In Uncategorized on 03/13/2020 at 18:45

Saved by the Virus

Judge Courtney D. (Watch This Space) Jones has the cure for last-minute ambushes launched from late-filed amended pleadings. Here, IRS wants to amend its answer eighteen (count ‘em, eighteen) days before trial.

“Whether a party may amend its answer lies within the sound discretion of the Court.  In determining the justice of allowing a proposed amendment, the Court must examine the particular circumstances of the case, and consider, among other factors (1) whether an excuse for the delay exists; and, (2) whether the opposing party would suffer unfair surprise, disadvantage, or prejudice.” Kevin John, Sr. & Whitney S. Witasick, Docket No. 23069-16, filed 3/13/20, at pp. 1-2. (Footnote and citation omitted).

IRS claims the SNOD that kicked off this dust-up was flawed because it contained a “clerical and reporting error,” and so wishes to amend.

Judge Jones isn’t happy. “The Court is troubled by respondent’s motion. The notice of deficiency at issue is dated July 26, 2016, but respondent’s motion was not filed until more than 3 years later. In the years since the petition was filed, respondent has had ample time to identify and seek correction of its ‘clerical and reporting’ error. Petitioners’ frustration on this score is understandable. Further, this case is facing its sixth continuance, and respondent’s motion comes only 18 days prior to the (since canceled) trial.” Order, at p. 3.

A continuance (that’s an adjournment, to you State courtiers) cures unfair surprise, as the surprised party can regroup and recalibrate. And just because an amended pleading makes it harder or more expensive for the erstwhile ambushee to win is no reason to deny the amendment, as long as ambushee has time to prepare.

Judge Jones held a phoneathon, at which Kev suggested a continuance from the March trial date to April. IRS was prepared to buy the April trial date. But this was before the Corona virus intervened to quash the March trial in Philly.

So Judge Jones is unwilling to set a new trial date until the parties have stiped and settled what they can. And reported thereon in May.

IRS is saved by the virus.





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