Free Reply to Response to Motion - District Court of California - California

Case 3:07-cv-04762-PJH

Document 82

Filed 06/27/2008

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Edward O.C. Ord, Esq. (SBN 52123) Ord & Norman 233 Sansome Street, Suite 1111 San Francisco, CA 94104 Telephone: (415) 274-3800 Facsimile: (415) 274-3838 Attorney for Defendants Charles Hsin and Optech Limited

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. CHARLES CATHCART, SCOTT CATHCART, YURIJ DEBEVC, a/k/a YURI DEBEVC, ROBERT NAGY, DERIVIUM CAPITAL (USA), INC., VERIDIA SOLUTIONS, OPTECH LIMITED, CHIHSIU HSIN, a/k/a CHARLES HSIN, FRANKLIN THOMASON Defendants. _______________________________ _____ DEFENDANTS CHARLES HSIN'S AND OPTECH LIMITED'S REPLY TO UNITED STATE'S REPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 711 FOR EXTENSION OF TIME TO ANSWER PLAINTIFF'S COMPLAINT Civil No. 07-4762-PJH

We are gratified that the United States has agreed to allow the extension. There are a couple of matters that require correction. First, there is a statement on page three of the United States' response to the motion for extension stating that we have made no offer to settle. We have repeatedly stated that until we obtain an ethics clearance, we are unable to make settlement offers. If ethics counsel approves our representation of defendants Hsin and Optech ("Defendants"), then the undersigned can explore settlement options. Until the
DEFENDANTS CHARLES HSIN'S AND OPTECH LIMITED'S REPLY TO UNITED STATES' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 FOR EXTENSION OF TIME TO ANSWER PLAINTIFF'S COMPLAINT

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ethics counsel approves our representation of the defendants, our only option is to seek an extension. We do not see why a proposed settlement offer should be required as part of our reply. Counsel suggests that the fact that the ethics counsel was on vacation somehow would have precluded her from agreeing to the earlier extension. In fact, the opposite should be true. If Counsel knew the ethics counsel was on vacation, then she would have likely agreed to Defendant's original extension of 40 days. Defendants agreed to the June 30th extension in the hope that ethics counsel could make a determination in time for a filing by June 30, and at that time, Counsel indicated she would be open to a further extension if needed. See Lin-Alva Declaration ¶ 8. Since ethics counsel was on vacation, an extension is even more necessary. Counsel fails to appreciate that ethics clearance takes time and careful deliberation. Hastily made ethical decisions run the risk of future liability if a conflict later arises. The Fifth Circuit held in Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367 (5th Cir. 1995) that "the district court is granted broad discretion to expand filing deadlines" when extensions are requested prior to the expiration of the time period "for cause shown." The fact that Defendants have made a genuine good faith attempt to ensure the ethics counsel has received all the information and documentation to make a determination and is similarly forced to wait due to uncontrollable circumstances surely falls within the Court's discretionary authority. Consequently, the United States' suggestion that Defendants' stated reasons do not justify extension, "let alone permission to seek additional extensions," is unfounded. (emphasis added). Defendants are permitted to seek and obtain an extension by the Federal Rules of Civil Procedure for good cause

DEFENDANTS CHARLES HSIN'S AND OPTECH LIMITED'S REPLY TO UNITED STATES' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 FOR EXTENSION OF TIME TO ANSWER PLAINTIFF'S COMPLAINT

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shown. Defendants have demonstrated good cause. Therefore the court should grant Defendants' motion. Defendants further oppose the United States proposed order indicating that no further extension may be brought or obtained. We ask that the Court not limit all further requests, since it is possible that the current counsel might be disqualified and it would be inequitable to bar defendant's future counsel from their right to an extension.

Dated: June 27, 2008

Respectfully submitted, ORD & NORMAN By /s/ Edward O.C. Ord Edward O.C. Ord, Esq. Attorney for Defendants Charles Hsin and Optech Limited
T:\Clients\7118\Admin motion time extension reply.doc

DEFENDANTS CHARLES HSIN'S AND OPTECH LIMITED'S REPLY TO UNITED STATES' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 FOR EXTENSION OF TIME TO ANSWER PLAINTIFF'S COMPLAINT

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CERTIFICATE OF SERVICE I hereby certify that on June 27, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following: Joseph P. Russoniello United States Attorney Thomas Moore Assistant United States Attorney Chief, Tax Division 9th Floor Federal Building 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Attorney for Plaintiff HUONG T. BAILIE Special Trial Attorney 160 Spear Street, 9th Floor San Francisco, California 94105 Attorney for Plaintiff Farley J. Neuman ([email protected]) Tom Prountzos ([email protected]) Jenkins Goodma Neuman & Hamilton LLP 417 Montgomery Street, 10th Floor San Francisco, California 94104 Attorneys for Defendant, Robert Nagy David Bujannoff Porter, Jr. ([email protected]) Wood & Porter 333 Sacramento Street San Francisco, California 94111 Attorney for Defendant Scott Cathcart I further certify that on June 20, 2008, service of the foregoing was made upon the following by depositing a copy in the Unites States mail, postage prepaid: Yuri Debevc (pro se) 1483 Burningtree Road Charleston, SC 29412 Allyson B. Baker Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 7238 Ben Franklin Station Washington, D.C. 20044 ([email protected]) Attorney for Plaintiff

ERIC L. WEBB BARTSCH & WEBB 317 Rosecrans Avenue Manhattan Beach, California 90069 ([email protected]) Attorney for Defendant Charles Cathcart

/s/ Edward O.C. Ord____ EDWARD O.C. ORD

DEFENDANTS CHARLES HSIN'S AND OPTECH LIMITED'S REPLY TO UNITED STATES' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 FOR EXTENSION OF TIME TO ANSWER PLAINTIFF'S COMPLAINT

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