Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-01028-MBH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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

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

Case No. 05-1028 T Judge Marian Blank Horn

OPPOSITION TO DEFENDANT'S MOTION FOR ENLARGEMENT OF TIME

The plaintiff, the Estate of Rankin Smith, Sr. (the "Estate"), opposes the enlargement of time sought by government counsel to reply to the Estate's Memorandum in Opposition to the Defendant's Motion to Dismiss because defendant's counsel failed to comply with CFCR 6.1 by requesting the Estate's consent to its motion in an email sent only 12 minutes before filing its motion, with no reason provided for the enlargement, and because defendant has failed to show good cause for the relief requested. Yesterday, at 5:25 p.m. on the day the government's reply to the Estate's Memorandum in Opposition to the Defendant's Motion to Dismiss was due, government counsel filed a motion for enlargement of time to file its reply, alleging that (a) "plaintiff's opposition to the motion to dismiss raises new issues which require more time to prepare a meaningful response than was initially anticipated by defendant's trial attorney" and (b) defendant's trial attorney received a Summary Record of Assessment from the IRS on August 8 and was in the process of obtaining a

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declaration "in connection with the production of that document." See Govt. Motion for Enlargement of Time, Docket # 32. Government counsel also represented that she had attempted to contact the Estate's counsel by email, in a statement that is misleading at best: Defendant's trial attorney contacted plaintiff's counsel via e-mail about the enlargement of time but plaintiff has not yet responded. Therefore, plaintiff has neither agreed to nor objected to the allowance of this motion. See Govt. Motion for Enlargement of Time, Docket # 32, p. 2. Government counsel first contacted the Estate's counsel by an email sent at 5:13 p.m., just 12 minutes before she filed the motion, and received by the Estate's counsel at 5:20 p.m., five minutes before the motion was filed. Even then, the email failed to provide any reason whatsoever for the enlargement of time. See Email from Jennifer Spriggs to Judith Mather, sent August 9, 2006, 5:13 p.m., attached as Exhibit A. This action completely fails to satisfy CFCR 6.1, which requires that "[m]otions for enlargement of time must include a representation that the moving party has discussed the motion with opposing counsel . . . or if opposing counsel cannot be consulted, an explanation of the efforts that were made to do so." CFCR 6.1. A cryptic email sent 12 minutes before filing a motion for enlargement of time does not meet CFCR 6.1's requirement that counsel for the movant discuss the motion with opposing counsel.1 Further, the government's purported good cause was known well before 5:13 p.m. on the date the government's reply was due. The August 9 deadline for the government's reply also

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The Estate's counsel received the email at 5:20 p.m. and replied to government counsel at 5:33 p.m., before the Estate's counsel had received electronic notification of the filing of the government's motion. In that response, the Estate's counsel stated that an explanation for the enlargement sought was needed before it could be considered. See email from Judith Mather to Jennifer Spriggs, sent August 9, 2006, 5:33 p.m., attached as Exhibit B. 2

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was no surprise; it was set forth in a scheduling order entered on June 9, 2006. See Docket #18. In addition, the vast majority of the issues addressed in the Estate's opposition to the government's motion to dismiss were raised with the government in meetings on June 27 and July 10. See Memorandum in Opposition to Defendant's Motion to Dismiss, pp. 10-13 (account of issues discussed at June 27 and July 10 meetings). The only issue not previously raised may have been relief in the form of mandamus raised in the Estate's opposition. To the extent government counsel needed more time to respond, government counsel could have, and should have, contacted counsel for the Estate and requested relief long before the eleventh hour of the date its reply was due. Government counsel's receipt of the Summary Record of Assessment offers no reason for delaying its brief. The brief could have been filed with an uncertified copy of that document, with a representation that a certified copy would follow. In fact, in its status report filed on Tuesday, August 8, the government made no mention of needing more time or of receiving the Summary Record of Assessment.

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The government has failed to comply with the Court's Order and CFCR 6.1. In addition, its misleading representations regarding its attempt to comply with CFCR 6.1 demonstrate a lack of professional civility that is unnecessarily raising the Estate's costs for pursuing a refund suit in this Court. For all these reasons, the Estate prays that the Court deny the government's motion for an enlargement of time. 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 Opposition to Defendant's Motion for Enlargement of Time to be filed with the ECF System of the United States Court of Federal Claims this 10th 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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