Thor Construction,Inc. v. Internal Revenue Service et al

Filing 13

ORDER granting 11 Motion to Extend Deadline. Defendants to respond to Complaint by 12/9/2011. Signed by Magistrate Judge Carl W. Hoffman on 10/11/11. (Copies have been distributed pursuant to the NEF - ECS)

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DANIEL G. BOGDEN
United States Attorney
District of Nevada
Lloyd D. George Federal Courthouse
333 Las Vegas Boulevard, South
Suite 5000
Las Vegas, Nevada 89101
[phone]

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COLIN C. SAMPSON
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 683
Ben Franklin Station
Washington, D.C. 20044-0683
Ph: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]

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IN THE UNITED STATES DISTRICT COURT FOR THE
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DISTRICT OF NEVADA
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THOR CONSTRUCTION, INC., a Minnesota
corporation,

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Plaintiff,
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v.
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U.S. DEPARTMENT OF TREASURY)
INTERNAL REVENUE SERVICE; MAXIMUM )
ENTERPRISES, LLC, a Nevada Limited Liability )
Company,
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Defendants.
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)

Civil No. 2:11-CV-01210-JCM-LRL

UNITED STATES’ EX PARTE MOTION
FOR EXTENSION OF TIME TO
ANSWER OR OTHERWISE RESPOND
TO COMPLAINT (FIRST REQUEST)

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On behalf of Defendant, the United States of America1 (Hereafter “United States”), by and

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through its undersigned, by and through its undersigned counsel, respectfully submits this ex parte

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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.

Case 2:11-cv-01210-JCM -CWH Document 11

Filed 10/07/11 Page 2 of 4

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Motion for an Extension of Time, until Friday, November 18, 2011, in which to file an answer or

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otherwise respond to the Complaint filed by Plaintiff Thor Construction, Inc., in the above-captioned

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case. In support of this motion, the United States avers as follows:

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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

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within sixty days after the United States Attorney is served with the pleading asserting the claim(s). The

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United States Attorney for the District of Nevada was served with the complaint in this case on August 10,

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2011. Therefore, the United States’ response is currently due on October 11, 2011.2

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3.

The United States Department of Justice, Tax Division, first received a copy of the Complaint

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on August 17, 2011. The undersigned counsel has requested the IRS to promptly forward its files and views

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concerning this matter to the Department. The undersigned counsel received authorization to defend this

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matter via fax on September 30, 2011, and received the administrative files in this matter on Tuesday,

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October 4, 2011.

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4.

On Thursday, October 6, 2011, undersigned counsel for the United States contacted counsel

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for Plaintiff regarding an extension of time for the United States to answer or otherwise defend in this

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matter. Counsel for Plaintiff agreed to an extension of sixty days.

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5.

Defendant Maximum Enterprises, LLC, has not answered in this matter.

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6.

In light of the fact that the Department of Justice only recently obtained the IRS files

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regarding this case, and in light of undersigned counsel’s upcoming trial in the Eastern District of California

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which is scheduled to begin on October 18, 2011, and estimated to require ten trial days, the United States

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respectfully requests a sixty day extension of the existing response deadline, or until Friday, December 9,

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2011, in which to file an answer to the Complaint in this case or otherwise respond.

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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.

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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).
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Case 2:11-cv-01210-JCM -CWH Document 11

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8.

Filed 10/07/11 Page 3 of 4

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.

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WHEREFORE, the United States respectfully moves the Court to issue an order granting the United

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States a sixty (60) day extension of time, until Friday, December 9, 2011, to answer or otherwise respond

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to the Complaint and granting any other relief to which the United States may be entitled. A proposed Order

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is submitted herewith.

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Respectfully submitted this 7th day of October, 2011.

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DANIEL G. BOGDEN
United States Attorney
s/ Colin C. Sampson
COLIN C. SAMPSON
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 683
Ben Franklin Station
Washington, D.C. 20044
[phone]
[phone] (fax)
[e-mail]

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Case 2:11-cv-01210-JCM -CWH Document 11

Filed 10/07/11 Page 4 of 4

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CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that service of the foregoing UNITED STATES’ MOTION FOR

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EXTENSION OF TIME TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT (FIRST

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REQUEST) and [PROPOSED] ORDER have been made this 7th day of October, 2011, by depositing

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copies upon the parties hereto in the United States mail in a postage prepaid envelope addressed to the

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following:

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Noah G. Allison
Cheryl C. Bradford
Martin & Allison, Ltd.
3191 East Warm Springs Road
Las Vegas, Nevada 89120-3147

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Attorneys for Plaintiff Thor Construction, Inc.

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Maximum Enterprises, LLC
123 N. 9th Street
Las Vegas, Nevada 89101

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s/ Colin C. Sampson
COLIN C. SAMPSON
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 683
Ben Franklin Station
Washington, D.C. 20044
[phone]
[phone] (fax)
[e-mail]

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DANIEL G. BOGDEN
United States Attorney
District of Nevada
Lloyd D. George Federal Courthouse
333 Las Vegas Boulevard, South
Suite 5000
Las Vegas, Nevada 89101
[phone]

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COLIN C. SAMPSON
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 683
Ben Franklin Station
Washington, D.C. 20044-0683
Ph: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]

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IN THE UNITED STATES DISTRICT COURT FOR THE
12
DISTRICT OF NEVADA
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15
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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

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Before the Court is the United States’s Ex Parte Motion to Extend Time to Answer or Otherwise
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Respond to Complaint. Upon consideration of the stipulation, and for good cause shown, it is hereby
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ORDERED that the United States’ Motion is granted. The United States shall have an additional
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sixty (60) days, until December 9, 2011, to file a response in this matter.
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IT IS SO ORDERED.
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October
11th
Dated this ____ day of __________________, 2011.

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___________________________________
MAGISTRATE JUDGE
UNITED STATES DISTRICT JUDGE

Case 2:11-cv-01210-JCM -CWH Document 11-1

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Submitted by:
DANIEL G. BOGDEN
United States Attorney

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s/ Colin C. Sampson
COLIN C. SAMPSON
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 683
Ben Franklin Station
Washington, D.C. 20044
[phone]
[phone] (fax)
[e-mail]

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Filed 10/07/11 Page 2 of 2