to a residential property owned by Plaintiff and Defendant

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Bryan Weller) (Sehr v. Weller, Case No. MSC12-02336) (collectively the “Actions”); 2

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WHEREAS, Defendant Bryan Weller is or was a party to all of the Actions and

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Defendant United States of America is a party to the partition action related to the residential

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property; 3
WHEREAS, the federal tax liens at issue in this case are also at issue in the partition

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action related to the residential property;

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WHEREAS, an interlocutory judgment has been issued in the partition action related to

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the residential property, which has a provision relating to the payment of the federal tax liens, a

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referee has been appointed to sell the residential property and offers to purchase the residential

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property have been received;

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WHEREAS, it is anticipated that the residential property will be sold in the next few

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months, and the proceeds of the sale will be used to pay off debts on the house, including the

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federal tax liens at issue in this case;
WHEREAS, Plaintiff disputes that this Court has subject matter jurisdiction over this

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case as Plaintiff contends that the property at issue is also at issue in previously filed state court

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The property at issue in this action (254 Rose St., Danville, California) is at issue in the
wills/estate action, the trust action, the fraud/fiduciary duties action, the quiet title action and the
nuisance action.
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Defendant State of California Employment Development Department disclaimed in the state
court all rights in the property and is no longer a party to this action
-2STIPULATION AND [PROPOSED] ORDER STAYING CASE

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actions, including multiple probate actions and a quiet title action, that the United States of

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America has waived the right to remove due to its litigating its federal tax liens in state court and

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that abstention principles require that the case be remanded to state court;

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WHEREAS, the parties believe that rather than engaging in motion practice to determine

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whether this case should be remanded to the state court and engaging in preliminary case matters

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(e.g., initial disclosures, initial case management conferences), the case should be stayed so that

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the federal tax liens can be resolved in the state court partition action, following which Defendant

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United States of America will likely be dismissed from both the state court case as well as the

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above-captioned case so that this case can be remanded back to state court;

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THEREFORE, subject to the Court’s order so providing, the parties stipulate that this

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case shall be stayed for 90 days from the date of the Court’s Order. If a dismissal of the United

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States of America is not filed within 75 days following entry of the Court’s Order, Plaintiff shall

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notify the Court of the status of the underlying partition case so that the Court may determine

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how best to proceed.

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Dated: June 10, 2014
GLYNN & FINLEY, LLP

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By
/s/ Jonathan A. Eldredge
Attorneys for Plaintiff
Robert J. Sehr, Jr., as successor trustee
of the Weller Trust

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Dated: June __, 2014
BUCHMAN PROVINE BROTHERS
SMITH LLP

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By
Attorneys for Defendant Bryan Weller

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Dated: June 10, 2014
By
/s/ Cynthia Stier
CYNTHIA STIER
Assistant United States Attorney
Tax Division
Attorney for Defendant United States of
America
-3STIPULATION AND [PROPOSED] ORDER STAYING CASE

ORDER AS MODIFIED

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The Court ORDERS that this case shall be stayed for 90 days from the date of the Court’s

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Order. If a dismissal of the United States of America is not filed within 75 days following entry

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of the Court’s Order, Plaintiff shall notify the Court of the status of the underlying partition case

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so that the Court may determine how best to proceed. A Status Conference is set for

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September 16, 2014, at 10:00 a.m. A Status Conference statement shall
be due no later than September 9, 2014.
IT IS SO ORDERED.

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The Honorable Vince Chhabria
RDERE
S SO O Court Judge
United States DistrictFIED
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UNIT
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Dated: June __, 2014

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-4STIPULATION AND [PROPOSED] ORDER STAYING CASE

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ATTESTATION PURSUANT TO GENERAL ORDER NO. 45

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I, Jonathan A. Eldredge, attest that concurrence in the filing of this document has been

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obtained from any signatories indicated by a “conformed” signature (/s/) within this e-filed

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document.

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I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

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Dated: June 10, 2014

GLYNN & FINLEY, LLP
/s/ Jonathan A. Eldredge
Jonathan A. Eldredge
Attorneys for Plaintiff

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-5STIPULATION AND [PROPOSED] ORDER STAYING CASE