Lee v. United States of America

Filing 98

ORDER granting ECF No. 94 Motion to Continue. Calendar call set for 03/05/2018, is VACATED and CONTINUED to 06/18/2018, at 9:00 A.M. in LV Courtroom 4B. Trial set for 03/12/2018, is VACATED and CONTINUED to 07/09/2018, at 8:30 A.M. in LV Courtroom 4B. Signed by Judge Robert C. Jones on 2/22/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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THEODORE LEE,

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Plaintiff,

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2:14-cv-00606-RCJ-PAL

vs.

ORDER

UNITED STATES OF AMERICA,

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Defendant.

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This is an action to recover income taxes paid by Plaintiff Theodore Lee for tax year

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2006. A jury trial is presently set for March 12, 2018. Now pending before the Court is a motion

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to continue the trial for a period of approximately four months. (ECF No. 94.)

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I.

FACTS AND PROCEDURAL HISTORY
At a status conference on January 10, 2018, Mr. Lee’s attorney George Kelesis appeared

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before the Court and represented that he and Mr. Lee were prepared to go forward with trial on

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March 12. Two weeks later, however, Mr. Lee filed a motion to continue the trial based on the

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state of Mr. Kelesis’s health. In the motion, Mr. Kelesis represents that starting in June 2017, he

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has “suffered a series of adverse medical events, requiring two surgeries, a prolonged

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hospitalization, and an interventional cardiac procedure,” and that he “suffered an episode of

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recurrent symptoms” following the status conference on January 10. (Kelesis Decl. ¶¶ 3–5, ECF

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No. 94 at 6.) As a result, Mr. Kelesis’s treating physician now counsels against his participation

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in a trial at this time. (Id. at ¶¶ 5–6.)
In response, the United States does not oppose a four-month continuance, although it

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does note that this is Mr. Lee’s sixth request for an extension of time based on the health

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problems of his attorneys. (Resp. 2, ECF No. 96.) The United States also represents that while it

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does not oppose Mr. Lee’s present request, it “would oppose similar requests in the future.” (Id.

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at 3.)

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II.

LEGAL STANDARDS
a. Motion for Continuance

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“A district court’s decision regarding a continuance is given great deference.” Danjaq

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LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001). The Ninth Circuit has identified four

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primary factors to weigh in determining whether to grant a continuance: (1) the movant’s

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diligence in preparing for the date set for hearing; (2) the likelihood that a continuance will

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address the need giving rise to the motion for a continuance; (3) the extent to which a

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continuance will inconvenience the court and the opposing party, including its witnesses; and (4)

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whether the movant will suffer prejudice if the continuance is denied. United States v. Flynt, 756

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F.2d 1352, 1359 (9th Cir.), amended, 764 F.2d 675 (9th Cir. 1985); see also Danjaq, 263 F.3d at

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961. The fourth factor is mandatory. Id.

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III.

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ANALYSIS
a. The Court will grant the requested continuance.
Based on the factors enumerated in Flynt and in light of the United States’ non-

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opposition, the Court finds there is good reason to grant the requested continuance. However, the

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Court cautions Mr. Lee and Mr. Kelesis that all further requests for extensions of time will be

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strongly disfavored.

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b. The issue of Lee’s liability for tax penalties remains for trial.

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In addition, the Court takes this opportunity to clarify a matter raised at the January 10

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status conference. (See Minutes at ECF No. 93.) Contrary to statements of counsel at the

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conference, the counterclaim issue of liability for non-payment of tax and failure to file a timely

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return was not conceded by either party. Therefore, the counterclaim question remains at issue

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for trial.

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While the Court denied summary judgment to Mr. Lee on the counterclaim for penalties,

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the Court did not grant summary judgment to the United States on that issue. Therefore, the issue

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remains for trial, including the question of whether the claim of Fifth Amendment privilege is a

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valid defense to the penalties for late payment and failure to file.
CONCLUSION

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IT IS HEREBY ORDERED that the motion (ECF No. 94) is GRANTED.

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IT IS FURTHER ORDERED that the calendar call set for March 5, 2018, is VACATED

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and CONTINUED to June 18, 2018, at 9:00 AM in LV Courtroom 4B.
IT IS FURTHER ORDERED that the trial set for March 12, 2018, is VACATED and
CONTINUED to July 9, 2018, at 8:30 AM in LV Courtroom 4B.
IT IS SO ORDERED.

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_____________________________________
ROBERT C. JONES
United States District Judge
February 22, 2018

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