USA v. Hulick et al
ORDER denying 84 Motion for Leave to File amended complaint. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America,
Case No. 08-cv-499-SM
Opinion No. 2012 DNH 035
David M. Hulick and
Caroline P. Hulick,
State of New Hampshire
Department of Employment Security,
O R D E R
The government seeks leave to amend its complaint “to
clarify and correct a mistake in describing a trust fund recovery
assessment” it hopes to recover from David Hulick (at least in
part by foreclosing its federal tax lien on Hulick’s interest in
his family’s home).
That motion is denied for a number of
reasons, including the following:
The motion to amend is untimely. The
scheduling order and discovery plan adopted
by the court on November 10, 2010 (document
no. 24), established a February 15, 2011,
deadline for amendments to the pleadings - a
deadline that passed more than a year ago;
Discovery closed on September 1, 2011, and
this case is currently scheduled for trial in
June. Granting the government’s motion would
cause undue delay;
Allowing the proposed amendment would
unfairly prejudice defendants;
This is not the first time the government’s
inattention to detail has prejudiced (or
would prejudice) the Hulicks (see, e.g., the
court’s earlier discussion of the
government’s erroneous calculation of the
relevant CSEDs - revealed only after the
Hulicks dutifully made substantial monthly
payments to the IRS and reasonably believed
they had satisfied their obligations to the
The “mistakes,” “errors,” and
“misunderstandings” of the record evidence
that the government now seeks to correct were
pointed out by the Hulicks (repeatedly) many
months ago. And, when the Hulicks raised
them (again) in their motion to reconsider,
the court noted that the IRS responded with
silent “indifference.” Order (document no.
82) at 8;
More is expected of the government in
conducting litigation. Its history of
carelessness and nonchalance in prosecuting
this case counsels strongly against granting
its tardy motion to amend;1
The government has not shown good cause for
its delay in seeking to amend the complaint.
Although the government’s motion invokes the
lenient provisions of Rule 15(a), it fails to
satisfy (or even acknowledge) the more
For example, only now does the government concede that
there is no evidence that Hulick had any role whatsoever in Maine
Aviation - despite pursuing him since 1997 for trust fund
recovery penalties related to that company. One would hope (and
expect) that agents of the IRS and their legal counsel would
exercise a bit more caution and attention to detail before
bringing the full weight of the federal government to bear
against a taxpayer.
rigorous, and applicable, requirements of
Rule 16(b). See generally Steir v. Girl
Scouts of the USA, 383 F.3d 7, 12 (1st Cir.
2004); O’Connell v. Hyatt Hotels, 357 F.3d
152, 154 (1st Cir. 2004). See also RosarioDiaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir.
1998) (noting that “[c]arelessness is not
compatible with a finding of diligence”);
Feliciano-Hernandez v. Pereira-Castillo, 663
F.3d 527, 538 (1st Cir. 2011) (noting that
“protracted delay, with its attendant burdens
on the opponent and the court, is itself a
sufficient reason for the court to withhold
permission to amend”).
For the foregoing reasons, as well as those set forth in the
Hulicks’ memorandum (document no. 86), the government’s motion to
amend the complaint (document no. 84) is denied.
Steven J. McAuliffe
United States District Judge
March 16, 2012
Patrick B. Gushue, Esq.
Andrea A. Kafka, Esq.
Richard J. Lavers, Jr., Esq.
Gerald C. Miller, Esq.
Daniel E. Will, Esq.
Joshua M. Wyatt, Esq.
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