Free Brief - District Court of California - California

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 1 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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. __________________________________ Civil No. 07-4762-PJH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

TABLE OF CONTENTS STATEMENT OF FACTS............................................................................................................1 ARGUMENT ................................................................................................................................2 I. THE MOVING DEFENDANTS HAVE SHOWN COMPELLING GROUNDS FOR THE REQUESTED CONTINUANCE UNDER THE NINTH CIRCUIT'S FOUR FACTOR TEST.................................................................................................................2 A. The Defendants Exercised Sufficient Due Diligence..................................................3 B. The Needs of the Defendants will be Met if a Continuance is Granted......................4 C. A Continuance Would Not Inconvenience the Court or the Opposing Party .............5 D. Defendants Would Suffer Harm and Prejudice if the Continuance is Denied ............6 II. THE DUE PROCESS CLAUSE, INCLUDING AS IMPLEMENTED IN THE FRCP, REQUIRES THE GRANT OF THE REQUESTED CONTINUANCE...........................7 CONCLUSION ...........................................................................................................................11 i

28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE CASE MANAGEMENT SCHEDULE ORDER

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 2 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

TABLE OF AUTHORITIES Cases Nakamoto v. Hartley, 758 F.Supp. 1357 (D.Hawaii 1991)...........................................................4 Nelson v. Adams USA, Inc., 529 U.S. 460 (2000) ...................................................................7, 8 Sutherland Paper v. Grant Paper Box Co., 183 F.2d 926 (3rd Cir. 1950)......................................6 US v. Flynt, 756 F.2d 1352 (9th Cir. 1985) ...............................................................................2, 3 Statutes Administrative Procedures Act .....................................................................................................4 Rules Federal Rules of Civil Procedure 9(b)...........................................................................................4 Federal Rules of Civil Procedure12(e)..........................................................................................4

ii 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE CASE MANAGEMENT SCHEDULE ORDER

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 3 of 15

1 2 3 4 5 6 7

STATEMENT OF FACTS The above civil action was filed on September 17, 2007. Very late in the proceedings this Court ordered the First Amended Complaint to be filed on April 18, 2008. The First Amended Complaint was filed on April 23, 2008. The Moving Defendants, Charles Hsin and Optech Limited ("Moving Defendants" or "Defendants"), were served the First Amended Complaint on May 13, 2008. The Court had the following deadlines in effect prior to service of the First Amended

8 9 10 11 12 13 14 15 16 17 18 non-dispositive motions. The Defendants have not been able to file dispositive motions on 19 20 21 22 23 24 25 26 on the designation of experts ran on August 20, 2008. Yet, the good faith motions have not 27 1 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

Complaint on Defendants pursuant to its Civil Minute Order of January 3, 2008 (other than item 1): 1. 2. 3. 4. 5. 6. The last day to amend pleadings is June 5, 2008. The cut-off date for the designation of experts is August 20, 2008. The cut-off date for non-expert discovery is September 3, 2008. The cut-off date for expert discovery is October 1, 2008. Dispositive motions must be heard by November 19, 2008. Trial is set for March 23, 2009.

Again, the Moving Defendants were joined as parties by virtue of the filing of the amended complaint on April 23, 2008. After a reasonable extension of times approved by the Court, the Defendants have moved expeditiously by filing a series of meritorious, good faith

technical grounds due to the inability to obtain certain declarations to date. The motions are set for hearing on September 10, 2008. The Defendants are not required to file an answer until ten (10) days after the above motions are decided. The deadline of June 5, 2008 cutting off the right to amend pleadings had already run before the Defendants had even filed the first motion on June 15, 2008. The second deadline

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 4 of 15

1 2 3 4 5 6 7

even been heard. The third discovery deadline cutting off non-expert discovery will have run before the Defendants are required to answer the complaint on September 3, 2008. The Federal Rules of Civil Procedure shall herein be referred to as "FRCP." ARGUMENT I. THE MOVING DEFENDANTS HAVE SHOWN COMPELLING GROUNDS FOR THE REQUESTED CONTINUANCE UNDER THE NINTH CIRCUIT'S FOUR FACTOR TEST The standard of review that must be met for the grant of a continuance is an abuse of

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 In Flynt, the District Court refused to grant a continuance of the trial to allow the 23 24 25 26 27 2 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

discretion. However, this standard is keyed to a four factor test in US v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985). The test is mainly for the benefit of the Court's consideration because there are "no mechanical tests for deciding when a denial of a continuance warrants reversal." Id. at 1362. The four factors are: A. the extent of appellant's diligence in his efforts to ready his defense prior to the date set for hearing, B. the likelihood that the need for a continuance could have been met if the continuance had been granted, C. the extent to which granting the continuance would have inconvenienced the court and the opposing party, including its witnesses, and D. the extent to which the appellant might have suffered harm. Id.

defendant time to be examined by expert witnesses to assist in his defense. Id. at 1358. The Ninth Circuit indicated that the District Court denied the continuance mainly because Flynt was yelling obscenities at the judge and demanding that he be put in jail. Id. The District Court's

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 5 of 15

1 2 3 4 5 6 7

decision was reversed. The Ninth Circuit held that the denial of a continuance by the District Court was an abuse of discretion because: i. Flynt asserted sufficient diligence in trying to secure evidence because the need for a continuance was mainly due to the fact that the three expert witnesses were unable to perform adequate evaluations within the time constraints, ii. the continuance is needed and would be for the useful purpose of finding and using witnesses to assist in his defense on a legitimate issue of fact,

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 including motions for more specific pleadings. These motions are currently under 23 24 25 26 27 3 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

iii.

there would be no cognizable inconvenience to the court or the government given the fact that there would be no scheduling difficulties if the proceedings were re-calendared, and

iv.

Flynt suffered extreme prejudice as a result of the court's denial because by denying the court the opportunity to hear testimony from the expert witnesses Flynt would not be able to put forth the only defense that he had.

We now apply the four factors i-iv to the facts here. A. THE DEFENDANTS EXERCISED SUFFICIENT DUE DILIGENCE The Moving Defendants were joined as parties on April 18, 2008 and were served on May 13, 2008. After being served, the Defendants diligently exercised their due process rights under the Federal Rules of Civil Procedure ("FRCP") by filing good faith non-dispositive motions,

consideration by this Court. However, by the time these motions are decided, the above crucial deadlines will have already passed through no fault of the Moving Defendants. Despite any

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 6 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

vigorous due diligence, the election of the U.S. to bring in the Defendants so late into the case defeats the more than sufficient due diligence the Defendants could have and did exercise. B. THE NEEDS OF THE DEFENDANTS WILL BE MET IF A CONTINUANCE IS GRANTED The Defendants believe that it is necessary for this Court to decide on the meritorious non-dispositive motions so the Defendants can answer the specific pleadings under the rules. The U.S. elected to file a vague, conclusory complaint which lumped the defendants together. The complaint is currently so vague that FRCP 9(b) and 12(e) motions were necessary. After the proper disclosures are made by the Plaintiff, the Defendants will request documents and conduct interrogatories. Then, the Defendants will take depositions of government officials and third party witnesses,1 conduct discovery and research, and select the needed experts after discovery. However, the Defendants are currently barred from exercising their rights under the FRCP. The Defendants plan to file dispositive motions that present new meritorious issues, including constitutional issues, issues relating to the Administrative Procedures Act, estoppel issues, and mootness issues, which the Defendants wish to pursue if the non-dispositive motions are denied. Currently, the Defendants have had difficulty in obtaining certain

19 20 21 22 23 24 25 26 27 28
1

declarations. Defendants anticipate that these declarations will be obtained shortly. See Declaration of Edward O.C. Ord In Support of Defendant's Motion filed concurrently ("Ord Decl.") ¶5. In Nakamoto v. Hartley, 758 F.Supp. 1357, 1368 (D.Hawaii 1991), a continuance of trial was granted and the discovery cutoff date was extended by the District Court. The court indicated the defendant's motions presented "some new issues upon which defendants have not The Government has already taken depositions and other discovery in the past. 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 7 of 15

1 2 3 4 5 6 7 8 9 10 11

yet had adequate discovery." Similarly, the motions by the Defendants in this case also raise new issues which can only be sufficiently prepared for by extending the discovery cutoff date to a reasonable time. See Ord Decl. ¶¶4, 6, and 7. By extending the discovery cut-off periods and granting a continuance of trial, the Defendants' needs outlined above will be met for trial. C. A CONTINUANCE WOULD NOT INCONVENIENCE THE COURT OR THE OPPOSING PARTY At the present time the Court has personal jurisdiction over all defendants in this proceeding, except one. If a defendant acts inappropriately, the Court can use its inherent supervision powers to put a stop to such actions. The Plaintiff will thus not be inconvenienced whatsoever by granting this continuance. Moreover, the government will not be inconvenienced because any inconvenience

12 13 14 15 16 17 18 all the loans in issue in this civil action were not the sales of securities but bona fide loans. See 19 20 21 22 23 24 25 26 27 28 The Government could have filed a separate civil action for an injunction against the Moving Defendants but chose not to. Also, the Government is still seeking to serve Franklin Thomason alleged to be a principal and director of Optech Limited. The Court granted the Government's motion today and required that Thomason be served by publication no later than October 20, 2008. By the time publication is obtained and if Thomason answers, it will be time for trial and all deadlines with respect to Thomason will have run. 5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER
2

objection has been waived due to the fact that the government chose to add the Defendants at such a late date in the proceedings.2 The 90% Stock Loan transaction is actively being litigated by taxpayers in the Federal Courts. By granting a continuance, the Court will have the benefit of these decisions on the merits of the loan transaction. One state superior court has granted summary judgment holding

Ord Decl. ¶11. Thus, the continuance would put the Court in a much more informed position and would not inconvenience the Court as the Court is double and triple booked through 2009 or any opposing party whatsoever as everyone is seeking more time, including the Plaintiff.

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 8 of 15

1 2 3

D. DEFENDANTS WOULD SUFFER HARM AND PREJUDICE IF THE CONTINUANCE IS DENIED Under the current deadlines, by the time the motions are decided the Defendants cannot amend any pleadings and could not conduct non-expert discovery at all before an answer is

4 5 6 7 8 9 10 11 Here, by the time the Defendants' motions are decided and answered, the above 12 13 14 15 16 17 18 motion for a continuance is reasonable and necessary, and thus there is no reason for the 19 20 21 22 23 24 25 26 27 6 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

filed. The situation here is similar to but more egregious then in Sutherland Paper v. Grant Paper Box Co., 183 F.2d 926 (3rd Cir. 1950). In Sutherland, a patent infringement case, the Third Circuit held that the denial of a continuance constituted an abuse of discretion because the defendants were not given adequate time to prepare for discovery given the fact that the defendants' motions for summary judgment, discovery and production, and rulings on answers to interrogatories were not decided until two weeks before the trial date. Id. at 930.

delineated deadlines will already have run. In Sutherland, the defendants had two weeks to analyze and interpret their discovery. Worse than Sutherland, the Moving Defendants in this case would not even have the opportunity for discovery after their motions are decided because the cut-off date for discovery will have already expired. Similar to the rationale given by the court in Sutherland, the Moving Defendants' motions are "neither baseless nor frivolous," the

"depravation of reasonable opportunity to make adequate preparation for trial." Id. at 931. Even more egregious, no discovery has been received from the Government other than the initial disclosure and, today, a small part of the extensive discovery already produced to the other defendants ­ two of apparently eight digital discs containing documents. Indeed, Defendants understand from other parties in this case that the eight discs contain 363,159 separate files. Some of these files are multiple-page files, including one file consisting of 692

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 9 of 15

1 2 3 4 5 6 7

pages. Defendants have not yet have an opportunity to analyze these documents, and again, to date, have only received two of the eight discs. Furthermore, the Defendants should be entitled to at least the same amount of time to perform discovery and trial preparation as the other defendants after evaluation of the massive materials to be delivered in the future. The other defendants in this action had approximately seven (7) extra months to react, conduct research, develop discovery, conduct interrogatories, and attend the many depositions conducted by the Government. The Moving Defendants

8 9 10 11 12 13 14 15 16 17 18 The Supreme Court said: 19 20 21 22 23 24 25 26 27 7 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

should be allowed the same amount of time given to the other defendants to conduct discovery, perform research, and adequately prepare for trial. Under the current facts, deadlines, and procedure, harm is not only great, but fatal with respect to defending the civil action. II. THE DUE PROCESS CLAUSE, INCLUDING AS IMPLEMENTED IN THE FRCP, REQUIRES THE GRANT OF THE REQUESTED CONTINUANCE The Court is required to grant the requested continuance on an independent basis of a showing of fundamental unfairness. The leading case is Nelson v. Adams USA, Inc., 529 U.S. 460 (2000). This case made important corner stone rulings that apply to any civil action.

"The Federal Rules of Civil Procedure are designed to further the due process of law that the Constitution guarantees" (Id. at 465.); "all of the Federal Rules of Civil Procedure must be followed to get a judgment" (Id. at 470); that all parties must be given all of their rights under the FRCP even if it can be shown that the requesting party will not prevail (Id. at 471); and

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 10 of 15

1 2 3 4 5 6 7

that an appeal is not an adequate remedy for an opportunity to defend against the imposition of liability (Id. at 466). Nelson involved a patent infringement civil action. The civil action was dismissed in favor of the defendant Adams USA, Inc. Id. at 463. The District Court granted an award of attorney's fees in favor of the Adams USA, Inc. Id. The defendant, Adams USA, Inc., was afraid that the plaintiff OCP Corporation might be unable to pay the attorney's fees. Id. Consequently, the defendant, Adams USA, Inc., moved under FRCP Rule 15 to amend its

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 test is "fundamental unfairness." Id. at 470. The Court did not indicate that prejudice is 23 24 25 26 27 8 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

pleading to add Nelson as a party. Id. Nelson was OCP's president and sole-shareholder. Id. Simultaneously, Adams moved, under Rule 59(e), to amend the fee award judgment to include Nelson. Id. The District Court granted both motions in full, i.e. simultaneously making Nelson a party and subjecting Nelson to judgment as a co-debtor. Id. The Court of Appeals affirmed. The U.S. Supreme Court granted Nelson's appeal and reversed. The Court held that amending the judgment to include Nelson at the same time the District Court permitted the amendment of the pleading was fundamentally unfair. Due process as implemented in the FRCP required that a defendant be given the "right to have time and opportunity to respond to [a civil action]." Id. at 469. (Emphasis added). Regarding the due process rights as implemented in the FRCP, the Court said that the

required to be shown. Id. Therefore, the standard of review is "fundamental unfairness." In the instant case, the denial of a continuance would be fundamentally unfair. The Moving Defendants do not have the same amount of time as the other defendants to make non-

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 11 of 15

1 2 3 4 5 6 7

dispositive and dispositive motions, conduct investigations, conduct discovery, and prepare for trial as guaranteed by the FRCP. The other defendants have had seven (7) extra months to exercise their rights under the FRCP. The government has taken years of investigation and preparation, including using IRS administrative summons and other investigative tools. Unfairness exists as well due to the fact that most of the major critical deadlines have or are about to run while the Moving Defendants are still in the pleading stage. Two of the imminent deadlines have run, including the ability to amend pleadings and designate experts.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 entitled to with respect to any civil penalty imposition. 23 24 25 26 27 9 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

Also, when the Defendants were joined as a party the government had already taken discovery. Despite the efficient and diligent speed with which the Defendants are moving, a continuance is necessary because of the imminence of the current deadlines. This current situation is due to no fault of the Moving Defendants, but can only be attributed to the lateness with which the government chose to join the Defendants as a party and the continued enforcement of a schedule order treating the Moving Defendants as if they had been named and served under the original complaint. The courts in conducting their proceedings are required to conduct them so that the courts are not infringing on the constitutional rights of the parties. The courts are also required to conduct their proceedings in a manner to avoid these types of constitutional issues. By granting the continuance, the court would also avoid the situation of whether a civil injunction would deny the Defendants their constitutional right to a jury trial, which they are

A stipulation has been signed by the parties that extends the deadlines as follows: The date to amend the pleading will be continued from June 5, 2008 to December 5, 2008.

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 12 of 15

1 2 3 4 5 6 7

The expert disclosure date will be continued from August 20, 2008 to December 20, 2008. The non-expert discovery cut-off will be continued from September 3, 2008 to January 3, 2009. The expert discovery cut-off will be continued from October 1, 2008 to February 1, 2009. The deadline to hear dispositive motions will be continued from November 19, 2008 to

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the Moving Defendants and Defendants have not yet had an opportunity to analyze any of the 23 24 25 26 27 10 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

February 19, 2009. This stipulation is without prejudice to any party's right to bring a motion for a further modification of the Court's case management and pretrial orders or for a continuance of the trial date. This stipulation was rejected by the Court. All parties acknowledge in the stipulation that written discovery has been much more extensive than had been anticipated and the parties need additional time to evaluate the various claims and defenses raised and to conduct additional necessary discovery. The stipulation points to the fact that the Plaintiff has produced eight (8) digital discs containing 363,159 separate files. Some of these files are multi-page files, including one file consisting of 692 pages. Furthermore, Discs 7 and 8, which contain a total of 105,743 separate files, were just recently produced on July 18, 2008. Again, only two of the eight discs have been provided to

documents. The Moving Defendants would be unable to evaluate meaningfully the above documents and to conduct any necessary follow-up investigation and discovery under the

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 13 of 15

1 2 3 4 5 6 7

existing deadlines. The Moving Defendants are barred from taking affirmative discovery. The Moving Defendants wish to state their needs as clearly as possible. Therefore, the Court should grant the extension of the deadlines by seven (7) months to give the Moving Defendants the same amount of time as the other parties, including future dispositive motions. CONCLUSION The Court, with all due respect, is required to continue the trial date and the related

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 11 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

deadlines. It should give equal time to the Moving Defendants. Fundamental fairness as applied to the FRCP leaves the Court no other choice. Any denial also constitutes an abuse of discretion. The new requested deadlines are based on the seven (7) months and five (5) days of extra time that the other defendants had to prepare, and are as follows: 1. 2. 3. 4. 5. 6. The last day to amend pleadings would be May 10, 2009. The cut-off date for the designation of experts would be July 25, 2009. The cut-off date for non-expert discovery would be August 8, 2009. The cut-off date for expert discovery would be September 6, 2009. Dispositive motions would be heard by October 24, 2009. Trial would set for February 28, 2010.

Due to the Court's double and triple booking for trials for 2009, an early setting in 2010 will be more appropriate and convenient for the Court.

Dated: August 25, 2008

Respectfully Submitted, ORD & NORMAN By /s/ Edward O.C. Ord Edward O.C. Ord, Esq. Attorneys for Defendants Charles Hsin and Optech Limited

T:\Clients\7118\Motions\Motion to continue case management schedule order MPA.doc

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 14 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Yuri Debevc (pro se) 1483 Burningtree Road Charleston, SC 29412

CERTIFICATE OF SERVICE I hereby certify that on August 25, 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 Matthew Hicks ([email protected]) Daniel Rosenbaum ([email protected]) Caplin & Drysdale One Thomas Circle, NW, Suite 1100 Washington, D.C. 20005 Attorneys for Defendant Scott Cathcart 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 9157 W. Sunset Blvd., Suite 310 Los Angeles, California 90069 ([email protected]) Attorney for Defendant Charles Cathcart

I further certify that on August 13, 2008, service of the foregoing was made upon the following by depositing a copy in the Unites States mail, postage prepaid:

/s/ Edward O.C. Ord____ 27 12 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER

Case 3:07-cv-04762-PJH

Document 101

Filed 08/25/2008

Page 15 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 13 28

EDWARD O.C. ORD

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS HSIN AND OPTECH LIMITED'S ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7-11 TO CONTINUE THE ENTIRE CASE MANAGEMENT SCHEDULE ORDER