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Steven A. Gray v. United States of America; and Does 1 Through 30

UNITED STATES DISTRICT COURT NORTHERN DISTRICT CALIFORNIA SAN FRANCISCO DIVISION


September 8, 2011

STEVEN A. GRAY,
PLAINTIFF ,
v.
UNITED STATES OF AMERICA; AND DOES 1 THROUGH 30, INCLUSIVE.
DEFENDANT. UNITED STATES OF AMERICA,
COUNTER-CLAIMANT,
v.
MANUEL MARTINEZ AND STEVEN A. GRAY
COUNTER-DEFENDANTS

The opinion of the court was delivered by: Honorable Samuel Conti United States District Court Judge

Andrea D. McGary, CA SBN 215703 THE McGARY FIRM Attorneys At Law 505 Montgomery Street, 11th FL San Francisco, CA 94111 Email: assistance@themcgaryfirm.com Telephone: (415) 874-3500 Facsimile: (877) 243-9183 Attorneys for Plaintiff and Counter-Defendant Steven A. Gray MELINDA HAAG (CABN 132612) Jeffrey A. Titus, (CA SBN 114148) United States Attorney P.O. Box 6772 THOMAS MOORE (ALBN 4305-O78T) Santa Rosa, CA 95406 Assistant United States Attorney Chief, Tax Division Tel: (707) 703-5619 9th Floor Federal Building Fax: (707) 569-9183 450 Golden Gate Avenue, Box 36055 Email: jaitken@sonic.net San Francisco, California 94102 Attorney For Counter-Defendant Manuel D. Martinez Telephone: (415) 436-7017 Fax: (415) 436-7009 Attorneys for the Defendant / Counter-Claimant United States of America

STIPULATION & [PROPOSED] ORDER TO CONTINUE PRETRIAL AND TRIAL DEADLINES

Case filed: February 15, 2011

STATES OF AMERICA (sometimes hereinafter "Defendant USA"), and Counter-Defendant MANUEL D. MARTINEZ (sometimes hereinafter "Counter-Defendant MARTINEZ") by and 5 through their attorneys of record, that GOOD CAUSE exists and the parties request that the Court 6 continue the pretrial and trial deadlines based on the following:

IT IS HEREBY STIPULATED by and between Plaintiff/ Counter-Defendant STEVEN A. GRAY (sometimes hereinafter "Plaintiff GRAY"), Defendant/Counter-Claimant UNITED 3

1. The suit involves liability for the Trust Fund Recovery Penalty for quarters ending March 31, 2007, September 30, 2007, December 31, 2007, March 31, 2008, and June 2008 as to 9 federal employment taxes owed by Ace Roofing, Inc., a California corporation owned by Manuel 10

2. Plaintiff/ Counter-Defendant GRAY disputes allegations that he was a responsible 12 officer of Ace Roofing, Inc. and allegations that he willfully failed to collect, account for or turn 13 over withholding and F.I.C.A. taxes with respect to Ace Roofing's employees for said periods.

Mr. GRAY asserts that he was not a "Responsible Person" nor was he "Willful" within the 15 meaning of 26 U.S.C § 6672 and the applicable court cases there under, nor under any other 16 federal law provision. Counter-Defendant MARTINEZ seeks a determination that he is not liable 17 as a "responsible person" under the Internal Revenue Code Section 6672 for payment of taxes or 18 penalties owed by Ace Roofing, Inc. Martinez.

3. Plaintiff GRAY has filed a Certification of Interested Entities or Persons as follows:

Name Connection or Interest

ACE ROOFING, INC., a California Principal debtor failing to tender

corporation federal employment taxes due to Agent For Service Process -- Manuel D. Defendant United States of America Martinez

MANUEL D. MARTINEZ Principal debtor failing to tender 9065 Lakewood Drive federal employment taxes due to Windsor, CA 95492 Defendant United States of America MADELINE M. MARTINEZ Spouse of Principal debtor failing to 9065 Lakewood Drive tender federal employment taxes Windsor, CA 95492 due to Defendant United States of America and transferee of assets belonging to MANUEL MARTINEZ AND ACE ROOFING, INC.

4. Counter-Defendant MARTINEZ has filed a Certification of Interested Entities or Persons as follows: 3 4

Name Interest

ACE ROOFING, INC., a California Principal liable for underlying tax. corporation MADELINE M. MARTINEZ Spouse MANUEL MARTINEZ 9065 Lakewood Drive Windsor, CA 95492

5. Pursuant to Federal Rule of Civil Procedure 16(b)(4), good cause exist for the Court to modify the July 22, 2011 Status Conference Order Setting Times For Compliance With Certain Rules of Court.

6. At the time of the Initial Status Conference, the parties were engaged in settlement negotiations and expected that this matter would be resolved via settlement. Such expectation 13 was disclosed on the record to the Honorable Judge Conti. 14

7. Although the parties agreed to early neutral evaluation in the joint case management 15 statement filed herein on July 12, 2011, no mediation or other alternative dispute resolution 16 orders have been issued. On July 22, 2011, expedited trial and trial related deadlines were set 17 based on the Court's and the named parties' settlement expectations and belief that this case could 18 be handled on an expedited basis with streamlined procedures assuming availability of pertinent 19 IRS officers and employees for deposition and other discovery responses. 20

8. Settlement: Settlement negotiations have stalled and the parties have resumed the 21 discovery process. This case can no longer be handled on an expedited basis with streamlined 22 procedures for additional reasons discussed herein above and below. The expected length of trial 23 in this matter is four (4) days. 24

9. Joinder of Parties & Amendment To Pleadings: Plaintiff contends that not all 25 necessary and indispensable parties have been joined.*fn1 26

10. Counter-Defendant MANUEL MARTINEZ did not appear in the above captioned matter until June 20, 2011 and the expedited calendar does not provide sufficient time to prepare 2 for trial. 3

11. Early Neutral Evaluation Request: Plaintiff requests referral to mediation in these 4 matters. 5

12. The parties are mindful of and respectful of the Court's July 22, 2011 Status Conference Order Setting Times For Compliance With Certain Rules of Court ("Status 7 Conference Order") but continuing the discovery cut-off and pretrial deadlines is necessary for 8 effective completion of discovery, participation in early neutral evaluation, and preparation for 9 trial. 10

13. Based on the foregoing, the parties respectfully request that this Court 1) modify its July 22, 2011 Status Conference Order, 2) continue the current discovery cut-off and all pre-trial 12 and trial related dates for at least ninety (90) days including but not limited to the dates requested 13 below, and 3) issue an order directing the parties to mediation:

Current Deadline Proposed Deadline Discovery Cut-Off October 5, 2011 January 4, 2012 Motion Hearing Cut- October 21, 2011 January 20, 2012 Off

Pre-Trial Conference November 29, 2011 February 28, 2012 Trial December 5, 2011 March 5, 2012

ORDER

Upon consideration of the parties' Stipulation And [Proposed] Order To Continue Pretrial And Trial Deadlines, and good cause appearing therefor,

IT IS HEREBY ORDERED that the pretrial and trial deadlines be continued as follows:

Previous Deadline Revised Deadline Mediation/Early Neutral Evaluation Discovery Cut-Off October 5, 2011 January 5, 2012 Motion Hearing Cut-Off October 21, 2011 January 13, 2012

Pre-Trial Conference November 29, 2011 February 24, 2012 Trial December 5, 2011 March 5. 2012

IT IS SO ORDERED.

IT IS SO ORDERED


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