Opinion
CIVIL ACTION H-12-2220
09-10-2014
UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL R. SILBERSTEIN and JULIA D. SILBERSTEIN FRANKENFIELD, Defendants.
OPINION AND ORDER
Pending before the Court in the above referenced cause, seeking to reduce to judgments Defendant Michael Silberstein and his ex-wife Julia D. Silberstein Frankenfield's federal income (1040) tax liabilities and obtain a judicial foreclosure and sale of their real properties in this district to pay those taxes, are the United States' motion for summary judgment against Defendants (instrument #40) and Defendant Michael R. Silberstein's cross-motion for summary judgment (#57 and 58). Defendant Julia D. Silberstein Frankenfield has not responded to the government's motion, nor filed a cross-motion for summary judgment.
The government claims that Michael Silberstein is liable for taxes assessed against him for the tax years 1992, 1993, 1997, and 1998 in the amount of $152,033.39 and that Julia Silberstein Frankenfield is jointly liable with him for federal income tax assessed against her for 1992 and 1993 in the sum of $45,643.97.
After careful review of the extensive briefing, the evidence submitted, and the applicable law, the Court concludes that the United States' motion for summary judgment should be granted and Michael Silberstein's cross-motion should be denied.
Standard of Review
Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A dispute of material fact is "genuine" if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Initially the movant bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact on which the nonmovant bears the burden of proof at trial; a "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).
If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5th Cir. 1994). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323. The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of material fact concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc, 144 F.3d 377, 380 (5th Cir. 1998).
Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 4 0 F.3d at 713; Eason v. Thaler, 7 3 F.3d 1322, 1325 (5th Cir. 1996). "'[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .'" State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990), quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48 (1986). "Nor is the 'mere scintilla of evidence' sufficient; 'there must be evidence on which the jury could reasonably find for the plaintiff.'" Id., quoting Liberty Lobby, 477 U.S. at 252. The Fifth Circuit requires the nonmovant to submit "'significant probative evidence.'" Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d 194, 197 (5th Cir. 1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999), citing Celotex, 477 U.S. at 322, and Liberty Lobby, 477 U.S. at 249-50.
Allegations in a plaintiff's complaint are not evidence. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)("[P]leadings are not summary judgment evidence."); Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for the party opposing the motion for summary judgment, "only evidence--not argument, not facts in the complaint--will satisfy' the burden."), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5th Cir. 1991). The nonmovant must "go beyond the pleadings and by [his] own affidavits, or by depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial." Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001), citing Celotex, 477 U.S. at 324.
The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712-13.
It is well established in the Fifth Circuit that "[a] federal court may not grant a 'default' summary judgment where no response has been filed." Bradley v. Chevron U.S.A., Inc., No. Civ. A. 204CV092J, 2004 WL 2847463, *1 (N.D. Tex. Dec. 10, 2004), citing Eversley v. MBank of Dallas, 843 F.2d 172, 174 (5th Cir. 1988); Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 77 6 F.2d 1277, 1279 (5th Cir. 1985). Nevertheless, if no response to the motion for summary judgment has been filed, the court may find as undisputed the statement of facts in the motion for summary judgment. Id. at *1 and n. 2, citing id.; see also Thompson v. Eason, 258 F. Supp. 2d 508, 515 (N.D. Tex. 2003)(where no opposition is filed, the nonmovant's unsworn pleadings are not competent summary judgment evidence and movant's evidence may be accepted as undisputed). See also Unum Life Ins. Co. of America v. Long, 227 F. Supp. 2d 609 (N.D. Tex. 2002)("Although the court may not enter a 'default' summary judgment, it may accept evidence submitted by [movant] as undisputed."); Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996)("A summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence.").
Cross Motions For Summary Judgment
After a careful review of all the briefing, the evidence submitted, and the applicable law, the Court concludes that the government has proven that it is entitled to summary judgment against Michael Silberstein and Julia Silberstein Frankenfield as a matter of law. Rather than reiterate the United States' lengthy arguments, evidence, and citations to case law, the Court hereby incorporates instruments #68 (United States' opposition to Michael Silberstein's cross-motion for summary judgment and reply to Silberstein's response to the United States' motion for summary judgment), #80 (the United States' surreply to the parties' cross-motions for summary judgment), and #81 (Appendix in support of #80) and adopts government's conclusions and reasoning as its own. Because Julia Silberstein Frankenfield has failed to respond to the government's motions, she has failed to meet her burden of proof to raise a genuine issue of material fact for trial. For the reasons provided in these incorporated documents, the Court
ORDERS that the government's motion for summary judgment (#40) against Michael Silberstein and Julia Silberstein Frankenfield is GRANTED and Michael Silberstein's cross-motion (#57 and 58) is DENIED.
The Court will issue a final judgment after Magistrate Judge Stacy rules on the government's cross-motion to compel Michael Silberstein to give his deposition and to respond to the United States' second set of interrogatories (#87). Once this pending matter has been resolved, the government shall submit within ten days a proposed final judgment.
SIGNED at Houston, Texas, this 10th day of September, 2014.
/s/_________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE