Opinion
CIVIL NO. 3-02-CV-2541-H.
May 28, 2003.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff United States of America's Motion for Summary Judgment, filed April 29, 2003, and Plaintiff's Notice of No Opposition to its Motion for Summary Judgment and Request for Ruling, filed May 22, 2003.
On May 2, 2003 this Court directed the Defendant Leon Stewart Eubanks, Jr. ("Eubanks") to Respond to the Plaintiff's Motion for Summary Judgment on or before May 19, 2003. No Response has been filed by the Defendant.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED.R.CIV.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. Civ. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
II. ANALYSIS
In this case the United States of America brings suit against Defendant Leon Stewart Eubanks to recover United States federal income (1040) taxes for tax years 1990 — 1995 in the amount of $55,951.92 plus interest and penalties for any unpaid amount after June 23, 2003. The Government seeks to recover these taxes the rough foreclosure of federal tax liens on and sale of a property in which Eubanks has an interest, the location of which is: 4436 Stanhope Avenue, Dallas, TX 75205. (See Pl. Exs. 1, 3). This property has a tax assessed value of $493,670 according to the Dallas Central Appraisal District. (See Pl. Ex. 5). The Government also alleges that Defendant County of Dallas and related ad valorem taxing authorities who have appeared through the County of Dallas are entitled to be paid $116,755.80 as of December 31, 2002 from the sale of this property. (See Pl. Ex. 8).
The Dallas Central Appraisal District describes the property as follows: BEING Lot 1, Armstrong Fairway 1st and 2nd Inst., City of Dallas, Dallas County, Texas. (See Pl. Ex. 4).
In its Motion for Summary Judgment the Government provides evidence of Eubanks' interest in the Stanhope property (in the form of Harold Duane Smith and Betty Dorsey Smith's deed to the Stanhope Avenue property, the will of Harold Duane Smith, and the will of Betty Dorsey Smith). (See Pl. Exs. 5, 6, 7). It also provides evidence of a federal lien on this property for Eubanks' unpaid United States federal income (1040) taxes in the amount of $34,732.17 (in the form of a Notice of federal tax lien filed against Eubanks and a Nominee lien against Harold Duane Smith). (See Pl. Exs. 2,3). In addition, it provides evidence of Eubanks' federal income tax liability of $34,732.17 (in the form of IRS Forms 4340, Certificates of Assessments and Payments). (See Pl. Ex. 1). It alleges, but does not provide evidence that interest and penalties in the amount of $21,219.75 have accrued on the assessed amounts.
The Government shows that it served its First Set of Interrogatories, First Set of Requests for Admission, and First Request for Production of Documents upon Eubanks by fax on December 20, 2002. (Pl.'s Mot. at 4, Pl.'s Ex. 9). The Request for Admissions included the following: "Request No. 1: As of June 23, 2002, you owed the Internal Revenue Service $55,951.92, for your 1990, 1991, 1992, 1993, 1994, and 1995 federal income (1040) taxes, penalties, statutory additions, and interest, and this liability remains unpaid." (See Pl.'s Ex. 9). The Defendant did not respond to any of the discovery requests, including the Request for Admissions. In addition, the Defendant failed to appear for a deposition scheduled for January 23, 2003. (See Pl.'s Ex. 11, 12).
According to Rule 36(a) of the Federal Rules of Civil Procedure, Requests for Admission which are not responded to within 30 days are admitted as a matter of law. See Fed.R.Civ.P. 36. The Fifth Circuit, in Carney v. Internal Revenue Service, 258 F.3d 415 (2001), holds that where there is no dispute that a party failed to respond to a request for admission, the failure to respond "conclusively establish[es] the validity of [a] claim." ( Id., 258 F.3d at 418). By failing to respond to the Request for Admission, No. 1, the Defendant is deemed to have admitted that claim. Therefore, there is no issue of fact remaining on the claim that Eubanks owes the I.R.S. $55,951.92 for his unpaid income taxes.
In addition to not responding to the Request for Admissions, Eubanks has not responded to the Government's Motion for Summary Judgment, as ordered by this Court in its order of May 2, 2003. Even where there is no response to a motion for summary judgment the moving party must establish the absence of a genuine issue of material fact before it can prevail. See Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1023 (5th Cir. 1995). The Government has presented competent summary judgment evidence that Eubanks owes the I.R.S. for unpaid income taxes for the years 1990-1995; that Eubanks owns the property at 4436 Stanhope Avenue in Dallas; and, that the government has a tax lien on the property for Eubanks'(1040) tax liability. See infra pp. 2-3. Because Eubanks did not respond to the Motion for Summary Judgment there is no issue of fact remaining on these issues.
III. CONCLUSION
No issues of fact remain on the two questions presented by the Plaintiff in its Motion for Summary Judgment: 1) whether Eubanks owes $55,951.92 in federal income taxes, and 2) whether the federal tax liens should be foreclosed and the property on Stanhope Avenue should be ordered sold in payment of Eubanks' income taxes.
The Plaintiff's Motion for Summary Judgment is GRANTED. Plaintiff United States of America is DIRECTED to promptly submit a judgment.
SO ORDERED.