UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America,

Plaintiff

v. Case No. 08-cv-499-SM

Opinion No. 2012 DNH 035

David M. Hulick and

Caroline P. Hulick,

Defendants/

Counterclaim Plaintiffs

and

State of New Hampshire

Department of Employment Security,

Defendant/

Counterclaim Plaintiff

O R D E R

The government seeks leave to amend its complaint “to

clarify and correct a mistake in describing a trust fund recovery

assessment” it hopes to recover from David Hulick (at least in

part by foreclosing its federal tax lien on Hulick’s interest in

his family’s home). That motion is denied for a number of

reasons, including the following: 

- The motion to amend is untimely. The

scheduling order and discovery plan adopted

by the court on November 10, 2010 (document

no. 24), established a February 15, 2011,

deadline for amendments to the pleadings - a

deadline that passed more than a year ago; 

- Discovery closed on September 1, 2011, and

this case is currently scheduled for trial in

Case 1:08-cv-00499-SM Document 90 Filed 03/16/12 Page 1 of 3
June. Granting the government’s motion would

cause undue delay; 

- Allowing the proposed amendment would

unfairly prejudice defendants; 

- This is not the first time the government’s

inattention to detail has prejudiced (or

would prejudice) the Hulicks (see, e.g., the

court’s earlier discussion of the

government’s erroneous calculation of the

relevant CSEDs - revealed only after the

Hulicks dutifully made substantial monthly

payments to the IRS and reasonably believed

they had satisfied their obligations to the

government); 

- The “mistakes,” “errors,” and

“misunderstandings” of the record evidence

that the government now seeks to correct were

pointed out by the Hulicks (repeatedly) many

months ago. And, when the Hulicks raised

them (again) in their motion to reconsider,

the court noted that the IRS responded with

silent “indifference.” Order (document no.

82) at 8; 

- More is expected of the government in

conducting litigation. Its history of

carelessness and nonchalance in prosecuting

this case counsels strongly against granting

its tardy motion to amend;1

- The government has not shown good cause for

its delay in seeking to amend the complaint. 

Although the government’s motion invokes the

lenient provisions of Rule 15(a), it fails to

satisfy (or even acknowledge) the more

1 For example, only now does the government concede that

there is no evidence that Hulick had any role whatsoever in Maine

Aviation - despite pursuing him since 1997 for trust fund

recovery penalties related to that company. One would hope (and

expect) that agents of the IRS and their legal counsel would

exercise a bit more caution and attention to detail before

bringing the full weight of the federal government to bear

against a taxpayer. 

2

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rigorous, and applicable, requirements of

Rule 16(b). See generally Steir v. Girl

Scouts of the USA, 383 F.3d 7, 12 (1st Cir.

2004); O’Connell v. Hyatt Hotels, 357 F.3d

152, 154 (1st Cir. 2004). See also RosarioDiaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir.

1998) (noting that “[c]arelessness is not

compatible with a finding of diligence”);

Feliciano-Hernandez v. Pereira-Castillo, 663

F.3d 527, 538 (1st Cir. 2011) (noting that

“protracted delay, with its attendant burdens

on the opponent and the court, is itself a

sufficient reason for the court to withhold

permission to amend”). 

For the foregoing reasons, as well as those set forth in the

Hulicks’ memorandum (document no. 86), the government’s motion to

amend the complaint (document no. 84) is denied. 

SO ORDERED.

____________________________

Steven J. McAuliffe

United States District Judge

March 16, 2012

cc: Patrick B. Gushue, Esq.

Andrea A. Kafka, Esq.

Richard J. Lavers, Jr., Esq.

Gerald C. Miller, Esq.

Daniel E. Will, Esq.

Joshua M. Wyatt, Esq.

3

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