834 F.2d 166 (10th Cir. 1987), 85-1719, Smith v. United States

Docket Nº85-1719.
Citation834 F.2d 166
Party NameJames L. SMITH, Plaintiff-Appellant, v. UNITED STATES of America, Internal Revenue Service, Commissioner of Internal Revenue, and Norrell C. Smith, Defendants-Appellees, Sun Refining & Marketing Co., Defendant.
Case DateDecember 02, 1987
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 166

834 F.2d 166 (10th Cir. 1987)

James L. SMITH, Plaintiff-Appellant,

v.

UNITED STATES of America, Internal Revenue Service,

Commissioner of Internal Revenue, and Norrell C.

Smith, Defendants-Appellees,

Sun Refining & Marketing Co., Defendant.

No. 85-1719.

United States Court of Appeals, Tenth Circuit

December 2, 1987

Page 167

William A. Cohan, Denver, Colo. (Robert A. Flynn, Tulsa, Okl., on the brief) for plaintiff-appellant.

Matthew J. Anderton, Tax Div., Dept. of Justice, Washington, D.C. (Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup and Richard W. Perkins, Attys., Tax Div., Dept. of Justice, Washington, D.C.; and Layn R. Phillips, U.S. Atty., were also on the brief) for defendants-appellees.

Before McKAY, McWILLIAMS, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff-appellant James L. Smith (taxpayer) brought this action against various government defendants and his private employer on July 8, 1983, seeking: (1) injunctive relief from a federal tax levy on his wages, (2) restitution of monies collected pursuant to that levy, and (3) attorney's fees. The levy was based on an IRS assessment of taxpayer's 1981 tax liability in the amount of $13,975.59. On April 22, 1983, a notice of levy was issued to taxpayer's employer (Sun Refining and Marketing Co.) by defendant-appellee Norrell C. Smith, a revenue agent. The IRS had assessed the tax liability and levied on taxpayer's wages, however, before issuing a notice of deficiency to the taxpayer contrary to I.R.C. Sec. 6213(a).

After filing this action, taxpayer received a letter from an Assistant United States Attorney admitting that the wage levy was

Page 168

issued "due to an internal administrative error." On August 24, 1983, the government released the levy. The original tax assessment was abated on September 22, 1983. The amount collected pursuant to the levy with interest was returned to taxpayer and received by him on October 7, 1983. In the meantime, the IRS had issued a statutory notice of deficiency to taxpayer for the 1981 tax year in accordance with I.R.C. Sec. 6213(a).

On March 20, 1984, taxpayer filed an amended complaint incorporating various constitutional and tort theories for recovery. He also sought general, special and exemplary damages as well as injunctive relief from government tax collection activities. That same day, the district court entered a scheduling order with a discovery cutoff date of April 23, 1984. On April 3, 1984, the government defendants moved for dismissal or for summary judgment. While that motion was pending and a day after the discovery cutoff date, taxpayer sought to extend the time for discovery. This request was granted and discovery was extended until May 29, 1984. Thereafter, the private defendant, Sun Refining and Marketing Co., moved for summary judgment.

The trial court granted both motions for summary judgment. Upon taxpayer's motion for reconsideration, the district court on January 2, 1985, determined that there remained a material issue of fact as to whether government defendant Norrell C. Smith knew or should have known that his action of issuing the levy violated taxpayer's right to receive a notice of deficiency prior to assessment or collection. See Harlow v. Fitzgerald, 457 U.S. 800, 815-19, 102 S.Ct. 2727, 2736-39, 73 L.Ed.2d 396 (1982) (qualified immunity defense for government officials performing discretionary government functions ordinarily not available where law governing public official's conduct is clearly established). The summary judgment was vacated insofar as defendant Norrell C. Smith, and the discovery deadline was extended for the second time until January 25, 1985. Trial was set for February 18, 1985. On February 1, 1985, taxpayer moved for an extension of time in which to complete discovery and name witnesses, citing the need to depose two additional witnesses. The government defendants moved to dismiss based on taxpayer's failure to submit a timely pretrial order. The trial court denied both motions and set February 15, 1985, as the deadline for filing the pretrial order and exchanging exhibits.

On February 14, 1985, taxpayer moved for a continuance of the trial, discovery and submission of pretrial documents. The next day the government filed a second motion to dismiss based on taxpayer's failure to file the pretrial order or exchange exhibits in accordance with the court's deadline. The case was called on the civil jury docket on February 19, 1985. At that time, the trial court denied taxpayer's request for a continuance and an expansion of discovery and the government's second motion to dismiss. The parties were directed to file a pretrial order by February 22, 1985, and the case was set for trial on February 26, 1985. On February 26, 1985, the case was called but passed over, partly as an accommodation to taxpayer's co-counsel who had recently entered an appearance in the case. Trial was then set for March 18, 1985, at 9:30 a.m.

Meanwhile, an agreed pretrial order was submitted. Taxpayer's co-counsel on March 12, 1987, moved for a continuance, citing a heavy trial schedule and court-ordered discovery in another case. 1 On March 15, 1985, counsel were notified that the case would be tried during the week of March 18 with jury selection on March 18.

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Prior to the docket call, the trial judge telephoned taxpayer's co-counsel and ascertained that he had no trial conflicts during the week of March 18 but that he was moving during that week. At the call of the docket, taxpayer, represented by lead counsel, moved for a continuance and filed a motion seeking to reopen discovery for 90 days. These requests were denied. The trial judge dismissed the case for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) 2 when lead counsel indicated that taxpayer would not proceed to trial without further discovery.

Whether to extend or reopen discovery is committed to the sound discretion of the trial court and its decision will not be overturned on appeal absent abuse of that discretion. United States v. Reliance Insurance Co., 799 F.2d 1382, 1387 (9th Cir.1986); United States v. Schellong, 717 F.2d 329, 336 (7th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984). Appellate decisions have identified several relevant factors in reviewing decisions concerning whether discovery should be reopened, including: 1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence. Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1213 (3rd Cir.1984); Wilk v. American Medical Association, 719 F.2d 207, 232 (7th Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984); Geremia v. First National Bank of Boston, 653 F.2d 1, 5-6 (1st Cir.1981).

Pursuant to Fed.R.Civ.P. 30(a), 3 the taxpayer could have taken depositions 30 days after service of the summons and complaint on any defendant. The district court docket sheet indicates that defendants were served as early as August 17, 1983, thus depositions could have been taken as early as September 17, 1983. The taxpayer then had just over seven months, until the original discovery deadline of April 23, 1984, in which to complete depositions. On May 16, 1984, an additional 13 days was provided for discovery. On January 2, 1985, an additional 13 days was provided for discovery. Taxpayer had eight months in which to take depositions.

Taxpayer sought extensions of discovery immediately prior to...

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210 practice notes
  • 245 B.R. 882 (D.Kan. 2000), 91-40230, In re Glannon
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • February 9, 2000
    ...of these actions." Id. at 480 (citing M.E.N. Co. v. Control Fluidics, 834 F.2d 869, 873 (10th Cir.1987); Smith v. United States, 834 F.2d 166, 171 (10th Cir.1987); Woodmore v. Git-N-Go, 790 F.2d 1497, 1498 (10th Cir.1986)). A review of these cases, however, reveals that each discusses ......
  • 615 F.Supp.2d 1277 (D.N.M. 2009), CIV 07-0645, Mann v. Fernandez
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • March 20, 2009
    ...at 3, filed July 8, 2008 (Doc. 49)("Response")(brackets in original). The Defendants contend that, under Smith v. United States, 834 F.2d 166 (10th Cir.1987), discovery should not be reopened here. They maintain that inadequate discovery is not good cause for reopening discovery. ......
  • 308 F.R.D. 410 (D.N.M. 2015), CIV 12-0040 JB/KBM, The Anderson Living Trust v. WPX Energy Prod., LLC
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • June 24, 2015
    ...Scheduling Conference at 1 & n.1, filed April 17, 2015 (Doc. 280)(" Response" ). They assert that Smith v. United States, 834 F.2d 166 (10th Cir. 1987)(" Smith" ), sets forth the United States Court of Appeals for the Tenth Circuit's test for reopening discovery and ......
  • 847 F.2d 1458 (10th Cir. 1988), 85-2883, Ocelot Oil Corp. v. Sparrow Industries
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • May 31, 1988
    ...1512, 1520 & n. 6 (10th Cir.1988); M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 872 (10th Cir.1987); Smith v. United States, 834 F.2d 166, 171 (10th Cir.1987), and one that must be grounded in some fault on the part of or binding upon the party, M.E.N. Co., 834 F.2d 869 (remandin......
  • Request a trial to view additional results
212 cases
  • 245 B.R. 882 (D.Kan. 2000), 91-40230, In re Glannon
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • February 9, 2000
    ...of these actions." Id. at 480 (citing M.E.N. Co. v. Control Fluidics, 834 F.2d 869, 873 (10th Cir.1987); Smith v. United States, 834 F.2d 166, 171 (10th Cir.1987); Woodmore v. Git-N-Go, 790 F.2d 1497, 1498 (10th Cir.1986)). A review of these cases, however, reveals that each discusses ......
  • 615 F.Supp.2d 1277 (D.N.M. 2009), CIV 07-0645, Mann v. Fernandez
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • March 20, 2009
    ...at 3, filed July 8, 2008 (Doc. 49)("Response")(brackets in original). The Defendants contend that, under Smith v. United States, 834 F.2d 166 (10th Cir.1987), discovery should not be reopened here. They maintain that inadequate discovery is not good cause for reopening discovery. ......
  • Anderson Living Trust v. WPX Energy Production, LLC, 062415 NMDC, CIV 12-0040 JB/KBM
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • June 24, 2015
    ...for Scheduling Conference at 1 & n.1, filed April 17, 2015 (Doc. 280)("Response"). They assert that Smith v. United States, 834 F.2d 166 (10th Cir. 1987)("Smith"), sets forth the United States Court of Appeals for the Tenth Circuit's test for reopening discovery and ......
  • 847 F.2d 1458 (10th Cir. 1988), 85-2883, Ocelot Oil Corp. v. Sparrow Industries
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • May 31, 1988
    ...1512, 1520 & n. 6 (10th Cir.1988); M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 872 (10th Cir.1987); Smith v. United States, 834 F.2d 166, 171 (10th Cir.1987), and one that must be grounded in some fault on the part of or binding upon the party, M.E.N. Co., 834 F.2d 869 (remandin......
  • Request a trial to view additional results
1 books & journal articles
  • The inequities of AEDPA equitable tolling: a misapplication of agency law.
    • United States
    • Stanford Law Review Vol. 68 Nbr. 2, February - February 2016
    • February 1, 2016
    ...have inherent powers to impose sanctions on attorneys, including monetary fines and attorney's fees....."); Smith v. United States, 834 F.2d 166,171 (10th Cir. 1987) ("When imposing sanctions for a party's failure to comply with pretrial deadlines, the trial court is to consider, ......