In re Associated Bicycle Service, Inc.
Citation | 128 BR 436 |
Decision Date | 25 September 1990 |
Docket Number | Bankruptcy No. 88-61426,Adv. No. 89-6149. |
Parties | In re ASSOCIATED BICYCLE SERVICE, INC., Debtor. ASSOCIATED BICYCLE SERVICE, INC., Plaintiff, v. UNITED STATES of America the COMMISSIONER OF the INTERNAL REVENUE SERVICE, Defendant. |
Court | United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana |
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Wm. O'Toole, Michigan City, Ind., for plaintiff.
Mark Winer, U.S. Justice Dept., Washington, D.C., for defendant.
This adversary proceeding came before the Court on a Motion for Summary Judgment filed by the Defendant on July 5, 1990.
By Order of this Court dated July 13, 1990, the Plaintiff was given 15 days to file a response or answer to said motion and upon so doing the Defendant was granted 7 days to file a reply thereto.
On September 5, 1990, the Plaintiff filed its Objection and Answer to Motion for Summary Judgment, with accompanying Statement of Material Facts and Memorandum of Law.
The Plaintiff's complaint filed on September 21, 1989, pursuant to 11 U.S.C. § 505 alleges as follows:
The Plaintiff prays for a judgment determining that as to its pre-petition and postpetition tax obligations it be adjudicated a "contractor" and not an "employer" as those terms are understood pursuant to the Internal Revenue Code, Title 26 U.S.C.; that it be granted leave to amend all Forms 941, and pay all its workforce on Form 1099, rather than Form W-2, and that the Plaintiff be found exempt from "employer" contributions for FICA purposes for all relevant years.
Conclusions of Law and Discussion
No objections were made by the parties to the jurisdiction of this Court and the Court finds this is a core proceeding pursuant to 28 U.S.C. § 157.
The granting of a motion for summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
The moving party, in making a motion for summary judgment, "has the burden of establishing the lack of a genuine issue of material fact." Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984).
When ruling on a motion for summary judgment, inferences to be drawn from underlying facts contained in such materials as attached exhibits, and depositions must be viewed in a light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); See also, Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215 (7th Cir. 1984).
By entering a summary judgment for a party, the court is concluding that based on the evidence upon which the nonmoving party intends to rely at trial, no reasonable jury could return a verdict for the non-moving party. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985); Weit v. Continental Illinois National Bank & Trust Co., 641 F.2d 457, 461 (7th Cir.1981), cert. den., 455 U.S. 988, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982).
Once a moving party has met its initial burden, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and that the disputed fact is material. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983), cert. den., 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Thus, if the movant carries his initial burden, the opposing party may not defeat the motion by merely relying on the contentions of its pleadings, but must produce significant probative evidence to support its position. First National Bank v. Cities Service Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968); United States v. Pent-R Brooks, Inc., 538 F.2d 519 (2nd Cir.1976), cert. den. 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977).
As noted by the Court in the case of Federal Deposit Insurance Corp. v. Meyer, 781 F.2d 1260 (7th Cir.1986), a response is insufficient to raise a genuine issue of material fact if it is not based on the personal knowledge of the affiant, and where affiant alleges to be without information to admit or deny the allegations contained in the Movant's affidavit, and demands strict proof thereof, at best the response asserts a mere suspicion or theoretical question of fact that is insufficient to raise a genuine issue of fact.
In addition, General Rule 11 as made applicable by Local Bankruptcy Rule B-111 provides as follows:
In determining the motion for summary judgment, the court will assume that the facts as claimed by the moving party are admitted to exist without controversy, except as and to the extent that such facts are actually in good faith controverted in the "statement of genuine issues" filed in opposition to the motion, as supported by the depositions, answers to interrogatories, admissions, and affidavits on file.
In Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir. 1987), the Seventh Circuit addressed exactly what a party must demonstrate to show the existence of a genuine issue of fact precluding summary judgment. The Court stated:
A genuine issue for trial only exists when there is sufficient evidence favoring the nonmovant for a jury to return a verdict for that party. As the Supreme Court has stated, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." We must not weigh the evidence. Instead, we must see if the nonmovant\'s evidence is sufficient. In determining whether evidence is sufficient, we must of necessity consider the substantive evidentiary standard of proof, for example, preponderance of the evidence, that would apply at a trial on the merits. In addition, we draw all inferences in favor of the nonmovant. Such inferences, however, must be "justifiable". (Citations and footnote omitted).
In reaching its determination, the Court has the power to penetrate the allegations of fact in the pleadings and look to any evidential source to determine whether there is an issue of fact to be tried. Parmelee Transportation Co. v. Keeshin, 292 F.2d 794 (7th Cir.1961).
The Seventh Circuit in Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983) (en banc) cert. den. 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983), held that to preclude a summary judgment, the nonmoving party must show the disputed fact to be material. That is, it must be outcome-determinative...
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