In re Daniel

• Decision Date: 19 March 1998
• Docket Number: Bankruptcy No. 96-62209,Adversary No. 96-6191.
• Citation: 227 BR 675
• Parties: In re Benny Allen DANIEL, Debtor. Benny Allen DANIEL, Plaintiff, v. UNITED STATES of America INTERNAL REVENUE SERVICE, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Indiana

227 B.R. 675 (1998)

In re Benny Allen DANIEL, Debtor.

Benny Allen DANIEL, Plaintiff, v. UNITED STATES of America INTERNAL REVENUE SERVICE, Defendant.

Bankruptcy No. 96-62209, Adversary No. 96-6191.

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

March 19, 1998.

William M. Jonelis, Munster, IN, for Benny Allen Daniel, Plaintiff.

David A. Haimes, U.S. Department of Justice, Washington, DC, for Internal Revenue Service (IRS), Defendant.

MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, UNITED STATES OF AMERICA

KENT LINDQUIST, Chief Judge.

I STATEMENT OF PROCEEDINGS

This Adversary Proceeding came before the Court on a Motion for Summary Judgment filed by the Defendant, United States of America, (hereinafter: "Defendant") on May 6, 1997.

By Order of this Court dated June 2, 1997, the Chapter 13 Debtor and Plaintiff, Benny Daniel (hereinafter: "Debtor"), was given 30 days to file a Response or Answer to said Motion, and upon so doing the Defendant was granted 15 days to file a Reply thereto.

A Response or Answer to said Motion for Summary Judgment was filed by the Debtor on July 16, 1997.

A Reply to the Debtor's Response was filed by the Defendant on July 28, 1997.

The Complaint filed by the Debtor on December 18, 1996 alleges in part as follows:

1. That Plaintiff, Benny Allen Daniel filed the captioned Chapter 13 Bankruptcy Petition on September 13, 1996.

* * * *

3. That plaintiff, Benny Allen Daniel, Debtor estimates he has personal income tax liabilities to the Defendant, United States of America, Internal Revenue Service, Creditor, as follows:

                          1995          $ 4,403.00
                          1994            2,613.95
                          1993            3,065.19
                          1992            3,905.00
                          1991           11,452.07
                          1990            1,004.30
                          1989           12,750.27
                          1988           19,859.96
                          1987              655.25
                          1986              941.94
                          1985            6,310.79
                          1984            1,818.31
                          1983            8,680.21
                

4. That Plaintiff Benny Allen Daniel, Debtor, needs to know the amount due and owing Defendant, United States of America, Internal Revenue Service, so he can properly fund his Chapter 13 Plan.

5. That by U.S.C. § 505 this court has the jurisdiction to determine the amounts of said liabilities.

6. That by 11 U.S.C. § 523(a) this Court has the jurisdiction to determine that taxes over (3) years old are dischargeable.

The Debtor's Complaint prayed that the Court issue an order holding that the Debtor's tax liabilities for 1983 through 1993 are dischargeable, and to issue an order to declare the amount that the Debtor owes the Defendant.

The Defendant filed an Answer on January 23, 1997 which: (1) alleges that the Internal Revenue Service is not a suable entity; (2) admits the allegations in paragraphs 1, 5 and 6 and (3) alleges that it is without sufficient information to form a belief as to the truth of the allegations in paragraphs 3 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), and (b)(2)(B).

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 2511-2512.

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 Nat'l 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).¹

The nonmovant must do more than demonstrate some factual disagreement between the parties; the issue must be "material". Irrelevant and unnecessary facts do not preclude summary judgment even when they are in dispute. Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir.1996). A fact is considered material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 106 S.Ct. at 2510, supra. The United States Court of Appeals, 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 non-moving party must show the disputed fact to be material. That is, it must be outcome-determinative under applicable law. See also, Whetstine v. The Gates Rubber Co., 895 F.2d 388, 391 (7th Cir.1990). Thus, facts not outcome-determinative under applicable law, though in dispute, may permit the entry of a summary judgment. In Mintz v. Mathers Fund, Inc., 463 F.2d 495, 498, (7th Cir.1972), the Court stated that, "Appellate courts should not look the other way to ignore the existence of the genuine issues of material facts, but neither should they strain to find the existence of genuine issues where none exists." See also, Kirk v. Home Indemnity Co., 431 F.2d 554, 559 (7th Cir.1970). The United States Supreme Court in the case of Matsushita Electric Industrial Co., Ltd., et al. v. Zenith Radio Corp., et al., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), stated as follows:

the issue of fact must be "genuine." Fed. Rules Civ. Proc. 56(c), (e). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See, DeLuca v. Atlantic Refining Co., 176 F.2d 421, 423 (C.A.2 1949) (L. Hand, J.), cert. denied, 338 U.S. 943, 70 S.Ct. 423, 94 L.Ed. 581 (1950); 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2727 (1983); Clark, Special Problems in Drafting and Interpreting Procedural Codes and Rules, 3 Vand. L.Rev. 493, 504-505 (1950). Cf. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 64 S.Ct. 724, 88 L.Ed. 967 (1944). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed. Rule Civ. Proc. 56(e) (emphasis added). See also, Advisory Committee Note to 1963 Amendment of Fed. Rule Civ.

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