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United States v. Clingenpeel

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 20, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RAY CLINGENPEEL; SHIRLEY A. CLINGENPEEL; TUFFY RUFFY TRUST BY DAVID K. JACOBS, TRUSTEE TRUSTEE; SUSAN BELL TRUST BY AND/OR BY ANITA MORRISON, BY ANITA MORRISON, TRUSTEE; ATEL DAVID K. JACOBS, TRUSTEE; AND/OR RESIDENTIAL CREDIT SOLUTIONS; CALIFORNIA FRANCHISE TAX BOARD, CAPITAL GROUP; STATE OF TASHIMA FAMILY TRUST BY MIKIYE CITIBANK (SOUTH DAKOTA) NA; TASHIMA, TRUSTEE, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

SCHEDULING CONFERENCE ORDER

Cut-Off: 7/15/10

Non-Dispositive Motion Filing Deadline: 9/1/10

Deadline: 9/20/10

Dispositive Motion Filing

Settlement Conference Date:

None

Pre-Trial Conference Date: 11/29/10 11:00 Ctrm. 3

Trial Date: 1/4/11 9:00

Ctrm. 3 (CT-5 days)

I. Date of Scheduling Conference. August 20, 2009.

The State of California Franchise Tax Board has filed a disclaimer.

Citibank South Dakota NA has not yet been served.

The Tashima Family Trust has filed a disclaimer of interest as their lien has been fully paid.

Ray Clingenpeel did not appear.

III. Summary of Pleadings

1. This is a civil action brought by the United States of America: (a) to reduce to judgment federal tax assessments against Ray Clingenpeel and Shirley A. Clingenpeel ("taxpayers") for the taxable years ending December 31, 1996 through 2000; (b) to adjudicate that the Tuffy Ruffy Trust and Susan Bell Trust are nominees, alter egos, and fraudulent transferees of the taxpayers; (c) to adjudicate that Tuffy Ruffy Trust and Susan Bell Trust are sham trusts; and (d) to foreclose federal tax liens against two parcels of real property.

2. The taxpayers deny that they made any fraudulent transfers; deny that Tuffy Ruffy Trust and Susan Bell Trust are nominees, alter egos, or fraudulent transferees of the taxpayers; deny that Tuffy Ruffy Trust and Susan Bell Trust are sham trusts; and deny the amount of the federal tax assessments against the taxpayers are accurate.

3. The remaining Defendants - Atel Capital Group, Residential Credit Solutions, Citibank South Dakota NA - are named only because they may claim an interest in the subject property. The United States anticipates that a stipulation determining priority will be prepared early in this case and that an Order disbursing proceeds will be entered after the sale of the subject property.

IV. Orders Re Amendments To Pleadings

1. The parties do not anticipate amending the pleadings at this time.

2. The parties do not anticipate joining any additional parties.

V. Factual Summary

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings

1. The United States of American sues, as sovereign, to enforce Federal tax assessments.

2. Ray Clingenpeel is an individual resident of the Eastern District of California, Fresno Division.

3. Shirley A. Clingenpeel is an individual resident of the Eastern District of California.

4. Anita Morrison is an individual resident of the Eastern District of California and acts as the trustee for the Tuffy Ruffy Trust and Susan Bell Trust.

5. Atel Capital Group is a creditor of record claiming a lien interest in real property alleged to be owned by Ray and/or Shirley A. Clingenpeel.

6. Citibank South Dakota NA is a creditor claiming some interest in or to the real property subject of this action.

B. Contested Facts

1. Whether the taxpayers are liable for the tax assessments at issue.

2. Whether the Tuffy Ruffy Trust and Susan Bell Trust hold the taxpayers' business property and personal residence as nominees, alter egos, or fraudulent transferees of the taxpayers.

3. Whether the Tuffy Ruffy Trust and Susan Bell Trust may be disregarded as sham trusts so that the Federal tax liens may be enforced against the taxpayers' property.

VI. Legal Issues

A. Uncontested

1. Jurisdiction exists under 28 U.S.C. §§ 1340 and 1345 and pursuant to 26 U.S.C. §§ 7402 and 7403.

2. Venue is proper under 28 U.S.C. §§ 1391(b) and 1396 because the tax assessments accrued within this judicial district. The taxpayers reside within this judicial district, and the real property the United States seeks to foreclose is located within this judicial district.

3. The parties agree that the substantive law of the State of California provides the rule of decision as to supplemental issues.

B. Contested

1. All remaining legal issues are contested.

VII. Consent to Magistrate Judge Jurisdiction

1. The parties have not consented to transfer the case to the Magistrate Judge for all purposes, including trial.

VIII. Corporate Identification Statement

1. Any non-governmental corporate party to any action in this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information.

IX. Discovery Plan and Cut-Off Date

1. The parties shall make their Rule 26 initial disclosures on or before October 1, 2009.

2. The parties are ordered to complete all discovery on or before July 15, 2010.

3. The parties are directed to disclose all expert witnesses, in writing, on or before January 15, 2010. Any rebuttal or supplemental expert disclosures will be made on or before April 15, 2010. The parties will comply with the provisions of Federal Rule of Civil Procedure 26(a)(2) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written designation of experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. Failure to designate experts in compliance with this order may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order.

4. The provisions of F. R. Civ. P. 26(b)(4) shall apply to all discovery relating to experts and their opinions. Experts may be fully prepared to be examined on all subjects and opinions included in the designation. Failure to comply will result in the imposition of sanctions.

X. Pre-Trial Motion Schedule

1. All Non-Dispositive Pre-Trial Motions, including any discovery motions, will be filed on or before September 1, 2010, and heard on October 4, 2010, at 9:00 a.m. before Magistrate Judge Dennis L. Beck in Courtroom 9.

2. In scheduling such motions, the Magistrate Judge may grant applications for an order shortening time pursuant to Local Rule 142(d). However, if counsel does not obtain an order shortening time, the notice of motion must comply with Local Rule 251.

3. All Dispositive Pre-Trial Motions are to be filed no later than September 20, 2010, and will be heard on October 29, 2010, at 10:00 a.m. before the Honorable Oliver W. Wanger, United States District Judge, in Courtroom 3, 7th Floor. In scheduling such motions, counsel shall comply with Local Rule 230.

XI. Pre-Trial Conference Date

1. November 29, 2010, at 11:00 a.m. in Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge.

2. The parties are ordered to file a Joint Pre-Trial Statement pursuant to Local Rule 281(a)(2).

3. Counsel's attention is directed to Rules 281 and 282 of the Local Rules of Practice for the Eastern District of California, as to the obligations of counsel in preparing for the pre-trial conference. The Court will insist upon strict compliance with those rules.

XII. Motions - Hard Copy

1. The parties shall submit one (1) courtesy paper copy to the Court of any motions filed that exceed ten pages and any motions that have exhibits attached. Exhibits shall be marked with protruding numbered or lettered tabs so that the Court can easily identify such exhibits.

XIII. Trial Date

1. January 4, 2011, at the hour of 9:00 a.m. in Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge.

2. The taxpayers have demanded trial on all issues that are triable to a jury. The government maintains that the taxpayers are entitled to jury trial on the amount of tax, not on foreclosure issues which are equitable.

3. Counsels' Estimate Of Trial Time:

a. 5 days.

4. Counsels' attention is directed to Local Rules of Practice for the Eastern District of California, Rule 285.

XIV. Settlement Conference

1. A Settlement Conference is not scheduled at this time. If the parties believe a Settlement Conference will be helpful, they are directed to contact Magistrate Judge Beck's chambers to schedule same.

2. Unless otherwise permitted in advance by the Court, the attorneys who will try the case shall appear at the Settlement Conference with the parties and the person or persons having full authority to negotiate and settle the case on any terms at the conference.

3. Permission for a party [not attorney] to attend by telephone may be granted upon request, by letter, with a copy to the other parties, if the party [not attorney] lives and works outside the Eastern District of California, and attendance in person would constitute a hardship. If telephone attendance is allowed, the party must be immediately available throughout the conference until excused regardless of time zone differences. Any other special arrangements desired in cases where settlement authority rests with a governing body, shall also be proposed in advance by letter copied to all other parties.

4. Confidential Settlement Conference Statement.

At least five (5) days prior to the Settlement Conference the parties shall submit, directly to the Magistrate Judge's chambers, a confidential settlement conference statement. The statement should not be filed with the Clerk of the Court nor served on any other party. Each statement shall be clearly marked "confidential" with the date and time of the Settlement Conference indicated prominently thereon. Counsel are urged to request the return of their statements if settlement is not achieved and if such a request is not made the Court will dispose of the statement.

5. The Confidential Settlement Conference Statement shall include the following:

a. A brief statement of the facts of the case.

b. A brief statement of the claims and defenses, i.e., statutory or other grounds upon which the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on the claims and defenses; and a description of the major issues in dispute.

c. A summary of the proceedings to date.

d. An estimate of the cost and time to be expended for further discovery, pre-trial and trial.

e. The relief sought.

f. The parties' position on settlement, including present demands and offers and a history of past settlement discussions, offers and demands.

XV. Request For Bifurcation, Appointment Of Special Master, Or Other Techniques To Shorten Trial

1. None.

XVI. Related Matters Pending

1. There are no related matters.

XVII. Compliance With Federal Procedure

1. The Court requires compliance with the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the court in the efficient administration of this case, all counsel are directed to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and keep abreast of any amendments thereto.

XVIII. Effect Of This Order

1. The foregoing order represents the best estimate of the court and counsel as to the agenda most suitable to bring this case to resolution. The trial date reserved is specifically reserved for this case. If the parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent scheduling conference.

2. Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested.

3. Failure to comply with this order may result in the imposition of sanctions.

IT IS SO ORDERED.

20090820

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