Attorney-at-Law

DAYENU

In Uncategorized on 12/30/2014 at 16:18

If the title of this post strikes the reader as obscure, let the reader first read Judge Buch’s order in Judith L. Heavens, Docket No. 29155-13, filed 12/30/14; if still befogged, let the reader search the term on Wikipedia (and make a pecuniary contribution to Mr. Jimmy Wales’ useful source). Now all should be clear.

For those who can’t wait, Judith filed a motion to dismiss for want of jurisdiction two weeks ago. She was a wee bit late, as her case had been called for trial three days before (which was the date set for trial in an order issued five months earlier). Judith hadn’t shown, and her petition was tossed for want of prosecution.

So for Judge Buch to consider Judith’s latest, he’d have to vacate his previous order. But this he declines to do.

I cannot do better than to quote Judge Buch’s rationale in extenso, while inviting readers to clap hands rhythmically or tap them on a diningroom table, if so inclined.

“We need not reach the merits of petitioner’s motion. Petitioner’s motion to dismiss is predicated on respondent’s alleged failure to respond to informal discovery. Petitioner never resorted to formal discovery, and had she, the proper motion would have been a motion to compel. See Rules 104(b). The motion being improper, standing alone, would be sufficient grounds upon which to deny the motion. If the motion had been styled properly, the failure to resort to formal discovery, standing alone, would have been sufficient grounds to deny that motion. If petitioner had engaged in formal discovery and filed the proper motion, the motion would have been untimely. Any such motion was due 45 days before the date set for trial. Rule 70(a)(2). The untimeliness of the motion, standing alone, would have been sufficient grounds upon which to deny the motion. If petitioner had engaged in formal discovery, filed the proper motion, and done so in a timely manner, the Court would likely reach the merits of that motion. In doing so, the Court would review the underlying discovery requests and note that it is largely, if not entirely, not the proper subject of discovery. It instead largely calls for legal conclusions and is infused with protestor rhetoric that we have rejected repeatedly. Many of the fallacies underlying the issues raised in the informal discovery were addressed in Waltner v. Commissioner, T.C. Memo 2014-35. If petitioner had engaged in formal discovery, filed the proper motion, and done so in a timely manner, the motion would have been denied on the merits.” Order, at pp. 1-2. (Footnote omitted, but see below).

The omitted footnote: “Petitioner’s motion and its annexed exhibit refer to informal discovery. The informal discovery might alternatively be characterized as stipulations or admissions. Regardless, petitioner never made a formal request for admissions and did not file any admissions with the Court. See Rule 90(b). Thus, whether couched as discovery, stipulations, or admissions, petitioner’s motion fails.” Order, at p. 2, Footnote 1.

For more about Steve Waltner, whose misdoings are hereinabove alluded to, see my blogpost “Cracking Up”, 2/27/14, wherein Judge Buch unloads on Steve the Protestor (protester? protestant?) for 63 pages of “somber reasoning and copious citation of precedent”.

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