U.S. v. Akhtar

• Citation: 95 F.Supp.2d 668
• Decision Date: 16 December 1999
• Docket Number: No. Civ.A. H-98-3882.,Civ.A. H-98-3882.
• Parties: UNITED STATES of America, Plaintiff, v. Naeem AKHTAR, formerly d/b/a Mattia, Inc., 8000 Harwin Drive, # 410 Houston, Texas 77036, Defendant.
• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas

95 F.Supp.2d 668

UNITED STATES of America, Plaintiff, v. Naeem AKHTAR, formerly d/b/a Mattia, Inc., 8000 Harwin Drive, # 410 Houston, Texas 77036, Defendant.

No. Civ.A. H-98-3882.

United States District Court, S.D. Texas.

December 16, 1999.

Samuel G. Longoria, U.S. Attorneys Office, Houston, TX, for United States of America, plaintiff.

George J. Prappas, Houston, TX, Nakeem Akhter, Houston, TX, defendant pro se.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

I. Introduction

Pending before the court is Plaintiff United States of America's ("United States") Motion for Summary Judgment (# 25). The United States seeks summary judgment against Defendant Naeem Akhtar ("Akhtar") on its claims of violations of 21 U.S.C. § 842(a)(10), 21 C.F.R. § 1310.05(a)(1) and (b), and other applicable regulations. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment should be granted.

II. Factual Background

Akhtar, doing business as Mattia, Inc., in Houston, Texas, was registered with the Drug Enforcement Administration ("DEA") as a "distributor," defined by the Comprehensive Drug Abuse Prevention and Control Act ("the Act") as "a person who so delivers a controlled substance or a listed chemical," and a "regulated person," defined by the Act as "a person who ... distributes ... a listed chemical," authorized to distribute List I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine. See 21 U.S.C. § 802(11) & (38), 822; 21 C.F.R. §§ 1300.02(27), 1310.02(a). List I chemicals are closely regulated because of the ease with which they may be used in the illicit manufacture of methamphetamine and other illegal substances.

In the course of monitoring this activity, the DEA discovered that a representative of Akhtar had engaged in a series of regulated transactions with a purported representative of the Sunmart convenience store chain without notifying the DEA of these transactions as required by the Act. The Sunmart representative, Wasim Amin ("Amin"), is a convicted felon who, at the time, was serving a 10-year probated sentence for credit card fraud. Amin purchased ephedrine from Akhtar's representative on four occasions, each time for cash:

                               Number        Number
                    Date of Bottles of Tablets Price
                  11-10-97         72         4,320      $  126.00
                  11-17-97        168        10,080      $  294.00
                  12-04-97        552        33,120      $  938.00
                  12-16-97      1,200        72,000      $2,040.00
                

In each of these transactions, the bottles of ephedrine were sold in commercial form bearing the name "Mini Two-Way Action" tablets. Amin was not authorized to purchase ephedrine on Sunmart's behalf. Moreover, Sunmart did not stock "Mini Two-Way Action" tablets.

Plaintiff instituted this action on November 17, 1998, seeking to recover penalties for violations of 21 U.S.C. § 842(a)(10), 21 C.F.R. § 1310.05(a)(1) and (b), and other applicable regulations. On December 3, 1998, Defendant answered this action and on April 13, 1999, appeared by counsel for a pretrial scheduling conference. Since that date, however, Defendant has failed to answer interrogatories or requests for admissions or to produce records as ordered by the court on June 4, 1999.

On the United States's motion for entry of default judgment, the court ordered Akhtar to appear on October 27, 1999, to show cause why judgment should not be entered against him. Neither Akhtar nor his attorney appeared at the hearing. On October 28, 1999, the United States filed its motion for summary judgment, to which Akhtar has not responded.

III. Analysis

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir.1999); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir.1998); Wenner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir.1997), cert. denied, 523 U.S. 1073, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998). The moving party, however, need not negate the elements of the nonmovant's case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321-22; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir.1993)); see Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321; Messer v. Meno, 130 F.3d 130, 134 (5th Cir.1997), cert. denied, 525 U.S. 1067, 119 S.Ct. 794, 142 L.Ed.2d 657 (1999); Hart v. O'Brien, 127 F.3d 424, 435 (5th Cir.1997), cert. denied, 525 U.S. 1103, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999); Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776 (5th Cir.1997). "`The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Reves v. Ernst & Young, 507 U.S. 170, 190 n. 3, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990); see Marshall, 134 F.3d at 321. Nonetheless, "`only reasonable inferences can be drawn from the evidence in favor of the nonmoving party.'" Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 451, 469 n. 14, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (emphasis in original). "If the [non-moving party's] theory is ... senseless, no reasonable jury could find in its favor, and summary judgment should be granted." Id. at 468-69, 112 S.Ct. 2072.

The nonmovant's burden is not satisfied by "some metaphysical doubt as to material facts," conclusory allegations, unsubstantiated assertions, speculation, the mere existence of some alleged factual dispute, or "only a scintilla of evidence." Little, 37 F.3d at 1075; see Hart, 127 F.3d at 435; Wallace, 80 F.3d at 1047; Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990) (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to his case on which he bears the burden of proof at trial. See Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Wenner, 123 F.3d at 324. "In such a situation, there can be `no genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.

Summary judgment may not be awarded by default, however, merely because the non-moving party has failed to respond. See Hibernia Nat'l Bank v. Administration Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985). "A motion for summary judgment cannot be granted simply because there is no opposition, even if failure to oppose violated a local rule. The movant has the burden of establishing the absence of a genuine issue of material fact and, unless he has done so, the court may not grant the motion, regardless of whether any response was filed." Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n. 3 (5th Cir.1995) (citing Hibernia Nat'l Bank, 776 F.2d at 1279). Nonetheless, the district court may accept as undisputed the facts set forth in support of the unopposed motion for summary judgment. See Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir.1988); Rayha v. United Parcel Serv., Inc., 940 F.Supp. 1066, 1068 (S.D.Tex.1996).

B. Comprehensive Drug Abuse Prevention and Control Act

The record keeping provisions of the Act provide in relevant part:

It shall be unlawful for any person —

* * * * * *

(10) negligently to fail to keep a record or make a report under section 830 of this title.

21 U.S.C. § 842(a)(10). This provision applies to all persons who have the authority to dispense drugs and imposes strict liability on all violators. See United States v. Green Drugs, 905 F.2d 694, 695, 698-99 (3d Cir.), cert. denied, 498 U.S. 985, 111 S.Ct. 518, 112 L.Ed.2d 530 (1990); United States v. Little, 59 F.Supp.2d 177, 183 (D.Mass.1999); United States v....