UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
Norman H. )
Plaintiff, )
v. ) Case No. 1:09 xxx
United States and, )
Spectrum Bank )
Respondents. )
Under Rule 60(b) of the Federal Rules of Civil Procedure, Plaintiff hereby files this timely Motion to Vacate the Court’s Order of November 20, 2009 dismissing Plaintiffs’ Petition while upholding Respondents’ Motion to Dismiss and states the following facts:
1. On September 2, 2009, Special Agent Matt Sauber, of the Internal Revenue Service, issued a third party summons to Spectrum Bank in search of alleged financial records pertaining to the Plaintiff.
2. The Summons was issued to Spectrum Bank, who signed a certified receipt, which was mistakenly addressed to be returned to Plaintiff, rather than Agent Sauber. The receipt was received by Plaintiff on September 11, 2009.
3. The Plaintiff filed a Petition to Quash Third-Party party summons in his own federal jurisdiction, the Western District of Kentucky, on September 18, 2009.
4. On October 28, 2009, District Counsel filed the United States' Motion to Dismiss Petition to Quash Third-Party Summons, Memorandum in Support, and corresponding proposed Order. District Counsel also sent it via certified U.S. Mail to Plaintiff, who received it on October 30, 2009.
5. On November 19, 2009, Plaintiff filed a Motion for Enlargement of Time. Petitioner has received no response by the Court nor District Counsel to this Motion.
6. On November 18, 2009, the Court signed the Order Granting United States’ Motion to Dismiss Petition to Quash Third-Party Summons.
7. On Friday, November 20, 2009, the aforementioned Order was issued and mailed to the Petitioner. The Petitioner received it on Monday, November 23, 2009.
The Plaintiff wishes to plead this Court to reverse its previous Order Granting the Government’s Motion to Dismiss the Petition to Quash Third-Party Summons and reasons as follows:
8. The Court erroneously issued an Order against the Plaintiff in violation of Rules 12(1)(B) and 6(d) of the Federal Rules of Civil Procedure. According to Rule 12(1)(B), “A party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim.”
The government’s Motion to Dismiss served as a counterclaim, hampering the Plaintiff’s ability to move forward. The Plaintiff had until November 17, 2009 to respond to the Government’s Motion to Dismiss under Rule 12(1)(B), plus an additional 3 days, under Rule 6(d). Rule 6(d) states, “When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).”
Because the Plaintiff was sent a copy of the Government’s Motion via US Mail, he was entitled to submit his response no later than Friday, November 20, 2009.
9. The Court has violated the Plaintiff’s Due Process Rights by signing an Order against the Plaintiff on the day, and prior to the end of the day Plaintiff’s time limit to respond was ended.
10. The Court has violated the Plaintiff’s Due Process Rights by ignoring the Motion for Enlargement of Time, filed in a timely manner, by issuing the Order signed by the Court the day prior to the filing of the Motion and subsequently filing the Order the day after the Motion was filed.
11. The Court has further violated the Plaintiff’s Due Process Rights by closing the case upon issuing the Order to Dismiss with an open pleading having been submitted the day before by the Plaintiff. No Order has been issued regarding the Plaintiff’s latest request, namely, the Motion for Enlargement of Time.
The Plaintiff is not an attorney and has limited knowledge of the law and of procedures. The Plaintiff requires, to the fullest extent of the law, statute, and Rules, the time allowed for him to fully prepare his case, respond to pleadings, and answer demands made of him by the Court and by District Counsel.
Wherefore, for good cause shown in the preceding paragraphs, the Petitioner requests this Court Vacate the Order to Dismiss and grant the Petitioner’s Motion for Enlargement of Time so that Petitioner has ample opportunity to research and adequately respond to the Government’s subject matter jurisdiction claim.
CERTIFICATE OF SERVICE: I certify that a copy of this foregoing Motion was served on Respondent by US Mail in a postage paid wrapper this 30th day of November 2009, at Respondent’s address of record at
CHRISTOPHER W. SANDERS
U.S. Department of Justice
Post Office Box 227
Ben Franklin Station
Washington, DC 20044
SPECTRUM BANK
2417 West Whittier Blvd.
Montebello, CA 91101
______________________________ November 30, 2009 Norman H., Petitioner, pro se Russellville, Kentucky 42276