Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:05-cv-01028-MBH

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Filed 08/21/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________)

ESTATE OF RANKIN M. SMITH, SR., SUNTRUST BANK, TAYLOR W. SMITH, and RANKIN M. SMITH, JR., Co-Executors,

Case No. 05-1028 T Judge Marian Blank Horn

PLAINTIFF'S MOTION FOR LEAVE TO FILE SUR-REPLY TO DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS, INSTANTER Plaintiff, by and through undersigned counsel, hereby moves the Court for leave to file, instanter, a Sur-Reply to defendant's reply in support of its motion to dismiss, filed on August 15, 2006, for good cause set forth below: 1. On August 15, 2006, defendant filed its Reply Brief for the United States in

Support of Its Motion to Dismiss, which brief was initially due on August 9, 2006. 2. On August 9, 2006, defendant had moved for an enlargement of time to file its

reply brief, which was granted by this Court's Order on August 10, 2006. In that Order, the Court directed defendant to combine its reply with its weekly status report, which should "discuss the implications of the IRS review for resolution of the jurisdictional issue . . . ." and "include milestones and a proposed time line for the IRS review." In the portion of defendant's reply setting forth the status of the case, defendant stated: In compliance with the Court's order, we are able to report that an IRS Appeals Officer has been selected who, once the complaint is dismissed

Case 1:05-cv-01028-MBH

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without prejudice, will have the authority to undertake a considered review of plaintiff's claims . . . . Govt. Reply, p. 18. The status report failed to provide any milestones or a proposed timeline for the IRS review. 3. A Sur-Reply is necessary to address these issues, both substantively and

procedurally. For example, a Sur-Reply is necessary to address the time constraints faced by the Estate and the need to have a representation from the government that the IRS Appeals Officer assigned to review the application of the state death tax credit and deductions for interest payments admittedly received by the defendant will also have the authority to make any corresponding adjustments to the transcript (Form 4340) for the Estate. 4. A Sur-Reply is also necessary to address the argument section of defendant's

reply brief, which mischaracterized the Estate's position and arguments. For example, the reply mischaracterized the relief sought by the Estate as attempting to cure jurisdiction, when in fact the Estate is simply seeking a fair accounting of the state of its account on the date it filed its refund suit. In addition, defendant's discussion of the legal authorities it cites is incomplete, making a response necessary in order that the Court maybe fully informed with respect to the applicable law. Counsel for the Estate contacted counsel for defendant with respect to the instant motion and Sur-Reply. Defendant's counsel reported that, without reviewing the instant motion, defendant has no opinion as to whether defendant would oppose said motion.

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Case 1:05-cv-01028-MBH

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WHEREFORE, the Estate prays that this Court grant it leave to file its Sur-Reply, attached as Exhibit A, instanter. Respectfully submitted,

s/ Judith Mather Judith A. Mather (Attorney of Record) Tel: (202) 776-2714 Fax: (202) 776-4714 Email: [email protected] DOW LOHNES PLLC 1200 New Hampshire Ave., N.W., Ste. 800 Washington, D.C. 20036 Alex. L. Bertoldo (Of Counsel) Tel: (202) 776-2045 Fax: (202) 776-4045 Email: [email protected] DOW LOHNES PLLC 1200 New Hampshire Ave., N.W., Ste. 800 Washington, D.C. 20036 ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE I hereby certify that I have caused a copy of the foregoing Plaintiff's Motion for Leave to File Sur-Reply to Defendant's Reply in Support of Its Motion to Dismiss, Instanter to be filed with the ECF System of the United States Court of Federal Claims this 21st day of August 2006, with Notice of Electronic Filing to be made on all case participants who are ECF filing users in compliance with the service requirements of RCFC 5 and the proof of service requirements of RCFC 5.1, as provided in United States Court of Federal Claims General Order No. 42A. I am not aware of any case participants who are not ECF filing users of this Court. s/ Judith Mather Judith A. Mather (Attorney of Record) Tel: (202) 776-2714 Fax: (202) 776-4714 Email: [email protected] DOW LOHNES PLLC 1200 New Hampshire Ave., N.W., Ste. 800 Washington, D.C. 20036

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