“Do It Yourself’

That’s Judge Gale’s motto, as we saw in my blogpost “Even The Baristas Can’t Get It Right,” 3/29/21. And he stands by the same, as he revisits (metaphorically, of course, as Ragh is still in the slammer) Kiran Rawat, Petitioner and Raghvendra Singh, Intervenor, Docket No. 11350-18, filed 5/18/21.

Judge Gale has plenty to do. First, he must correct IRS’ answer. Judge Gale told IRS to move for summary J, and they did; but they got their papers wrong.

“…respondent has moved for partial summary adjudication in his favor based on, among other things, the doctrine of res judicata. However, Rule 39 provides that an affirmative defense such as res judicata must be ‘set forth in the party’s pleading’. This defense does not appear to be in the Answer, and respondent has not moved for leave pursuant to Rule 41(a) to amend the Answer to assert this defense.” Order, at p. 1.

So if IRS still wants to assert res judicata, they should move for leave per Rule 41(a), lodge and serve the proposed amended answer on Kiran and Ragh; if the latter have anything to say, they can do so, but Judge Gale tells Kiran what to put in any response she may make to IRS’ hypothetical motion for leave to amend.

“Petitioner’s response shall explain how the granting of respondent’s motion for leave to amend the answer would result in prejudice to petitioner. In view of the fact that respondent’s Motion for Partial Summary Judgment filed on March 23, 2021, has put petitioner on notice of the issue of res judicata and afforded her an opportunity to assert her position against its application in this case, the prejudice that petitioner must show is not how the application of res judicata would disadvantage her, but rather how the raising of the issue in May 2021, rather than in August 2018, when the Answer was filed, would disadvantage her. Petitioner’s response shall also explain how any prejudice could be remedied, if respondent’s motion for leave to amend the answer were to be granted.” Order, at p. 2.

Meantime, the case is on for Zoomie trial before the motion for leave to amend (if any) gets served and Kiran and Ragh respond (if they do). So what to do? Trust Judge Gale; a lesser jurist might continue the trial, but not he.

Judge Gale orders “…the scope of the remote trial in this case at the Knoxville, Tennessee trial session, at a date and time certain of 1:00 p.m. (EDT) on June 8, 2021, shall be limited to the issue of whether petitioner is entitled to equitable relief from joint and several liability pursuant to section 6015(f) for the 2010 taxable year.” Order, at p. 3.

And he tells the Clerk to serve Ragh at the address Judge Gale sussed out in March.