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United States of America v. Kelly H. Cooper

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 3, 2012

UNITED STATES OF AMERICA, PETITIONER,
v.
KELLY H. COOPER, RESPONDENT.

ORDER

This action was referred to the undersigned under Eastern District of California Local Rule 302(c)(9), pursuant to 28 U.S.C. § 636(b)(1). On October 22, 2012, the undersigned issued an order directing respondent to appear on December 12, 2012 to show cause why she should not be compelled to obey the Internal Revenue Service summons issued on April 27, 2012. Dckt. No. 5. The order also appointed the investigating Internal Revenue Service employee, and all federal employees designated by that employee, to serve process in this case, and stated that a copy of that order, the Verified Petition and its Exhibit, and the Points and Authorities, shall be served by delivering a copy to the respondent personally, or by leaving a copy at the respondent's dwelling or usual place of abode with some person of suitable age and discretion then residing therein, or by any other means of service permitted by Federal Rule of Civil Procedure 4(e), within 21 days of the date that order was served upon the United States Attorney, unless such service could not be made despite reasonable efforts. Id. at 2. Proof of service was to be filed as soon as practicable and at least 14 days prior to the date set for the show cause hearing. Id. The order added that if the federal employee assigned to serve was not reasonably able to serve the papers as provided, petitioner could request a court order granting leave to serve by other means upon the filing of a certificate detailing the efforts made within the 21-day period to serve the respondent as provided. Id.

The order further provided that if the respondent has any defense or opposition to the petition, such defense or opposition shall be made in writing and filed with the Clerk and a copy served on the United States Attorney at least 14 days before the date set for the show cause hearing. Id. at 3. The order added that respondent may notify the Court, in a writing filed with the Clerk and served on the United States Attorney at least 14 days before the date set for the show cause hearing, that the respondent has no objections to enforcement of the summons, and that respondent's appearance at the hearing would then be excused. Id.

On November 29, 2012, petitioner filed a request that the show cause hearing on the order to show cause be continued to January 16, 2013. Dckt. No. 6. Petitioner indicated that in a telephone conference on November 29, 2012, respondent agreed to the continuance. Id. Therefore, the request for a continuance will be granted. However, because petitioner did not request a court order granting leave to serve by other means and did not file a certificate detailing the efforts made within the 21-day period to serve the respondent as provided in the October 22, 2012 order, the service requirements set forth in that order will not be modified at this time.

Accordingly, IT IS HEREBY ORDERED that:

1. The December 12, 2012 show cause hearing is continued to January 16, 2013 at 10:00 a.m. in Courtroom No. 8.

2. If respondent has any defense or opposition to the petition, such defense or opposition shall be made in writing and filed with the Clerk and a copy served on the United States Attorney at least 14 days before the date set for the show cause hearing.

3. Respondent may notify the Court, in a writing filed with the Clerk and served on the United States Attorney at least 14 days before the date set for the show cause hearing, that the respondent has no objections to enforcement of the summons. If respondent does so, respondent's appearance at the hearing is excused.

4. Petitioner shall serve a copy of this order on respondent within 14 days of the date of the order.

5. As soon as practicable and at least 14 days prior to the date set for the show cause hearing, petitioner shall file a proof of service of this order, as well as the October 22, 2012 order, the Verified Petition and its Exhibit, and the Points and Authorities.

SO ORDERED.

20121203

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