In re Barber

• Decision Date: 23 October 1998
• Docket Number: Bankruptcy No. 91-60951. Adversary No. 98-6008.
• Parties: In re Thomas Bruce BARBER, Debtor. Thomas Bruce Barber, Plaintiff, v. United States of America, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Indiana

236 B.R. 655 (1998)

In re Thomas Bruce BARBER, Debtor.

Thomas Bruce Barber, Plaintiff, v. United States of America, Defendant.

Bankruptcy No. 91-60951. Adversary No. 98-6008.

United States Bankruptcy Court, N.D. Indiana, Hammond Division.

October 23, 1998.

COPYRIGHT MATERIAL OMITTED

James L. Wieser, Schererville, IN, for plaintiff.

Thomas P. Cole, U.S. Dept. of Justice, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANT

KENT LINDQUIST, Chief Judge.

STATEMENT OF PROCEEDINGS

I

This Adversary Proceeding came before the Court on a Motion for Summary Judgment filed by the Defendant, the United States of America, (hereinafter: "IRS") on July 10, 1998.

By Order of this Court dated July 17, 1998, the Chapter 7 Debtor/Plaintiff, Thomas Barber, (hereinafter: "Debtor") was given 30 days to file a Response or Answer to said Motion, and upon so doing the IRS was granted 15 days to file a Reply thereto.

No Response or Answer to said Motion for Summary Judgment was filed by the Debtor.

The Debtor's Complaint filed on January 14, 1998 alleges as follows:

1. This Court has jurisdiction over this proceeding under 28 U.S.C. § 157(b)(2)(I) and this Complaint constitutes a core proceeding.

2. That the Plaintiff is the debtor in the above-entitled case under Chapter 7 of the Bankruptcy Code pending in this Court.

3. The Defendant, United States of America, includes within its terms its sub-agency, the Internal Revenue Service.

4. That the Debtor filed a Petition in Bankruptcy under Chapter 7 of the Bankruptcy Code in this Court on May 22, 1991, and scheduled the following debts for discharge and bankruptcy:

                    Tax Year                                 Amount Scheduled
                    1981-1983                                $40,974.15
                

5. The above debts are dischargeable in bankruptcy in that they are taxes on or measured by income or gross receipts for a taxable year ending on or before the date of the filing of the Petition for which a return, if required, was last due, including extensions, more than three (3) years before the date of the filing of this petition and Debtor\'s said returns were filed prior to and afterwards three (3) years before the date of the filing of this Petition.

6. That the above-scheduled debt accrued interest and penalties thereon, which are also dischargeable.

7. Plaintiff seeks discharge under Section 727 of the Bankruptcy Code.

The Debtor prays that this Court find that this tax debt is dischargeable under the Bankruptcy Code.

The IRS filed an Answer on April 3, 1998 which admitted the allegations in paragraphs 1 and 3 and that the assessed tax liabilities for tax years 1982 and 1983 are dischargeable; denied that the tax liability for 1981 is dischargeable because the taxpayer did not file a return for 1981; and alleges that it is without knowledge or information to admit or deny the allegations in paragraphs 2 and 4.

II

Conclusions of Law and Discussion

A Jurisdiction

No objections were made by the parties to the subject-matter jurisdiction of this Court, and the Court concludes that it has subject matter jurisdiction over this Proceeding pursuant to 28 U.S.C. § 1334(b). The Court further concludes that this Proceeding is a Core Proceeding pursuant to 28 U.S.C. § 157(b)(2)(I).

B General Principles Relating to Summary Judgment

Under Rule 56(c) Fed.R.Civ.P., as made applicable by Fed.R.Bk.P. 7056, summary judgment is proper 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 judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). The inquiry that the court must make is whether the evidence presents a sufficient disagreement to require trial or whether one party must prevail as a matter of law. Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2511-12.

The moving party bears the burden of showing that there is an absence of evidence to support the nonmovant's case. Celotex Corp. v. Catrett, 106 S.Ct. at 2554, supra. Stated differently, 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, Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 106 S.Ct. at 1356, supra, (All inferences to be drawn from the underlying facts must be viewed in a light most favorable to the nonmoving party); Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218 (7th Cir.1984); Marine Bank Nat. Ass'n. v. Meat Counter, Inc., 826 F.2d 1577, 1579 (7th Cir.1987).

Federal Rule of Civil Procedure 56(e) provides in part as follows:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party\'s pleading, but the adverse party\'s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

When a motion for summary judgment is made and supported by the movant, Fed.R.Civ.P. 56(e) requires the non-moving party to set forth specific facts, which demonstrate that genuine issues of fact remain for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. at 1355, supra. Accordingly, 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 allegations or denials in its pleadings. Rather, its response must set forth in the required filings specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. See also, First National Bank v. Cities Service Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Valance v. Wisel, 110 F.3d 1269, 1274 (7th Cir.1997); Scherer v. Rockwell International Corp., 975 F.2d 356, 360 (7th Cir.1992); United States v. Pent-R Books, Inc., 538 F.2d 519, 529 (2nd Cir.1976), cert. den. 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977). The nonmovant cannot succeed in creating a factual dispute solely by pointing to allegations in his pleading; he must instead produce evidence showing there is a disputed issue for trial. Valance v. Wisel, 110 F.3d 1269, 1274 (7th Cir.1997).¹

In discussing the Movant's initial burden of production, where the nonmovant bears the burden of proof at trial, the Court in Logan v. Commercial Union Ins. Co., 96 F.3d 971 (7th Cir.1996) stated as follows:

In Celotex the Supreme Court explained:

The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party\'s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue of material fact," since a complete failure of proof concerning an essential element of the nonmoving party\'s case necessarily renders all other facts immaterial.

477 U.S. at 322-23, 106 S.Ct. at 2552. The Court took pains to make clear, however, that by this it did not intend to relieve the movant of

initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id., at 323, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(c)). The Celotex court decided only that where the movant demonstrates that the nonmovant will be unable to produce any evidence at trial supporting an essential element of a claim for which the nonmovant bears the burden of proof, summary judgment is appropriate even though the movant cannot adduce any affirmative evidence disproving the essential claim. Id. But even after Celotex, an unsupported — or "naked" — motion for summary judgment does not require the nonmovant to come forward with evidence to support each and every element of its claims. Russ v. International Paper Co. 943 F.2d 589 at 591 (5th Cir. 1991). Only after the movant has articulated with references to the record and to the law specific reasons why it believes there is no genuine issue of material fact must the nonmovant present evidence sufficient to demonstrate an issue for trial.

Celotex, 477 U.S. at 323, 106 S.Ct. at 2553.

Id., 96 F.3d at 978-79. (Emphasis in original).

C. Burden of Proof and Standard of Proof to be Applied on Motion for Summary Judgment

The ultimate burden of proof at the trial...