Free Motion for Extension of Time to File Response/Reply - District Court of Federal Claims - federal

Case 1:05-cv-00231-EJD

Document 113-2

Filed 09/05/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 05-231 T (Chief Judge Damich) ______________________________ JZ Buckingham Investments LLC as Tax Matters Partner of JBJZ Partners, a South Carolina general partnership, Plaintiff, v. United States of America, Defendant.

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DECLARATION OF DAVID STEINER DAVID M. STEINER, an attorney duly admitted to practice before this Court, hereby declares, pursuant to 28 U.S.C. § 1746, as follows: 1. I am a trial attorney at the United States Department of Justice and am the attorney principally charged with defending the interests of the United States on the instant motion. I submit this declaration in support of the United States' Motion for a further enlargement of time to file its reply. 2. On July 23, 2007, the United States filed a Corrected Motion to Amend its Answer to Assert Counterclaim for Penalties. 3. 4. On August 9, 2007, Plaintiff filed its Response to the Motion. On August 20, the United States previously filed an Emergency Motion to extend the time for its Reply until September 7. The requested enlargement of time was necessary

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because of my difficult personal circumstances, as well as the fact that 156 pages of the 234 pages of Exhibits in Plaintiff's Response were illegible. 5. On August 21, the Court graciously granted the emergency motion of the United States extending the Reply date to September 7. 6. On August 30, Plaintiff filed a motion to Amend/Correct its filing of August 9, including 156 proposed new, presumably legible, pages. The United States had informed Plaintiff that it would not oppose the motion to Amend/Correct. While Plaintiff's new proposed exhibits are somewhat more legible than those annexed to its August 9 Response, they are still very difficult to read. 7. In my Declaration of August 20, 2007, I explained to the Court the difficult circumstances of the birth of my son on July 25, 2007, and the precarious condition of the health of my wife and son and that this had kept me out of the office for several weeks. 8. As I mentioned in my Declaration of August 20, I was able to get into the office for a few days in the third week of August because my wife's brother, Eung Do Kim, M.D., flew in from San Diego so I could bet back to the office briefly, but I had to return to taking care of my wife and child, both who continue to suffer from complications. 9. I had not expected that I would be out of the office for so long due to these complications. My son is finally gaining weight steadily, which he was not doing for the first three weeks, but is not apparently able to hear properly out of his right ear. These issues have been taking up all my time. For example, I had to spend most of yesterday at Georgetown Hospital.

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10.

Notwithstanding the prior enlargement of time, due to the unexpected length of my absence from the office I have not yet been able to devote time to this Reply in order to be able to meet the planned September 7 due date.

11.

On September 5, 2007, I telephoned Plaintiff's counsel, Mr. Todd Welty, and asked him if he would consent to a ten (10) day extension to September 17th, notwithstanding that he had not consented to my prior extension request. Mr. Welty told me that he would consent provided that the United States would not oppose a motion by plaintiff for leave to file a Sur-Reply. I told Mr. Welty that, prior to the filing of a Reply, it was pre-mature to make any agreements regarding a Sur-Reply for which the Rules of this Court do not provide.

12.

Once again, I reiterate that it is with extreme embarrassment that I make this motion because, in 19 years of practice, while I have often received requests for extensions from various opposing counsels due to personal circumstances (to which, to the best of my recollection, I have always consented), I have never before had to make one and I deeply apologize for troubling the Court with my personal problems. I, David M. Steiner, declare under penalty of perjury that the foregoing is true and correct.

Executed on September 5, 2007.

s/ David M. Steiner DAVID M. STEINER Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 55 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 307-5892

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CERTIFICATE OF SERVICE I hereby certify that on September 5th, 2007, I electronically filed the foregoing Declaration with the Clerk of the Court using the ECF system which will send notification of such filing to the following: Joel N. Crouch Texas State Bar No. 05144220 Meadows, Collier, Reed Cousins & Blau, L.L.P. 901 Main Street, Suite 3700 Dallas, Texas 75202 s/ David M. Steiner David M. Steiner Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 55 Ben Franklin Station Washington, D.C. 20044 (202) 307-5892

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