United States of America v. Deguire et al

Filing 64

ORDER denying Plaintiff's Motion for Summary Judgment 53 . Proposed Pretrial Order due by 5/4/2013. Final Pretrial Conference set for 5/29/2013 at 02:00 PM before Senior Judge Stephen M McNamee. Status Conference set for 4/10/2013 at 03:00 PM before Senior Judge Stephen M McNamee (please see attached order for complete information). Signed by Senior Judge Stephen M McNamee on 3/25/13. (TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, Plaintiff, 10 11 v. 12 William Deguire, Jr., et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) No. CV-09-2364-PHX-SMM ORDER 15 Before the Court is Plaintiff’s Motion for Summary Judgment. (Doc. 53.) Defendants 16 have responded, Plaintiff has replied, and the matter is fully briefed. (Docs. 57, 59.) The 17 Court will deny Plaintiff’s motion. BACKGROUND 18 19 Beginning in 1999 and continuing through 2008, the Secretary of the Treasury made 20 assessments of federal income taxes, penalites and interest, and other statutory additions 21 against Defendants William Deguire Jr. and Cecilia Deguire for tax liabilities from the years 22 1998 and 2000. (Doc. 54 at 2.) On October 20, 2005, the Internal Revenue Service (“IRS”) 23 filed a Notice of Federal Tax Lien against the Deguires with regard to their 1998 tax liability. 24 (Id. at 3.) The IRS filed a second Notice of Federal Tax Lien against the Deguires on 25 September 3, 2008, with regard to their 2000 tax liability. (Id.) Both liens attached to the 26 Deguires’ real property located at 3119 W. Las Palmaritas in Maricopa County (hereafter, 27 “the property”). 28 Plaintiff thereupon brought this action to reduce to judgment the outstanding federal 1 tax assessments against the Deguires, and to foreclose the liens against the property. (Doc. 2 1.) Plaintiff later filed its first amended complaint, adding Defendants JP Morgan Chase 3 Bank N.A., U.S. Bancorp, U.S. Bancourp Investments, Inc., and U.S. Bank N.A. (collectively 4 “Bank Defendants”), and removing count one of the complaint. (Doc. 38.) Accordingly, 5 Plaintiff’s only remaining claim is now a request that the Court order foreclosure of the 6 federal tax liens against the subject property. (Id. at 5-6.) 7 Bank Defendants assert an interest in the same property on the basis of a previously 8 existing deed of trust, recorded in 1987. (Doc. 58.) Now, Plaintiff brings its motion for 9 summary judgment, arguing that there is no genuine dispute of material fact as to its 10 foreclosure claim, and that judgment in its favor is appropriate as a matter of law. (Doc. 53.) 11 LEGAL STANDARDS 12 A court must grant summary judgment if the pleadings and supporting documents, 13 viewed in the light most favorable to the nonmoving party, “show[] that there is no genuine 14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 15 Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. 16 Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines 17 which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also 18 Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the outcome of the suit 19 under the governing law will properly preclude the entry of summary judgment.” Anderson, 20 477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be “such that 21 a reasonable jury could return a verdict for the nonmoving party.” Id.; see Jesinger, 24 F.3d 22 at 1130. 23 A principal purpose of summary judgment is “to isolate and dispose of factually 24 unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 25 against a party who “fails to make a showing sufficient to establish the existence of an 26 element essential to that party’s case, and on which that party will bear the burden of proof 27 at trial.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 28 1994). The moving party need not disprove matters on which the opponent has the burden -2- 1 of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment 2 need not produce evidence “in a form that would be admissible at trial in order to avoid 3 summary judgment.” Id. at 324. However, the nonmovant must set out specific facts 4 showing a genuine dispute for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 5 Corp., 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 6 1049 (9th Cir. 1995). 7 A federal tax lien attaches to a taxpayer’s property when unpaid taxes are assessed. 8 26 U.S.C. § 6321. A federal tax lien does not automatically have priority over all other liens, 9 however: “priority for purposes of federal law is governed by the common-law principle that 10 ‘the first in time is the first in right.’” U.S. by and through Internal Revenue Service v. 11 McDermott, 507 U.S. 447, 449 (1993) (quoting United States v. New Britain, 347 U.S. 81, 12 85 (1954)). 13 DISCUSSION 14 Plaintiff argues that it has a superior lien on the property, and thus that summary 15 judgment in its favor is appropriate. (Doc. 53.) Bank Defendants respond by arguing that 16 the real property at issue is subject to a deed of trust that was recorded in 1987, which is still 17 outstanding in the amount of $60,002.12. (Doc. 57 at 2-3.) Plaintiff does not appear to 18 dispute the facial superiority of Bank Defendants’ lien on the property due to the “first in 19 time, first in right” rule. (Doc. 59 at 2.) However, Plaintiff asserts that Bank Defendants 20 have failed to present facts in support of their claim to have a superior lien on the property, 21 arguing that Bank Defendants have not put forth sufficient evidence of the amount of the lien 22 and thus cannot proceed to trial. (Id. at .) 23 After reviewing the disputed and undisputed facts in the light most favorable to the 24 nonmoving party, the Court finds that summary judgment is not appropriate. Although 25 Plaintiff alleges that Bank Defendants fail to sufficiently establish the amount of their lien, 26 Bank Defendants do allege that the amount still owing on the deed of trust is $60,002.12, an 27 assertion which is supported by the declaration of Jessica Garibay, Assistant Vice-President 28 of JP Morgan Chase. (Doc. 58-1.) Plaintiff challenges whether this evidence is sufficient -3- 1 to establish the amount of the lien, but Bank Defendants have set forth specific facts showing 2 a genuine dispute, and the Court must make all reasonable inferences in their favor. The 3 Court thus finds that a sufficient material dispute exists regarding the superiority of Bank 4 Defendants’ lien to make summary judgment inappropriate in this case. CONCLUSION 5 6 Accordingly, for the foregoing reasons, 7 IT IS HEREBY ORDERED denying Plaintiff’s Motion for Summary Judgment. 8 (Doc. 53.) 9 IT IS FURTHER ORDERED that a Status Conference shall be held in Courtroom 10 605, Sandra Day O’Connor U.S. Federal Courthouse, 401 W. Washington St., Phoenix, 11 Arizona 85003, on April 10, 2013, at 3:00 p.m. 12 IT IS FURTHER ORDERED setting the Final Pretrial Conference for May 29, 13 2013 at 2:00 p.m. The deadline for the parties to file dispositive motions has passed. This 14 matter appearing ready for trial, a Final Pretrial Conference shall be held in Courtroom 605, 15 Sandra Day O’Connor U.S. Federal Courthouse, 401 W. Washington St., Phoenix, Arizona 16 85003. The attorneys who will be responsible for the trial of the case shall attend the Final 17 Pretrial Conference. Counsel shall bring their calendars so that trial scheduling can be 18 discussed. 19 IT IS FURTHER ORDERED that, if this case shall be tried to a jury, the attorneys 20 who will be responsible for the trial of the lawsuit shall prepare and sign a Proposed Pretrial 21 Order and submit it to the Court on Friday, May 4, 2013. 22 IT IS FURTHER ORDERED that the content of the Proposed Pretrial Order shall 23 include, but not be limited to, that prescribed in the Form of Pretrial Order attached hereto. 24 Statements made shall not be in the form of a question, but should be a concise narrative 25 statement of each party’s contention as to each uncontested and contested issue. 26 IT IS FURTHER ORDERED pursuant to Federal Rule of Civil Procedure 37(c) that 27 the Court will not allow the parties to offer any exhibits, witnesses, or other information that 28 were not previously disclosed in accordance with the provisions of this Order and/or the -4- 1 Federal Rules of Civil Procedure and/or not listed in the Proposed Pretrial Order, except for 2 good cause. IT IS FURTHER ORDERED directing the parties to exchange drafts of the 3 4 Proposed Pretrial Order no later than seven (7) days before the submission deadline. 5 IT IS FURTHER ORDERED that the parties shall file and serve all motions in 6 limine no later than Friday, May 4, 2013. Each motion in limine shall include the legal 7 basis supporting it. Responses to motions in limine are due Friday, May 11, 2013. No 8 replies will be permitted. The attorneys for all parties shall come to the Final Pretrial 9 Conference prepared to address the merits of all such motions. 10 IT IS FURTHER ORDERED directing the parties to complete the following tasks 11 by the time of the filing of the Proposed Pretrial Order if they intend to try the case before 12 a jury: 13 (1) The parties shall jointly file a description of the case to be read to the jury. 14 (2) The parties shall jointly file a proposed set of voir dire questions. The voir 15 dire questions shall be drafted in a neutral manner. To the extent possible, the parties 16 shall stipulate to the proposed voir dire questions. 17 disagreement about a particular question, the party or parties objecting shall state the 18 reason for their objection below the question. 19 (3) 20 instructions shall be accompanied by citations to legal authority. If a party believes 21 that a proposed instruction is a correct statement of the law, but the facts will not 22 warrant the giving of the instructions, the party shall so state. The party who believes 23 that the facts will not warrant the particular instruction shall provide an alternative 24 instruction with appropriate citations to legal authority. 25 (4) 26 the trial. 27 IT IS FURTHER ORDERED directing the parties to submit their proposed joint 28 statement of the case, joint voir dire questions, stipulated jury instructions, and verdict forms. If the parties have any The parties shall file a proposed set of stipulated jury instructions. The Each party shall submit a form of verdict to be given to the jury at the end of -5- 1 IT IS FURTHER ORDERED that if the case will be tried to the Court, rather than 2 to a jury, instead of filing a Proposed Pretrial Order, each party shall submit proposed 3 findings of fact and conclusions of law by the same date the Proposed Pretrial Order is due. 4 IT IS FURTHER ORDERED that the parties shall keep the Court apprised of the 5 possibility of settlement and should settlement be reached, the parties shall file a Notice of 6 Settlement with the Clerk of the Court. 7 IT IS FURTHER ORDERED that this Court views compliance with the provisions 8 of this Order as critical to its case management responsibilities and the responsibilities of the 9 parties under Rule 1 of the Federal Rules of Civil Procedure. 10 11 DATED this 25th day of March, 2013. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Plaintiff, 10 11 ) ) ) ) ) ) ) ) ) ) ) ) , vs. 12 , 13 Defendant. 14 No. CV -PHX-SMM PROPOSED ORDER PRETRIAL FORM OF 15 Pursuant to the Scheduling Order, the following is the joint Proposed Final Pretrial 16 17 Order to be considered at the Final 18 ___________________________, _________ . 19 Pretrial Conference A. COUNSEL FOR THE PARTIES 20 Plaintiff(s): 22 for (Include mailing address, office phone and fax numbers). 21 set Defendant(s): 23 B. STATEMENT OF JURISDICTION. 24 Cite the statute(s) which gives this Court jurisdiction. 25 (e.g., Jurisdiction in this case is based on diversity of citizenship under Title 28 26 U.S.C. §1332.) 27 Jurisdiction (is/is not) disputed. 28 1 (If jurisdiction is disputed, the party contesting jurisdiction shall set forth with 2 specificity the bases for the objection.) 3 C. NATURE OF ACTION. 4 Provide a concise statement of the type of case, the cause of the action, and the 5 relief sought. 6 (e.g., - This is a products liability case wherein the plaintiff seeks damages for 7 personal injuries sustained when he fell from the driver's seat of a forklift. The 8 plaintiff contends that the forklift was defectively designed and manufactured by 9 the defendant and that the defects were a producing cause of his injuries 10 11 and damages.) D. CONTENTIONS OF THE PARTIES. 12 With respect to each count of the complaint, counterclaim or cross-claim, and to 13 any defense, affirmative defense, or the rebuttal of a presumption where the 14 burden of proof has shifted, the party having the burden of proof shall list the 15 elements or standards that must be proved in order for the party to prevail on that 16 claim or defense. Citation to relevant legal authority is required. 17 (e.g., In order to prevail on this products liability case, the plaintiff must prove 18 the following elements . . . . 19 In order to defeat this products liability claim based on the statute of repose, the 20 defendant must prove the following elements . . . .) 21 E. STIPULATIONS AND UNCONTESTED FACTS 22 1. The following facts are admitted by the parties and require no proof: 23 2. The following facts, although not admitted, will not be contested at trial by 24 evidence to the contrary: 25 26 27 28 -2- 1 F. CONTESTED ISSUES OF FACT AND LAW 2 1. The following are the issues of fact to be tried and decided: (Each issue of fact 3 must be stated separately and in specific terms. Each parties’ contention as to 4 each issue must be set forth with respect to each and every issue of fact). E.g., 5 Issue # 1: Whether Plaintiff used due care. 6 Plaintiff Contends: Plaintiff looked both ways before stepping into the 7 street . . . . 8 Defendant Contends: Plaintiff was chasing a ball and darted out into the 9 street without looking . . . . 10 2. The following are the issues of law to be tried and determined: (Each issue of 11 law must be stated separately and in specific terms. Each parties' contention as 12 to each issue must be set forth with respect to each and every issue of law). E.g., 13 Issue # 1: Whether Plaintiff's suit is barred by the doctrine of laches. 14 Plaintiff Contends: . . . 15 Defendant Contends: . . . 16 G. LIST OF WITNESSES. 17 A jointly prepared list of witnesses and their respective addresses, identifying 18 each as either plaintiff’s or defendant’s, and indicating whether a fact or expert 19 witness, must accompany this proposed order. If a witness’ address is unknown, 20 it should be so stated. A brief statement as to the testimony of each witness must 21 also be included. Additionally, the parties shall designate which witnesses (1) 22 shall be called at trial, (2) may be called at trial, and (3) are unlikely to be called 23 at trial. 24 Additionally, the parties shall include the following text in this portion of the 25 Proposed Pretrial Order: 26 The parties understand that the Court has put them on notice that they are 27 responsible for ensuring that the witnesses they want to put on the stand to testify 28 -3- 1 are subpoenaed to testify, regardless of whether the intended witness is listed as 2 a witness for the plaintiff(s) or the defendant(s). Simply because a party lists a 3 witness does not mean that the witness will be called. Therefore, a party should 4 not rely on the listing of a witness by the opposing party as an indication that the 5 witness will be called. To the extent possible, the parties shall stipulate to the 6 witnesses who will be called to testify. 7 H. LIST OF EXHIBITS. 8 1. The following exhibits are admissible in evidence and may be marked in 9 evidence by the Clerk: 10 a. Plaintiff’s Exhibits: 11 b. Defendant’s Exhibits: 12 2. As to the following exhibits, the parties have reached the following 13 stipulations: 14 a. Plaintiff’s Exhibits: 15 b. Defendant’s Exhibits: 16 3. As to the following exhibits, the party against whom the exhibit is to be 17 offered objects to the admission of the exhibit and offers the objection stated 18 beneath: 19 a. Plaintiff’s Exhibits: 20 (E.g., City Hospital records of Plaintiff from March 6, 1985 through March 22, 21 1985. Defendant objects for lack of foundation because . . . . (the objection must 22 specify why there is a lack of foundation)). 23 b. Defendant’s Exhibits: 24 (E.g., Payroll records of Plaintiff’s employer which evidences payment of 25 Plaintiff’s salary during hospitalization and recovery. Plaintiff objects on the 26 ground of relevance and materiality because (the objection must specify why 27 there is a relevancy or materiality problem)). 28 -4- 1 I. DEPOSITIONS TO BE OFFERED. 2 The parties shall list the depositions to be used at trial. The portions to be read 3 at trial shall be identified by page and line number. Counsel should note 4 objections to deposition testimony by writing the objection in the margins of that 5 portion of the text of the deposition to which the objection is made. Moreover, 6 these objections shall be explained in this portion of the Proposed Pretrial Order. 7 As is the Court's practice at trial, it is not sufficient for an objecting party to 8 simply state perfunctory grounds for an objection (e.g., “hearsay” or “lack of 9 foundation”) contained in the Proposed Pretrial Order. Each party must explain 10 the basis for each perfunctory objection (e.g., why it is hearsay, why it lacks 11 foundation, why it is irrelevant). 12 J. MOTIONS IN LIMINE. Motions in limine shall be served, filed, and responded 13 to in accordance with the instructions contained in the Order Setting Final Pretrial 14 Conference. 15 K. LIST OF ANY PENDING MOTIONS 16 L. PROBABLE LENGTH OF TRIAL 17 M. JURY DEMAND - A jury trial (has) (has not) been requested. If a jury trial was 18 requested, (indicate the appropriate selection): 19 1. the parties stipulate the request was timely and properly made; 20 2. the (Plaintiff or Defendant) contends the request was untimely made because: 21 (explain why request was untimely); or 22 3. the (Plaintiff or Defendant contends that although the request for trial by jury 23 was timely, the request is improper as a matter of law because: (indicate the legal 24 basis why a jury trial would be improper). 25 For a Bench Trial 26 N-1. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW shall 27 be filed and served by each party in accordance with the instructions contained 28 -5- 1 in the Order Setting Final Pretrial Conference. 2 For a Jury Trial 3 N-2.STIPULATED JURY INSTRUCTIONS, PROPOSED VOIR DIRE 4 QUESTIONS, AND PROPOSED FORMS OF VERDICT shall be filed in 5 accordance with the instructions contained in the Order Setting Final Pretrial 6 Conference. 7 O. CERTIFICATIONS. The undersigned counsel for each of the parties in this 8 action do hereby certify and acknowledge the following: 9 1. All discovery has been completed. 10 2. The identity of each witness has been disclosed to opposing counsel. 11 3. Each exhibit listed herein (a) is in existence; (b) is numbered; and (c) has been 12 disclosed and shown to opposing counsel. 13 4. The parties have complied in all respects with the mandates of the Court's Rule 14 16 Order and Order Setting Final Pretrial Conference. 15 5. [Unless otherwise previously ordered to the contrary], the parties have made 16 all of the disclosures required by the Federal Rules of Civil Procedure. 17 APPROVED AS TO FORM AND CONTENT: 18 __________________________________ _________________________________ 19 Attorney for Plaintiff Attorney for Defendant 20 Based on the foregoing, 21 IT IS ORDERED that this Proposed Pretrial Order jointly submitted by the parties 22 is hereby APPROVED and is thereby ADOPTED as the official Pretrial Order of this Court. 23 DATED this ______ day of ______________________, _________. 24 25 _________________________ 26 Stephen M. McNamee Senior United States District Judge 27 28 -6-

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