Free Ex Parte Application - District Court of California - California

Case 3:07-cv-04762-PJH

Document 73

Filed 06/20/2008

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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. _______________________________ _____ EX PARTE APPLICATION AND ORDER EXTENDING TIME FOR DEFENDANTS CHARLES HSIN AND OPTECH LIMITED TO ANSWER OR OTHERWISE RESPOND TO PLAINTIFF'S COMPLAINT; AND DECLARATIONS OF EDWARD O.C. ORD AND JENNY LINALVA IN SUPPORT THEREOF Civil No. 07-4762-PJH

Pursuant to FRCP 6(b), Defendants Charles Hsin and Optech Limited, ("Defendants") hereby apply to the Court on an ex parte basis for an Order extending Defendants Charles Hsin and Optech Limited's time to answer or otherwise respond to Plaintiff's complaint. Defendants' response to Plaintiff's complaint is currently due on June 30, 2008, which takes into account a stipulated
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EX PARTE APPLICATION TO EXTEND TIME TO ANSWER OR OTHERWISE RESPONSE TO COMPLAINT

Case 3:07-cv-04762-PJH

Document 73

Filed 06/20/2008

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extension previously agreed to by the parties. Due to an unusual set of circumstances set out in the joint declaration below, Defendants seek a further extension of time until July 15, 2008, to answer or otherwise respond to Plaintiff's Complaint. This application is brought on an ex parte basis due to that fact that if heard on a regularly noticed basis, it would not be heard until on or after the due date for Defendants' responsive pleading. Per FRCP 6(b), the "good cause" for this application is as follows. Under penalty of perjury, the undersigned counsel states: 1. Counsel continues to operate on limited authority to seek an extension of time only, as counsel and the clients are waiting for a conflicts clearance and letters. 2. Ethics counsel was on vacation. Counsel has returned. However, ethics counsel has requested and is now waiting for additional facts and information. Ethics counsel cannot give a time or an answer on the waiver until he receives this information and evidence and considers all of it. Some information has been provided while the balance is currently in the process of being finalized and will be delivered to the ethics counsel by next Tuesday. There will not be enough time to allow Counsel to prepare answers (including affirmative defenses) and/or motions under the limited authority counsel has been given due to conflicts. 3. This tax injunction case is very complex and eventual counsel of record may prepare and file motions prior to filing any answer. 4. The current situation will prejudice the moving defendants with respect to motion and answer. 5. There is another individual defendant, Frank Thomason that, to my knowledge, has not been served. The undersigned may be in a position to represent Mr. Thomason and we are awaiting a response. If this effort is
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EX PARTE APPLICATION TO EXTEND TIME TO ANSWER OR OTHERWISE RESPONSE TO COMPLAINT

Case 3:07-cv-04762-PJH

Document 73

Filed 06/20/2008

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successful, in the long run, time of all involved will be saved by having the undersigned represent all three defendants. 6. The undersigned wrote two letters to government counsel Allyson Baker. The undersigned never received any answer. 7. Counsel's associate, Jenny Lin-Alva, attempted to reach Ms. Baker two times today at approximately 10:50 a.m. and 11:20 a.m. without success. Abuot or around 2:30 p.m., Ms. Baker returned Ms. Lin-Alva's calls. Ms. Baker indicated that she had been traveling all week and did not see the letters our office sent her. She indicated that she would agree to an extension past June 30 but not to July 15 because it was uncertain whether Counsel's clients would seek additional extensions. Ms. Baker could not discuss this subject in more detail due to the fact that she was about to depart from Grand Central Station and could not hear Ms. Lin-Alva very well. Ms. Baker assured Ms. Lin-Alva that she would agree to an extension past June 30. However, no specific date was agreed to. Ms. Baker indicated that the two offices should discuss this subject in more detail on Tuesday, June 24, 2008. Ms. Lin-Alva indicated to Ms. Baker that our office would be filing a motion to seek an extension today given the rules of this Court requiring a motion be filed 10 days in advance. Ms. Baker indicated that a motion today was not necessary since she was agreeing to an extension beyond June 30. 8. Due to the rules of this Court requiring a motion to seek an extension to be filed 10 days prior to the date the answer is due, the undersigned is filing this motion protectively pending discussion with Ms. Baker on June 24, 2008. 9. Undersigned counsel hereby certifies that this application is made in good faith and for good cause.

EX PARTE APPLICATION TO EXTEND TIME TO ANSWER OR OTHERWISE RESPONSE TO COMPLAINT

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Case 3:07-cv-04762-PJH

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WHEREFORE, THE MOVING DEFENDANTS RESPECTFULLY REQUEST THE COURT TO GRANT THE REQUESTED EXTENSION TO JULY 15, 2008. I declare under penalty of perjury that the foregoing is true and correct. Dated: June 20, 2008 Dated: June 20, 2008

ORD & NORMAN By______/S/_____________ Edward O.C. Ord, Esq. Attorney for Defendants Charles Hsin and Optech Limited By _______/S/___________ Jenny Lin-Alva, Esq. Counsel's Associate
Ord & Norman

ORDER

Having considered Defendants' Charles Hsin and Optech Limited ("Defendants") ex parte application for an extension of time for Defendants to answer or otherwise respond to Plaintiff's complaint, and finding good cause therefore, IT IS HEREBY ORDERED that Defendant have to and including [July 15, 2008] [______________________, 2008] by with to file such pleading.

Dated: ____________

___________________________ United States District Judge

EX PARTE APPLICATION TO EXTEND TIME TO ANSWER OR OTHERWISE RESPONSE TO COMPLAINT

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Case 3:07-cv-04762-PJH

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CERTIFICATE OF SERVICE I hereby certify that on June 20, 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. Ord____ EDWARD O. ORD

EX PARTE APPLICATION TO EXTEND TIME TO ANSWER OR OTHERWISE RESPONSE TO COMPLAINT

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