MOTION FOR AN EXTENSION OF TIME

XXX

XXX

XXX

Plaintiffs, pro se

 

 

XXX

GROUND,

Plaintiffs,

vs.

 

INTERNAL REVENUE SERVICE

Defendant

 Case No.: XXX

MOTION FOR AN EXTENSION OF TIME

 

 

 

Pursuant to Ariz. R. Civ. P. 6(b)(1) (B) & (C), Plaintiffs Dale Ground and XXX Ground herein, pro se, respectfully move to this Court to accept their First Amended. This is the first request for this relief. Defendant does not consent to the alleged late filing. Due to an inadvertent calendaring error, Plaintiffs did not file their First Amended Complaint within the time. Plaintiffs therefore make this application, and state as follows:

  1. Procedural Background
  2. Plaintiffs filed the instant action on May XXX. The Defendant was served on May XXX, and an Affidavit of Service filed in Court accordingly,
  3. On May XXX, Defendant filed a Motion to Transfer the case to the Tax Court. Defendant also filed an Answer and Counterclaim on the same day.
  4. On June XXX, Plaintiffs filed their First Amended Complaint.
  5. On or about June XXX, Plaintiffs received a ruling from the Superior Court, which granted Defendant’s Motion to Transfer the case to the Tax Court, and the matter was transferred to the Tax Court. The decision was entered in the records on June XXX.
  6. On July XXX, Defendant filed an Application for an Entry of Default.
  7. On July XXX, Defendant filed a Motion to Strike Plaintiff’s First Amended Complaint.
  8. Plaintiffs then received a call from the Arizona Attorney General. They were trying to get Plaintiffs to meet with the IRS.
  9. The Attorney General stated that Plaintiffs had passed 25 days to file the First Amended Complaint, and that Plaintiffs would have to get Defendant’s and the IRS’ approval to file the amended complaint.
  10. Plaintiff therefore files this Motion to explain the alleged late filing of the First Amended Complaint.
  11. Arguments
  12. The court for cause shown may at any time in its discretion, upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect .XXX. Neglect is excusable when “the neglect or inadvertence is such as might be the act of a reasonably prudent person under the same circumstances.”XXX.
  13. The excusable neglect test has been applied on a case-by-case basis in cases of clerical and secretarial error, and legal error where the state of the law is “muddled or confused.” XXX (noting case-by-case application and that neglect may be excusable if due to legal error in certain cases); XXX  (declaring a lawyer’s misreading of date on minute entry was a type of clerical error constituting excusable neglect); Coconino, 83 Ariz. at 121 (a secretary’s failure to distribute calendar sheet containing reminder of answer deadline was excusable neglect).
  14. Plaintiffs filed the First Amended Complaint about 4-5 days after the 25 days.
  15. The delay in filing the First Amended Complaint resulted from Defendant’s request to have the case moved to this court. Plaintiffs were not sure where to file it since they requested the move to another court, until they received the Court Order that granted Defendant’s motion to transfer the case.
  16. It is Plaintiffs’ assertion that the foregoing amounts to excusable neglect. First, Plaintiffs were in limbo after Defendant filed their request to have the case transferred. As Plaintiffs were contemplating how to proceed, they ended up filing the Amended Complaint around 4-5 days after the 25 days.
  17. Second, there is no prejudice to Defendant in allowing the First Amended Complaint. Because of the procedural posture of this case, and the fact that Defendant had filed for a Motion to Transfer the case to this Court before filing their Answer and/or Counterclaim, the Court does not believe that considering Plaintiff’s First Amended Complaint will prejudice the Defendant or unnecessarily prolong this litigation.
  18. Next, the First Amended Complaint was only 4 to 5 days late. This is a negligible delay.

WHEREFORE, the foregoing premises considered, Plaintiffs request this Court grant this Motion and accept Plaintiffs’ First Amended Complaint as duly filed. On the alternative, Plaintiffs request this Court allow Plaintiffs leave to refile the First Amended Complaint.

 

Respectfully submitted this [DATE],

 

 

CERTIFICATE OF SERVICE

Original e-filed with the Clerk of Court on this date [ENTER DATE]. A copy has been or will be sent to the Defendant via ______________ on [ENTER DATE] to:

 

XXX

Telephone:  XXX

XXX

XXX

DATED:

___________________

Dale Ground

 

__________________

XXX

 

 

 

 

 

 

 

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