Opinion
No. 01-8811-CIV-DIMITROULEAS
October 2, 2002
OMNIBUS ORDER
THIS CAUSE is before the Court upon the parties' September 5, 2002 Joint Motion to Suspend Discovery [DE-69], Plaintiffs (Government) July 3, 2002 Motion to Strike Affidavits [DE-64], Plaintiffs Motion to Exceed Page Limitation for Reply Memorandum [DE-65], and Plaintiffs Memorandum in Support of Motion for Summary Judgment [DE-38].
The Court has considered Plaintiffs September 6, 2001 Complaint [DE-1], Plaintiffs September 6, 2001 Exhibits to Complaint [DE-14], Defendants' Joint Answer [DE-25] and Amended Joint Answer [DE-50], Plaintiffs March 26, 2002 Memorandum in Support of Motion for Summary Judgment [DE-38], Plaintiffs March 26, 2002 Statement of Material Facts [DE-39]; Exhibits to Plaintiffs Motion for Summary Judgment [DE-41-43], Defendants' Memorandum in Opposition [DE-51] and Erratum [DE-58], Defendant's Statement of Facts [DE-52], Affidavits [DE-53-57], Plaintiffs July 3, 2002 Reply [DE-62], Reed Gross' Affidavit [DE-63], and Defendant's Memorandum in Opposition to Motion to Strike Affidavits [DE-66]. The Court has carefully considered the motions and being otherwise fully advised in the premises, finds as follows:
As Defendants point out in their Memorandum in Opposition [DE-51], no Motion for Summary Judgment appears in the Court file; therefore, the Court will treat this memorandum [DE-38] as the Motion for Summary Judgment.
1. Joint Motion to Suspend Discovery [DE-69] is Denied, as the Court has now ruled on the Motion for Summary Judgment.
2. Plaintiffs Motion to Strike Affidavits [DE-64] is Denied for the reasons set forth below.
3. Plaintiffs Motion To Exceed Page Limitation for Reply [DE-65] is Granted.
4. Plaintiffs Motion for Summary Judgment [DE-38] is Denied for the reasons set forth below.
AFFIDAVITS
The Government contends that affidavits submitted by the Defendants in this case should be stricken because of the Defendants' prior invocation of their Fifth Amendment rights at depositions taken in connection with collection proceedings in case number 1:89CV2515 (N.D. Ohio). However, the Government has not sought to depose the Defendants prior to filing their motion for summary judgment in this case. The Government contends that the Defendants' Fifth Amendment invocations occurred in a prior case and that this case is a continuation of that prior case. However, none of the cases cited by the Government stand for the proposition that the Fifth Amendment, once asserted, stands as a bar to evidence being further offered by that assertor in subsequent, succeeding cases. In all the cases cited by the Government, the witness whose affidavit or testimony was stricken, had invoked the Fifth Amendment right in that case. Here, the invocation of the Fifth Amendment occurred in another case four to eight years prior to this case even being filed. Striking of the affidavits here would be too harsh a remedy. Certainly, if witnesses or defendants are deposed in this case, and they again, or for the first time, invoke their Fifth Amendment rights, then the Court may re-visit the issue.SUMMARY JUDGMENT
The Court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P.56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id. at 325.
After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). According to the plain language of Fed.R.Civ.P.56(e), the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings," but instead must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P.56(e); Matsushita, 475 U.S. at 587.
Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the nonmoving party "is merely colorable, or is not significantly probative, then summary judgment may be granted." Anderson, 477 U.S. 242-249-50.
The Government alleges that the undisputed material facts show that, in substance, from 1982 through 1992, Gennaro Orrico was the sole owner of an insurance and extended car warranty business that he operated under the name, and/or through the entity, Griffin Systems, Inc. and companies related to it, and the funds of Gennaro Orrico and his business were used to pay for a residence at 2128 Vista Drive, Palm Beach, Florida, and a residence at 129 Old Meadow Way, Palm Beach County, Florida, that were titled in the name of his wife, Colleen Orrico, and/or his daughters, Kathleen and Cassandra Orrico. The Government seeks to foreclose its federal tax liens and a judgment that it obtained against Gennaro Orrico for federal income taxes on those residences, to sell those residences at a Court ordered sale pursuant to 28 U.S.C. § 2001 and 2002, and to apply the proceeds of sale to the judgment.
The Government has conceded that if the Court were to deny the Motion to Strike Affidavits that material issues of fact preclude summary judgment as to the residence at 129 Old Meadow Way. [DE-62, p. 2-3].
2128 VISTA DRIVE
Material issues of fact exist as to whether this property is being held as a nominee for Gennaro Orrico. There are factual disputes as to who has the active or substantial control of the property. Shades Ridge Holding Company, Inc. v. U.S., 888 F.2d 725, 728 (11th Cir. 1989), cert. denied, 110 S.Ct. 1472 (1990). Moreover, the Government concedes that other individuals may have been involved in the operations of Griffin Systems, Inc. [DE-62, p. 17]. Griffin Systems was involved in the purchase of this property. A question of fact exists as to whether this property was being held on a nominee basis for Gennaro Orrico.
Additionally, the Defendants allege that they had no intention to evade tax liability and really were unaware of tax assessments until after the property was transferred. [DE-53, p. 3; DE-57, p. 11]. Such general denials are not normally sufficient to create a question of fact sufficient to defeat summary judgment.
The law in this circuit is that a party cannot give "clear answers to unambiguous questions" in a deposition and thereafter raise an issue of material fact in a contradictory affidavit that fails to explain the contradiction. Van T. Junkins and Associates v. U.S. Industries Inc., 736 F.2d 656, 657 (11th Cir. 1984). When this occurs, the court may disregard the affidavit as a sham. Id. at 658-59. We apply this rule sparingly because of the harsh effect this rule may have on a party's case. In addition, we feel that "[t]o allow every failure of memory or variation in a witness' testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the . . . affiant . . . was stating the truth." Tippens v. Celotex Corp., 805 F.2d 949, 953-54 (11th Cir. 1986). Thus, our cases require a court to find some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit. See id. at 954. If no inherent inconsistency exists, the general rule allowing an affidavit to create a genuine issue "even it if conflicts with earlier testimony in the party's deposition," Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980), governs. In these instances, any conflict or discrepancy between the two documents can be brought out at trial and considered by the trier of fact.Robbins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987).
Gennaro Orrico now disavows his prior testimony in which he admitted Colleen to be his nominee. [DE-53, p. 5]. Normally, a convenient recantation of prior testimony does not create a material issue of fact. However, when viewing all these factors cumulatively, the Court is not comfortable granting summary judgment on this record.
Given the Court's conclusion that summary judgment is not appropriate because of the existence of material, disputed facts, the court need not reach Defendants' other arguments.