Free Motion for Extension of Time to File - District Court of California - California

Case 4:06-cv-07933-SBA

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HAROLD ROSENTHAL Attorney at Law 803 Hearst Avenue Berkeley, CA 94710 Tele: (510) 981-1800 Fax: (510) 981-1821 Attorney for Claimant HOUSHANG POURMOHAMAD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) ) ____________________________________) ) HOUSHANG POURMOHAMAD, ) ) Claimant. ) ____________________________________) UNITED STATES OF AMERICA, Case No. C 06-7933 MJJ MOTION FOR EXTENSION OF TIME TO FILE RESPONSIVE PLEADINGS

Claimant Houshang Pourmohamad hereby moves this Court for an extension of time to file his claim and answer in the above-entitled matter. The government has informed counsel that it would not object to a brief extension of time to allow Mr. Pourmohamad to file the above pleadings. As the government has stated in its Status Conference statement, the forfeiture complaint was not received by counsel for Mr. Pourmohamad until March 16, 2007 because the government sent these documents to counsel's former address in San Francisco rather than his current address in Berkeley, California. Counsel had appeared in the criminal action underlying the instant forfeiture action, and the United States Attorney's Office had served him correctly at his present

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address in that action. Additionally, the claim originally filed in this matter indicated counsel's Berkeley address. While a return receipt was forwarded on February 13, 2007 to the government 1 following delivery to claimant's address in Richmond, that return receipt was not signed by 2 claimant, but instead by his wife Marilyn Pourmohamad, as indicated by the signature on the 3 receipt, "M. Pourmohamad." 4 The original claim in this matter was filed by counsel, and it clearly stated that counsel 5 represented claimant in the forfeiture action. When the complaint was received by Mr. 6 Pourmohamad's wife, she assumed, correctly, that Mr. Pourmohamad was represented by 7 counsel, and that counsel would prepare the necessary pleadings, as he had done throughout the 8 underlying matter. 9 Rule 6(b ) of the Federal Rule of Civil Procedure provides that a court may extend the 10 time for filing of responsive pleadings for excusable neglect. That relief is clearly appropriate 11 here. Counsel for claimant was not served with the pleadings because they were sent to his 12 former address. His client's wife was clearly justified in her understanding that because her 13 husband was represented by counsel, any responsive pleadings would be filed by counsel. 14 A trial court may exercise its discretion in the granting a motion to extend time due to excusable 15 neglect. Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004)(Ninth Circuit en banc holds that 16 District Court properly exercised discretion in extending time for filing notice of appeal where 17 attorney had delegated task to paralegal and paralegal misread rules). Applying Pioneer 18 Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), the en 19 banc Court considered four factors: (1) the danger of prejudice to the non-moving party, (2) the 20 length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, 21 including whether it was within the reasonable control of the movant, and (4) whether the 22 moving party's conduct was in good faith. 507 U.S. at 395. 23 Application of those factors to the instant case should lead this Court to grant claimant's 24 motion. There is no danger of prejudice to the non-moving party. The length of the delay 25 2

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requested is brief; in fact, claimant has attached as exhibits both his claim and his answer which may be filed immediately by the Court should it grant this motion. The reason for the delay was 1 the transmittal of the government's pleadings to the incorrect address, where it was already 2 engaged in litigation with counsel and pleadings were served at the correct address, and where 3 counsel's original claim indicated his correct address. This is clearly something that was beyond 4 the movant's control. Finally, the movant's belief that counsel would file any necessary 5 pleadings was clearly a good faith belief in light of the fact that all filings related to this matter 6 and the criminal case underlying this matter had been made by counsel, and movant was 7 represented by counsel. 8 Accordingly, for the reasons stated above, and in light of the government's statement that 9 it would not object to a brief extension of time, it is appropriate that this Court allow for such an 10 extension of time as would permit the filing of the attached pleadings 11 Dated: March 30, 2007 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 Attorney for Defendant Houshang Pourmohamad __________________________________ HAROLD ROSENTHAL Respectfully submitted,

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HAROLD ROSENTHAL Attorney at Law 803 Hearst Avenue Berkeley, CA 94710 Tele: (510) 981-1800 Fax: (510) 981-1821 Attorney for Claimant HOUSHANG POURMOHAMAD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) $80 396 IN UNITED STATES ) ) Defendants. ) ____________________________________) ) HOUSHANG POURMOHAMAD, ) ) Claimant. ) ____________________________________) TO: UNITED STATES OF AMERICA, Case No. C 06-7933 MJJ HOUSHANG POURMOHAD'S CLAIM TO PROPERTY SEIZED FOR FORFEITURE

THE CLERK, UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA Houshang Pourmohamad claims the above-named defendant currency in the possession

19 of the U.S. Customs Service or any other United States agency, their agents or deputies, pursuant 20 to 18 U.S.C. § 981(a)(1) for violation of 8 U.S.C. §§ 1324, 1328 and 18 U.S.C. §§ 1952, 21 1956(c)(7). 22 In support of said claim, Houshang Pourmohamad alleges that he is the lawful owner of 23 all defendant currency which was seized by agents of the U.S. Customs Service without proper 24 warrant, consent or other lawful authorization. 25 1

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I declare under penalty of perjury that the foregoing is true and correct, except as to those matters stated upon information and belief, and as to those matters I believe them to be true. Executed this the 30th day of March, 2007 at Berkeley, California in the County of Alameda, Northern District of California.

____________/S/___________________ HOUSHANG POURMOHAMAD

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HAROLD ROSENTHAL Attorney at Law 803 Hearst Avenue Berkeley, CA 94710 Tele: (510) 981-1800 Fax: (510) 981-1821 Attorney for Claimant HOUSHANG POURMOHAMAD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) $80 396 IN UNITED STATES ) Defendants. ) ____________________________________) ) HOUSHANG POURMOHAMAD, ) ) Claimant. ) ____________________________________) UNITED STATES OF AMERICA, Case No. C 06-7933 MJJ HOUSHANG POURMOHAMAD'S FIFTH AMENDMENT ANSWER TO COMPLAINT FOR FORFEITURE

Claimant Houshang Pourmohamad answers the Government's Complaint for Forfeiture 17 as follows: 18 Claimant Houshang Pourmohamad is the named defendant in a criminal action entitled 19 United States v. Houshang Pourmohamad, Northern District of California, No. 4:06-CR-0055520 SBA, based upon the same acts and transactions which are the subject of the instant Complaint 21 for Forfeiture. That matter is pending trial. 22 The knowledge that Claimant Pourmohamad has concerning the facts underlying the 23 Forfeiture Complaint, and his admission or denial of any of the allegations of the Complaint, 24 could be deemed a waiver of his Fifth Amendment Privilege and could be used against him in the 25 1

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present criminal matter. Claimant Pourmohamad therefore asserts in answer to the Complaint his privilege against self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution and requests that such denial be deemed a specific denial of each and every allegation of the Complaint for Forfeiture. Claimant reserves the right to modify or supplement this Answer, with leave of Court as required, depending on further developments in the parallel criminal investigation and/or proceedings, or at a time Claimant chooses voluntarily to waive his privilege against self-incrimination, or at a time when he is compelled to answer pursuant to court order. Dated: March 30, 2007 Respectfully submitted,

__________________________ HAROLD ROSENTHAL Attorney for Claimant HOUSHANG POURMOHAMAD

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HAROLD ROSENTHAL Attorney at Law 803 Hearst Avenue Berkeley, CA 94710 Tele: (510) 981-1800 Fax: (510) 981-1821 Attorney for Claimant HOUSHANG POURMOHAMAD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) $80 396 IN UNITED STATES ) Defendants. ) ____________________________________) ) HOUSHANG POURMOHAMAD, ) ) Claimant. ) ____________________________________) UNITED STATES OF AMERICA, Case No. C 06-7933 MJJ DECLARATION OF HAROLD ROSENTHAL IN SUPPORT OF MOTION TO EXTEND TIME FOR FILING OF RESPONSIVE PLEADINGS

I, Harold Rosenthal, declare under penalty iof perjury that: 17 The factual statements contained in the accompanying Motion for Extension of Time to 18 File Responsive Pleadings are true and correct to the best of my knowledge. 19 20 21 22 23 24 25 1 _________________________________ HAROLD ROSENTHAL Executed this 30th day of March, 2007 at Berkeley, California.

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HAROLD ROSENTHAL Attorney at Law 803 Hearst Avenue Berkeley, CA 94710 Tele: (510) 981-1800 Fax: (510) 981-1821 Attorney for Claimant HOUSHANG POURMOHAMAD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) $80 396 IN UNITED STATES ) Defendants. ) ____________________________________) ) HOUSHANG POURMOHAMAD, ) ) Claimant. ) ____________________________________) Case No. C 06-7933 MJJ CLAIMANT'S SUPPLEMENTAL STATEMENT REGARDING ELECTRONIC FILING

At the time that Claimant filed his original pleadings his counsel was not aware that this 17 matter had been designated for electronic filing. Counsel is a criminal lawyer, and was not aware 18 that, as in criminal cases, all civil pleadings likewise had to be e-filed. Counsel therefore filed 19 these pleadings in the traditional manner. By this filing he corrects this error by filing his 20 // 21 // 22 // 23 // 24 // 25 1

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pleadings electronically. Dated: April 2, 2007 Respectfully submitted,

__________________________ HAROLD ROSENTHAL Attorney for Claimant HOUSHANG POURMOHAMAD

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HAROLD ROSENTHAL Attorney at Law 803 Hearst Avenue Berkeley, CA 94710 Tele: (510) 981-1800 Fax: (510) 981-1821 Attorney for Claimant HOUSHANG POURMOHAMAD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) $80 396 IN UNITED STATES ) ) Defendants. ) ____________________________________) ) HOUSHANG POURMOHAMAD, ) ) Claimant. ) ____________________________________) TO: UNITED STATES OF AMERICA, Case No. C 06-7933 MJJ [PROPOSED] ORDER

THE CLERK, UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA For good cause shown, it is hereby ORDERED that the time for filing of the Claim and

19 Answer in the above-entitled matter is extended until _______________________________ so 20 as to allow the filing of the pleadings attached to Claimant's Motion for Extension of Time. 21 22 Dated: 23 24 25 1 ______________________________________ JUDGE OF THE U.S. DISTRICT COURT