Free Motion for Extension of Time to File Answer - District Court of California - California

Case 3:08-cv-01358-BTM-NLS

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KAREN P. HEWITT United States Attorney TOM STAHL, California State Bar No. 78291 Assistant United States Attorney Chief, Civil Division LAUREN M. CASTALDI Trial Attorneys, Tax Division U.S. Department of Justice P.O. Box 683, Ben Franklin Station Washington, D.C. 20044-0683 Telephone: (202) 514-9668 Facsimile: (202) 307-0054 E-mail: [email protected] Attorneys for the United States of America IN THE UNITED STATES DISTRICT COURT

11 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 BETSY MCINTYRE, an individual; 18 19 20 21 Defendants. 22 23 24 complaint recently removed to this Court from the California Superior Court for San Diego County. 25 26 27 28 Although Betsy McIntyre is named as a defendant, because the allegations in the complaint sound in tort, it appears that the proper party is the United States and not Betsy McIntyre. 28 U.S.C. § 2679(d)(1). -13468914.1
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CLAYTON BLEHM, dba FDC INVESTMENTS, INC. Plaintiff, v.

QUICKSILVER, INC., a Delaware Corporation; and DOES1-50, inclusive,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 08-CV-1358-BTM-NLS DEFENDANT BETSY MCINTYRE'S EX PARTE APPLICATION FOR EXTENSION OF TIME TO RESPOND TO COMPLAINT

Removed from San Diego County, California Superior Court
Case No. 37-2008-00084761-CU-FR-CTL

Defendant Betsy McIntyre1 applies to this Court for an extension of time to respond to the

Case 3:08-cv-01358-BTM-NLS

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1.

On May 28, 2008, a civil action designated as a Complaint For Damages Fraud and

Conspiracy was filed in the California Superior Court for the County of San Diego. The plaintiff alleges that Ms. McIntyre and Defendant Quicksilver, Inc. conspired to defraud the plaintiff. The plaintiff seeks damages for the alleged violations. 2. Betsy McIntyre has not been served in this action. Because Defendant McIntyre is being

sued as a result of her conduct as a federal officer, FED. R. CIV. P. 4(i)(3) requires that the summons and complaint be served on Defendant McIntyre, and that complaint and summons be served on the United States Attorney for the Southern District of California and the Attorney General. Neither the United States Attorney's Office for the Southern District of California nor the United States Attorney General has received or been served a Summons or Complaint from the Plaintiff in the above-captioned action. The Department of Justice received notice of this action from the Internal Revenue Service on or about June 26, 2008. 3. Fed. R. Civ. P. 81(c) requires that a response to a complaint be filed within 20 days of

receipt of the complaint and within 5 days of the removal of the action to District Court, whichever is longer. Thus, if the pleading had been filed originally in this court, Ms. McIntyre would have had 60 days from the date of service to respond. Fed. R. Civ. P. 12(a)(3). Ms. McIntyre requests for good cause shown, a reasonable amount of time, until August 28, 2008, to file an answer or otherwise respond to the Complaint.2 4. The week of June 28, 2008, undersigned counsel contacted opposing counsel regarding

this motion. All of the contacted parties indicated that they had no objections to the relief requested. 5. A proposed Order is provided herewith.

In lieu of a response and in accordance with 28 U.S.C. § 2679(d)(1), the United States may effectuate a substitution as the party defendant. -23468914.1

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Case 3:08-cv-01358-BTM-NLS

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DATED this 31st day of July, 2008.

KAREN P. HEWITT United States Attorney TOM STAHL Assistant United States Attorney Chief, Civil Division /s/ Lauren Castaldi LAUREN M. CASTALDI Trial Attorneys, Tax Division U.S. Department of Justice Attorneys for the United States of America

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 31st day of July, 2008, I mailed by U.S. Postal Service the foregoing to the following: Roy Withers, Esq. Law Offices of Roy R. Withers 2802 Juan Street, Suite 12 San Diego, CA 92110 Molly J. Magnuson O'Melveny & Myers LLP 610 Newport Center Dr, 17th Floor Newport Beach, California 92660

/s/ Lauren M. Castaldi LAUREN M. CASTALDI Trial Attorney, Tax Division U.S. Department of Justice

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