Opinion
Stephen R. Place, Merrillville, IN, for debtors.
David R. DuBois, Trustee, Portage, IN.
MEMORANDUM OPINION AND ORDER
KENT LINDQUIST, Chief Judge.
I
Statement of Proceedings
This Chapter 7 case is before the court on the Withdrawal by David R. DuBois as Chapter 7 Trustee of the above captioned bankruptcy estate (hereinafter: "Trustee"), of his Motion for the Determination of the Tax Liability of the above captioned bankruptcy estate, and the Objection thereto, and the Motion for a Ruling on Motion for Summary
Judgment by the United States of America, on behalf of its Agency the Internal Revenue Service (hereinafter: "IRS").
On January 31, 1994, the Trustee filed a Motion with this Court for the determination of taxes and penalties due by the bankruptcy estate of the Debtors to the IRS arising out of the sale of certain estate property, pursuant to 11 U.S.C. § 505(b) ("Motion").
The Trustee's Motion states on September 24, 1990 he sold a certain parcel of real estate out of the Debtors' bankruptcy estate for $50,000.00, and by Agreed Order dated February 16, 1992, it was provided that the IRS would be paid $18,420.16 out of the proceeds of the sale to satisfy an IRS tax lien. The Trustee paid this lien on March 3, 1993.
The Trustee's Motion further asserts that he initially did not believe that this sale would produce a taxable event due to the IRS lien and/or an insufficient gain to warrant filing a return, but after conferring with his accountant and Debtor's counsel, he elected to file his tax return for the year 1990 on September 9, 1993, and requested a prompt determination of the tax liability of the estate. A payment of $11,994.00 was forwarded by the Trustee with the 1990 return as full payment of the estates' tax liability. In that return, the Trustee requested that any additional assessment be abated, on the grounds that the information necessary to complete the filing was not received until August 17, 1993, and thus there was no intentional attempt to avoid paying the required tax liabilities, or any intentional attempt to avoid filing the required returns.
The Trustee's Motion further asserts that on November 15, 1993, he received notice from the IRS concerning additional interest of $3,348.98, and penalties of $4,497.75 due on said return totaling $7,846.73. Of the $4,497.75 in penalties, $2,698.65 was a late filing penalty, and $1,799.10 was a late paying penalty.
The Trustee asserts that if he is required to pay the penalties and interest, there will be insufficient monies left in the Debtors' estate to pay other unspecified administrative claims and expenses of the estate, and prays that this Court determine that no additional tax penalty, or interest is due the IRS.
The IRS by Order dated February 2, 1994 was granted to March 4, 1994 to object to or request a hearing as to said Motion. The IRS generally objected to the Trustee's Motion on February 25, 1994, and requested a hearing thereon. The IRS then filed a Motion for Summary Judgment on April 21, 1994. This Motion for Summary Judgment was properly supported by a Statement of Material Facts and a Supporting Brief as required by Local Bankruptcy Rule B-756.
The IRS' Supporting Brief is 14 pages, and reflects that extensive legal research was performed by counsel for the IRS on the issue of whether the Trustee is entitled to have statutory late filing penalties, statutory late payment penalties, or statutory interest abated based on the facts as alleged by the Trustee in his Motion. The Trustee on May 18, 1994, requested additional time to respond to the IRS' Motion for Summary Judgment, and by Order dated June 6, 1994, the Trustee was granted until August 17, 1994 to file his Answer to the IRS' Motion.
The Trustee never filed an Answer to the IRS' Motion, but instead the Trustee then moved to Withdraw his Motion to redetermine tax liability on August 30, 1994. No reason for the withdrawal was set out therein. The IRS on September 8, 1994 filed its Motion for Ruling/Opposition to "Withdrawal" ("Motion--Opposition") to the Trustee's Withdrawal (voluntary dismissal) of his tax determination Motion, by asserting that this Court's dismissal of the Trustee's Motion would be inappropriate under Fed.R.Civ.P. 41(a)(1).
The IRS' Motion--Opposition asserts that on May 13, 1994, the Trustee moved for additional time to respond to the IRS' Motion for Summary Judgment, and then unbeknownst to counsel for the IRS, one week later the Trustee filed an amended tax return for the tax year in issue. The IRS further asserts that it also received a letter from Debtors' counsel which indicated that the Trustee had filed an amended fiduciary tax return decreasing the amount of the tax liability from $11,994.00 to $6,662.00 by increasing total deductions from $2,725.00 to $23,105.00.
(See Exhibit "2" to "Motion--Opposition").
The IRS asserts that it "seems that the Trustee obtained the continuance in order to lull the United States into allowing the time to select the purported amended return for audit to expire", and that the amended return would have obtained greater scrutiny if the amended return had been submitted to the IRS counsel handling this contested matter, but which was not received by him until August 30, 1994.
The IRS then questions if the Trustee should receive any administrative fees and expenses for allegedly mishandling the tax matters relating to this bankruptcy estate, and that given the timing of the Trustee's Motion to Extend Time to Respond to the Motion for summary Judgment, and the filing of the Amended Return, the inference should be drawn is that the Trustee's purpose was to improperly obtain a discharge of his personal liability as to the taxes in question.
Finally, the IRS asserts that the Trustee's § 505(b) Motion cannot be voluntarily withdrawn, as it had filed an extensive Motion for summary Judgment prior to the Trustee filing his withdrawal, citing, Fed.R.Civ.P. 41(a)(1).
II
Conclusions of Law and Discussion
Rule 41(a) of the Fed.R.Civ.P., as made applicable by Fed.R.Bk.P. 7041, is expressly made applicable in contested matters pursuant to Fed.R.Bankr.P. 9014, unless the Court pursuant to Fed.R.Bk.P. 9014 expressly otherwise directs. The § 505(b) Motion by the Trustee is a contested matter falling within the scope of Fed.R.Bk.P. 9014. The § 505(b) Motion by the Trustee, and the IRS' Objection thereto created a contested matter that falls within the scope of Fed.R.Bk.P. 9014. The Court did not direct that Fed.R.Bk.P. 7041 not apply to this contested matter, and thus Rule 41 is applicable to the Trustee's Motion, and the IRS' Objection thereto. It is also observed that Fed.R.Bk.P. 9002(1) relating to the meaning of words and phrases used in the Federal Rules of Civil Procedure, as made applicable to cases under the Code, defines "action", or "civil action" to mean the determination of any contested matter. Fed.R.Bk.P. 9002(1).
Fed.R.Civ.P. 41 states:
Rule 41(a)(1)(i) provides that an action may be dismissed by the plaintiff without court order by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or by stipulation of the parties. Chrapliwy v. Uniroyal, Inc., 71 F.R.D. 461, 464 (N.D.Ind.1976). On the other hand, if the adverse party has filed a motion for summary judgment or served a responsive pleading, Fed.R.Civ.P. 41(a)(1)(ii) and (a)(2) allows a voluntary dismissal either by stipulation or upon Order of the Court, and upon such terms and conditions as the Court deems just. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394, 110 S.Ct. 2447, 2455, 110 L.Ed.2d 359 (1990); see also In re Fairchild, 969 F.2d 866, 868 (10th Cir.1992) (debtor not entitled to unilaterally withdraw objection to claim without the permission
of the bankruptcy court after initiating contested matter which had been answered by the IRS).
The Supreme Court in Cooter & Gell, 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359, supra, explained the history and purpose of Rule 41(a)(1) as follows:
Id., 496 U.S. at 397, 110 S.Ct. at 2456.
In this case, a responsive pleading by the IRS to the Debtors' § 505 Motion was not required, unless the court had so expressly directed, pursuant to Fed.R.Bk.P. 9014, which it did not. However, because the IRS filed its Objection to the Trustee's Motion on February 25, 1994, which is the equivalent to an Answer to the Motion, and a Motion for Summary Judgment on April 21, 1994, or prior to the Trustee's withdrawal (voluntary dismissal) of his Motion, the Trustee's § 505(b) Motion cannot be withdrawn except by order of this Court, and upon such terms and conditions as the Court deems proper.
As a general matter, motions filed under Fed.R.Civ.P. 41(a)(2) should be granted liberally, as long as no other party is prejudiced. Watson v. Clark, 716 F.Supp. 1354, 1355 (D.Nev.1989), citing LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976). The intent of Fed.R.Civ.P. 41(a)(2) is to prevent the voluntary dismissal of litigation where the dismissal would unfairly affect the opposing party. Stern v. Barnett, 452 F.2d 211, 213 (7th Cir.1971).
Thus the Court has discretion to order a voluntary dismissal under Rule 41(a)(2) after considering its legal effect on the defendant. Tyco Laboratories, Inc. v. Koppers Co., Inc., 627 F.2d 54, 56 (7th Cir.1980) (The dismissal of the plaintiff's complaint without prejudice, pursuant to F.R.C.P. 41(a)(2), is within the sound discretion of the district court); United States of America v. Outboard Marine Corp., 789 F.2d 497, 502 (7th Cir.1986). (The Court abuses its discretion only when it can be established that the Defendant will suffer "plain legal prejudice" as a result of the dismissal of the Plaintiff's litigation); Merit Insurance Co. v. Leatherby Insurance Co., 581 F.2d 137, 140 + N. 3 (7th Cir.1978) (Under rule 41(a)(2) dismissal is in the discretion of the Court, and the Court can attach "such terms and conditions as the Court deems proper." Attaching conditions "prevents defendants from being unfairly affected by such dismissal,") (quoting, LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976) (citing, 9 Wright & Miller, Federal Practice and Procedure: Civil, § 2364 at 165)); Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir.1974) (A voluntary dismissal upon motion of the plaintiff after the defendant has filed its answer falls within the discretion of the district court).
The Seventh Circuit Court of Appeals in Tyco Laboratories, Inc. v. Koppers Company,
Inc., 627 F.2d 54 (7th Cir.1980) held that because the discovery pursued in the case had not been overly extensive, and because the plaintiff had agreed that it would not object in any subsequent action to the utilization of the evidence discovered in the subject litigation, the amount of discovery which had taken place during the litigation did not render a voluntary dismissal of the litigation impermissibly prejudicial to the defendant. The court noted:
Rule 41(a)(2) provides in relevant part that:
Id., 627 F.2d at 56-57. See also, Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir.1987), citing, Pace, 409 F.2d 331, with approval.
It is important to note that the Tyco Laboratories court explained that the factors discussed in Pace v. Southern Express Company, 409 F.2d 331 (7th Cir.1969) are only to be
used as guide for the trial judge, and it is not necessary that all of these factors resolved in favor of the moving party before dismissal is appropriate. While the Seventh Circuit Court of Appeals in Pace reached the conclusion that the plaintiff's motion to dismiss should not be granted, the court was persuaded by the prejudice as revealed by the particular facts of the case. The Court in Pace wrote:
Id., 409 F.2d at 334.
A motion to dismiss pursuant to Fed.R.Civ.P. 41(a)(2) should be granted unless the defendant will suffer clear legal prejudice, other than the mere prospect of a subsequent law suit. McCants v. Ford Motor Company, Inc., 781 F.2d 855, 856-57 (11th Cir.1986); Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir.1982) (Plain legal prejudice does not result simply when a defendant faces the prospect of a second lawsuit or when plaintiff merely gains some tactical advantage); Holiday Queen Land Corp. v. Baker, 489 F.2d 1031, 1032 (5th Cir.1974) (Dismissal should be allowed unless defendant will suffer some plain prejudice other than the mere prospect of a second law suit. It is no bar to dismissal that the plaintiff will obtain some tactical advantage thereby); Watson v. Clark, 716 F.Supp. 1354, 1355-56 (D.Nev.1989) ("Plain legal prejudice" does not arise from the defendant's missed opportunity for a legal ruling on the merits, citing In re Fed. Election Campaign Act Litigation, 474 F.Supp. 1051, 1052 (D.D.C.1979)); Wainwright Sec., Inc. v. Wall Street Transcript Corp., 80 F.R.D. 103, 106 (S.D.N.Y.1978). As the court in Watson stated:
Watson, 716 F.Supp. at 1356.
In McCants, 781 F.2d 855, supra, the court affirmed the district court's decision to dismiss the case without prejudice. The court held that it was not an abuse of discretion to dismiss the litigation when the action was allegedly time barred as brought, and the effect of such dismissal was to allow the plaintiff to refile the action in a place or manner which was not similarly barred. The court also held that the district court, while exercising its discretion to decide whether dismissal was appropriate, should weigh the relevant equities, do justice between the parties and attach conditions to the dismissal as are deemed appropriate. Id., 781 F.2d at 857. The court reasoned, "[i]t is no bar to a voluntary dismissal that the plaintiff may obtain some tactical advantage over the defendant
in future litigation." Id., 781 F.2d at 857, citing Durham v. Florida East Coast Railway Co., 385 F.2d 366, 368 (5th Cir.1967); Holiday Queen Land Corp. v. Baker, 489 F.2d 1031, 1032 (5th Cir.1974); Standard National Insurance Co. v. Bayless, 272 F.2d 185 (5th Cir.1959). The Court noted that the District Court "must exercise its broad equitable discretion under Rule 41(a)(2) to weigh the relevant equities and do justice between the parties in each case, imposing such costs and attaching such conditions to the dismissal as are deemed appropriate." Id., 781 F.2d at 857, citing American Cyanamid Company v. McGhee, 317 F.2d 295, 298 (5th Cir.1963); Diamond v. United States, 267 F.2d 23, 25 (5th Cir.), cert. denied 361 U.S. 834, 80 S.Ct. 85, 4 L.Ed.2d 75 (1959).
The Seventh Circuit in Kovalic v. DEC International, Inc., 855 F.2d 471, 475 (7th Cir.1988) affirmed the district court's decision to grant voluntary dismissal even though the defendant had already filed a motion for summary judgment. In Kovalic the plaintiff sued his employer for wrongful discharge. The defendant-employer answered the complaint and moved for summary judgment. The plaintiff, thereafter, moved for a voluntary dismissal under F.R.C.P. 41(a)(2) so that both the federal and non-federal claims could be tried in state court for reasons of judicial economy. The district court granted the dismissal and the employer appealed arguing that the district court abused its discretion in granting the dismissal. The court after discussing the factors it established in Pace, 409 F.2d 331, supra, and its explanation in Tyco, 627 F.2d 54, supra, held that the district court did not abuse its discretion in dismissing the suit. Id., 855 F.2d at 474. The court held that the nonmoving party has to allege and prove that it will suffer "plain legal prejudice" if the action is dismissed. Id., 855 F.2d at 474. The defendant must establish concrete prejudice beyond the mere "self-inflicted deprivation of a federal forum." Id.
The Court in Ockert v. Union Barge Line Corp., 190 F.2d 303, 304 (3d Cir.1951), recognized that there are some situations where a plaintiff should be allowed to dismiss litigation on his own motion without any limitations imposed by the trial judge. These situations concern instances where there is clearly no prejudice resulting to the other party. However, the court in Ockert, distinguishes these situations from the facts before it where the opponent had prepared for trial and appeared with his witnesses ready for submission. Id., 190 F.2d at 304.
In S.A. Andes v. Versant Corporation, 788 F.2d 1033 (4th Cir.1986), it was held that the District Court did not abuse its discretion in refusing the plaintiff's motion under Rule 41(a)(2) for dismissal without prejudice after a motion for summary judgment had been filed by the defendant. The Court observed that the mere filing of an answer or a motion for summary judgment could not, without more, be a basis for refusing to dismiss without prejudice. Id., 788 F.2d at 1036, N. 4. However, in Andes, the defendants had already incurred significant expense not only in filing a motion for summary judgment, but also by incurring substantial costs of discovery, and while it was not a case of extreme prejudice, the proceedings were more advanced than a number of cases that had held that voluntary dismissal was proper. Id. (Collecting cases). See also, Thomas v. Amerada Hess Corp., 393 F.Supp. 58 (M.D.Pa.1975), where plaintiff's voluntary motion for dismissal was denied after more than one year of extensive and costly pretrial discovery and the defendants had filed motions for summary judgment with voluminous supporting affidavits and memoranda of law, and insufficient explanation for the need to take a dismissal. Id., 393 F.Supp. at 70,citing, Pace v. Southern Express Co., 409 F.2d 331, supra, and 9 Wright & Miller, Fed.Practice and Procedure, § 2364, with approval; Tikkanen v. Citibank, N.A., 801 F.Supp. 270, 273-74 (D.Minn.1992) (Motion to dismiss denied after Motion for Summary Judgment filed. The Court observed that the plaintiffs were not entitled to dismiss their actions without prejudice merely because the law has become settled in a way they do not like, and that because substantial resources had been committed to the Motion for Summary Judgment, which had been full briefed on both sides, that was the most efficient way to resolve the actions).
Page 1025.
When granting a voluntary dismissal Rule 41(a)(2) expressly provides that the court can make the dismissal "upon such terms and conditions as the court deems proper." As noted by the court in McCall-Bey v. Franzen, 777 F.2d 1178 (7th Cir.1985), Rule 41(a)(2) states that a dismissal is without prejudice unless otherwise specified, which suggests, and it has been uniformly assumed, that the terms and conditions must be for the defendant's benefit. Id., 777 F.2d at 1884. They are the Quid for the Quo of allowing the plaintiff to dismiss his suit without being precluded by the doctrine of res judicata from bringing the same suit again. Id. The Court also observed that "[T]he general purpose of the Rule [41(a) ] is to preserve the plaintiff's right to take a voluntary nonsuit and start over so long as the defendant is not hurt." Id.
The conditions that have been imposed have included payment of costs. 27 Fed.Prac., L.Ed., Pleadings and Motions, § 62:500. Such assessments are not limited to statutory costs, but may include expenses reasonably incurred by the defendant in preparing a defense to the plaintiff's claim. Id. In addition, in granting a Rule 41(a)(2) voluntary dismissal without prejudice, the court has the authority to condition the dismissal upon the payment of attorney's fees. Id., § 62:501. However, the court is not limited to conditions of the payment of costs, expenses, and fees, and a Rule 41(a)(2) dismissal may be conditioned upon the imposition of other terms designed to reduce inconvenience to the defendant. Id., § 62:500. See LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir.1976) (Collecting cases).
In the case at bar, the Trustee filed an Amended Estate Tax Return with the IRS subsequent to his § 505(b) Motion, in which he has claimed adjustments to the estate's basis which may reduce the gross income to the estate on the sale of the subject real estate. The fact that the IRS has moved for summary judgment prior to the Trustee's withdrawal of his Motion, by itself, does not prevent voluntary dismissal. The Court must determine that the IRS will not suffer plain legal prejudice by permitting the Trustee to withdraw his Motion, which is the procedural equivalent to a Motion to voluntary dismissal of his § 505 motion. As the Trustee is interested in maximizing the return to unsecured creditors, so the IRS is interested in collecting only the tax that is legally due by the estate. As any withdrawal (dismissal) of the Trustee's § 505(b) Motion will be without prejudice, it is not dismissed based on merits. Accordingly, either the Trustee or the IRS may hereafter initiate a § 505(b) Motion in order to have the bankruptcy estate's tax liability determined.
Having reviewed the record and the relevant case law, the Court concludes that a hearing must be held on the IRS' "Motion-Opposition" filed in Response to the Trustee's Withdrawal of his § 505(b) Motion to determine if any "plain legal prejudice" will be incurred by the IRS by a Court Order permitting the Trustee to withdraw his Motion, and if the Court permits withdrawal, whether any conditions as are just should be included in the Order. The burden of this issue will be on the IRS. Kovalic v. DEC International, Inc., 855 F.2d at 474, supra. SO ORDERED. And it is further,
ORDERED, that this matter is set down for a telephone hearing thereon on the 26th day of January, 1995 at 9:15 o'clock A.M.
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.
(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. (emphasis supplied).