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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff,

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v.

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William Deguire, Jr., et al.,

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Defendants.

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No. CV-09-2364-PHX-SMM
ORDER

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Before the Court is Plaintiff’s Motion for Summary Judgment. (Doc. 53.) Defendants

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have responded, Plaintiff has replied, and the matter is fully briefed. (Docs. 57, 59.) The

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Court will deny Plaintiff’s motion.
BACKGROUND

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Beginning in 1999 and continuing through 2008, the Secretary of the Treasury made

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assessments of federal income taxes, penalites and interest, and other statutory additions

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against Defendants William Deguire Jr. and Cecilia Deguire for tax liabilities from the years

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1998 and 2000. (Doc. 54 at 2.) On October 20, 2005, the Internal Revenue Service (“IRS”)

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filed a Notice of Federal Tax Lien against the Deguires with regard to their 1998 tax liability.

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(Id. at 3.) The IRS filed a second Notice of Federal Tax Lien against the Deguires on

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September 3, 2008, with regard to their 2000 tax liability. (Id.) Both liens attached to the

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Deguires’ real property located at 3119 W. Las Palmaritas in Maricopa County (hereafter,

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“the property”).

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Plaintiff thereupon brought this action to reduce to judgment the outstanding federal

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tax assessments against the Deguires, and to foreclose the liens against the property. (Doc.

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1.) Plaintiff later filed its first amended complaint, adding Defendants JP Morgan Chase

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Bank N.A., U.S. Bancorp, U.S. Bancourp Investments, Inc., and U.S. Bank N.A. (collectively

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“Bank Defendants”), and removing count one of the complaint. (Doc. 38.) Accordingly,

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Plaintiff’s only remaining claim is now a request that the Court order foreclosure of the

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federal tax liens against the subject property. (Id. at 5-6.)

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Bank Defendants assert an interest in the same property on the basis of a previously

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existing deed of trust, recorded in 1987. (Doc. 58.) Now, Plaintiff brings its motion for

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summary judgment, arguing that there is no genuine dispute of material fact as to its

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foreclosure claim, and that judgment in its favor is appropriate as a matter of law. (Doc. 53.)

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LEGAL STANDARDS

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A court must grant summary judgment if the pleadings and supporting documents,

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viewed in the light most favorable to the nonmoving party, “show[] that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v.

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Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines

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which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also

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Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the outcome of the suit

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under the governing law will properly preclude the entry of summary judgment.” Anderson,

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477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be “such that

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a reasonable jury could return a verdict for the nonmoving party.” Id.; see Jesinger, 24 F.3d

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at 1130.

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A principal purpose of summary judgment is “to isolate and dispose of factually

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unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate

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against a party who “fails to make a showing sufficient to establish the existence of an

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element essential to that party’s case, and on which that party will bear the burden of proof

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at trial.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.

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1994). The moving party need not disprove matters on which the opponent has the burden
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of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment

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need not produce evidence “in a form that would be admissible at trial in order to avoid

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summary judgment.” Id. at 324. However, the nonmovant must set out specific facts

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showing a genuine dispute for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

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Corp., 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,

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1049 (9th Cir. 1995).

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A federal tax lien attaches to a taxpayer’s property when unpaid taxes are assessed.

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26 U.S.C. § 6321. A federal tax lien does not automatically have priority over all other liens,

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however: “priority for purposes of federal law is governed by the common-law principle that

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‘the first in time is the first in right.’” U.S. by and through Internal Revenue Service v.

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McDermott, 507 U.S. 447, 449 (1993) (quoting United States v. New Britain, 347 U.S. 81,

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85 (1954)).

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DISCUSSION

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Plaintiff argues that it has a superior lien on the property, and thus that summary

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judgment in its favor is appropriate. (Doc. 53.) Bank Defendants respond by arguing that

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the real property at issue is subject to a deed of trust that was recorded in 1987, which is still

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outstanding in the amount of $60,002.12. (Doc. 57 at 2-3.) Plaintiff does not appear to

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dispute the facial superiority of Bank Defendants’ lien on the property due to the “first in

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time, first in right” rule. (Doc. 59 at 2.) However, Plaintiff asserts that Bank Defendants

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have failed to present facts in support of their claim to have a superior lien on the property,

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arguing that Bank Defendants have not put forth sufficient evidence of the amount of the lien

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and thus cannot proceed to trial. (Id. at .)

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After reviewing the disputed and undisputed facts in the light most favorable to the

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nonmoving party, the Court finds that summary judgment is not appropriate. Although

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Plaintiff alleges that Bank Defendants fail to sufficiently establish the amount of their lien,

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Bank Defendants do allege that the amount still owing on the deed of trust is $60,002.12, an

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assertion which is supported by the declaration of Jessica Garibay, Assistant Vice-President

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of JP Morgan Chase. (Doc. 58-1.) Plaintiff challenges whether this evidence is sufficient
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to establish the amount of the lien, but Bank Defendants have set forth specific facts showing

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a genuine dispute, and the Court must make all reasonable inferences in their favor. The

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Court thus finds that a sufficient material dispute exists regarding the superiority of Bank

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Defendants’ lien to make summary judgment inappropriate in this case.
CONCLUSION

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Accordingly, for the foregoing reasons,

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IT IS HEREBY ORDERED denying Plaintiff’s Motion for Summary Judgment.

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(Doc. 53.)

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IT IS FURTHER ORDERED that a Status Conference shall be held in Courtroom

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605, Sandra Day O’Connor U.S. Federal Courthouse, 401 W. Washington St., Phoenix,

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Arizona 85003, on April 10, 2013, at 3:00 p.m.

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IT IS FURTHER ORDERED setting the Final Pretrial Conference for May 29,

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2013 at 2:00 p.m. The deadline for the parties to file dispositive motions has passed. This

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matter appearing ready for trial, a Final Pretrial Conference shall be held in Courtroom 605,

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Sandra Day O’Connor U.S. Federal Courthouse, 401 W. Washington St., Phoenix, Arizona

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85003. The attorneys who will be responsible for the trial of the case shall attend the Final

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Pretrial Conference. Counsel shall bring their calendars so that trial scheduling can be

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discussed.

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IT IS FURTHER ORDERED that, if this case shall be tried to a jury, the attorneys

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who will be responsible for the trial of the lawsuit shall prepare and sign a Proposed Pretrial

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Order and submit it to the Court on Friday, May 4, 2013.

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IT IS FURTHER ORDERED that the content of the Proposed Pretrial Order shall

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include, but not be limited to, that prescribed in the Form of Pretrial Order attached hereto.

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Statements made shall not be in the form of a question, but should be a concise narrative

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statement of each party’s contention as to each uncontested and contested issue.

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IT IS FURTHER ORDERED pursuant to Federal Rule of Civil Procedure 37(c) that

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the Court will not allow the parties to offer any exhibits, witnesses, or other information that

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were not previously disclosed in accordance with the provisions of this Order and/or the
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Federal Rules of Civil Procedure and/or not listed in the Proposed Pretrial Order, except for

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good cause.
IT IS FURTHER ORDERED directing the parties to exchange drafts of the

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Proposed Pretrial Order no later than seven (7) days before the submission deadline.

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IT IS FURTHER ORDERED that the parties shall file and serve all motions in

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limine no later than Friday, May 4, 2013. Each motion in limine shall include the legal

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basis supporting it. Responses to motions in limine are due Friday, May 11, 2013. No

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replies will be permitted. The attorneys for all parties shall come to the Final Pretrial

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Conference prepared to address the merits of all such motions.

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IT IS FURTHER ORDERED directing the parties to complete the following tasks

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by the time of the filing of the Proposed Pretrial Order if they intend to try the case before

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a jury:

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(1)

The parties shall jointly file a description of the case to be read to the jury.

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(2)

The parties shall jointly file a proposed set of voir dire questions. The voir

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dire questions shall be drafted in a neutral manner. To the extent possible, the parties

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shall stipulate to the proposed voir dire questions.

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disagreement about a particular question, the party or parties objecting shall state the

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reason for their objection below the question.

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(3)

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instructions shall be accompanied by citations to legal authority. If a party believes

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that a proposed instruction is a correct statement of the law, but the facts will not

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warrant the giving of the instructions, the party shall so state. The party who believes

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that the facts will not warrant the particular instruction shall provide an alternative

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instruction with appropriate citations to legal authority.

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(4)

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the trial.

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IT IS FURTHER ORDERED directing the parties to submit their proposed joint

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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

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IT IS FURTHER ORDERED that if the case will be tried to the Court, rather than

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to a jury, instead of filing a Proposed Pretrial Order, each party shall submit proposed

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findings of fact and conclusions of law by the same date the Proposed Pretrial Order is due.

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IT IS FURTHER ORDERED that the parties shall keep the Court apprised of the

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possibility of settlement and should settlement be reached, the parties shall file a Notice of

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Settlement with the Clerk of the Court.

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IT IS FURTHER ORDERED that this Court views compliance with the provisions

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of this Order as critical to its case management responsibilities and the responsibilities of the

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parties under Rule 1 of the Federal Rules of Civil Procedure.

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DATED this 25th day of March, 2013.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,

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vs.

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Defendant.
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No. CV -PHX-SMM
PROPOSED
ORDER

PRETRIAL

FORM

OF

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Pursuant to the Scheduling Order, the following is the joint Proposed Final Pretrial

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Order

to

be

considered

at

the

Final

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___________________________, _________ .

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Pretrial

Conference

A. COUNSEL FOR THE PARTIES

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Plaintiff(s):

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for

(Include mailing address, office phone and fax numbers).

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set

Defendant(s):

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B. STATEMENT OF JURISDICTION.

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Cite the statute(s) which gives this Court jurisdiction.

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(e.g., Jurisdiction in this case is based on diversity of citizenship under Title 28

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U.S.C. §1332.)

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Jurisdiction (is/is not) disputed.

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(If jurisdiction is disputed, the party contesting jurisdiction shall set forth with

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specificity the bases for the objection.)

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C. NATURE OF ACTION.

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Provide a concise statement of the type of case, the cause of the action, and the

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relief sought.

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(e.g., - This is a products liability case wherein the plaintiff seeks damages for

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personal injuries sustained when he fell from the driver's seat of a forklift. The

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plaintiff contends that the forklift was defectively designed and manufactured by

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the defendant and that the defects were a producing cause of his injuries

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and damages.)
D. CONTENTIONS OF THE PARTIES.

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With respect to each count of the complaint, counterclaim or cross-claim, and to

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any defense, affirmative defense, or the rebuttal of a presumption where the

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burden of proof has shifted, the party having the burden of proof shall list the

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elements or standards that must be proved in order for the party to prevail on that

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claim or defense. Citation to relevant legal authority is required.

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(e.g., In order to prevail on this products liability case, the plaintiff must prove

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the following elements . . . .

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In order to defeat this products liability claim based on the statute of repose, the

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defendant must prove the following elements . . . .)

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E. STIPULATIONS AND UNCONTESTED FACTS

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1. The following facts are admitted by the parties and require no proof:

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2. The following facts, although not admitted, will not be contested at trial by

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evidence to the contrary:

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F. CONTESTED ISSUES OF FACT AND LAW

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1. The following are the issues of fact to be tried and decided: (Each issue of fact

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must be stated separately and in specific terms. Each parties’ contention as to

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each issue must be set forth with respect to each and every issue of fact). E.g.,

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Issue # 1: Whether Plaintiff used due care.

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Plaintiff Contends: Plaintiff looked both ways before stepping into the

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street . . . .

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Defendant Contends: Plaintiff was chasing a ball and darted out into the

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street without looking . . . .

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2. The following are the issues of law to be tried and determined: (Each issue of

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law must be stated separately and in specific terms. Each parties' contention as

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to each issue must be set forth with respect to each and every issue of law). E.g.,

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Issue # 1: Whether Plaintiff's suit is barred by the doctrine of laches.

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Plaintiff Contends: . . .

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Defendant Contends: . . .

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G. LIST OF WITNESSES.

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A jointly prepared list of witnesses and their respective addresses, identifying

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each as either plaintiff’s or defendant’s, and indicating whether a fact or expert

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witness, must accompany this proposed order. If a witness’ address is unknown,

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it should be so stated. A brief statement as to the testimony of each witness must

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also be included. Additionally, the parties shall designate which witnesses (1)

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shall be called at trial, (2) may be called at trial, and (3) are unlikely to be called

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at trial.

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Additionally, the parties shall include the following text in this portion of the

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Proposed Pretrial Order:

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The parties understand that the Court has put them on notice that they are

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responsible for ensuring that the witnesses they want to put on the stand to testify

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are subpoenaed to testify, regardless of whether the intended witness is listed as

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a witness for the plaintiff(s) or the defendant(s). Simply because a party lists a

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witness does not mean that the witness will be called. Therefore, a party should

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not rely on the listing of a witness by the opposing party as an indication that the

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witness will be called. To the extent possible, the parties shall stipulate to the

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witnesses who will be called to testify.

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H. LIST OF EXHIBITS.

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1. The following exhibits are admissible in evidence and may be marked in

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evidence by the Clerk:

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a. Plaintiff’s Exhibits:

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b. Defendant’s Exhibits:

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2. As to the following exhibits, the parties have reached the following

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stipulations:

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a. Plaintiff’s Exhibits:

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b. Defendant’s Exhibits:

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3. As to the following exhibits, the party against whom the exhibit is to be

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offered objects to the admission of the exhibit and offers the objection stated

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beneath:

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a. Plaintiff’s Exhibits:

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(E.g., City Hospital records of Plaintiff from March 6, 1985 through March 22,

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1985. Defendant objects for lack of foundation because . . . . (the objection must

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specify why there is a lack of foundation)).

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b. Defendant’s Exhibits:

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(E.g., Payroll records of Plaintiff’s employer which evidences payment of

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Plaintiff’s salary during hospitalization and recovery. Plaintiff objects on the

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ground of relevance and materiality because (the objection must specify why

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there is a relevancy or materiality problem)).

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I.

DEPOSITIONS TO BE OFFERED.

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The parties shall list the depositions to be used at trial. The portions to be read

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at trial shall be identified by page and line number. Counsel should note

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objections to deposition testimony by writing the objection in the margins of that

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portion of the text of the deposition to which the objection is made. Moreover,

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these objections shall be explained in this portion of the Proposed Pretrial Order.

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As is the Court's practice at trial, it is not sufficient for an objecting party to

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simply state perfunctory grounds for an objection (e.g., “hearsay” or “lack of

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foundation”) contained in the Proposed Pretrial Order. Each party must explain

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the basis for each perfunctory objection (e.g., why it is hearsay, why it lacks

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foundation, why it is irrelevant).

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J.

MOTIONS IN LIMINE. Motions in limine shall be served, filed, and responded

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to in accordance with the instructions contained in the Order Setting Final Pretrial

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Conference.

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K. LIST OF ANY PENDING MOTIONS

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L. PROBABLE LENGTH OF TRIAL

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M. JURY DEMAND - A jury trial (has) (has not) been requested. If a jury trial was

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requested, (indicate the appropriate selection):

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1. the parties stipulate the request was timely and properly made;

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2. the (Plaintiff or Defendant) contends the request was untimely made because:

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(explain why request was untimely); or

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3. the (Plaintiff or Defendant contends that although the request for trial by jury

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was timely, the request is improper as a matter of law because: (indicate the legal

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basis why a jury trial would be improper).

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For a Bench Trial

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N-1. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW shall

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be filed and served by each party in accordance with the instructions contained

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in the Order Setting Final Pretrial Conference.

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For a Jury Trial

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N-2.STIPULATED JURY INSTRUCTIONS, PROPOSED VOIR DIRE

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QUESTIONS, AND PROPOSED FORMS OF VERDICT shall be filed in

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accordance with the instructions contained in the Order Setting Final Pretrial

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Conference.

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O. CERTIFICATIONS. The undersigned counsel for each of the parties in this

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action do hereby certify and acknowledge the following:

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1. All discovery has been completed.

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2. The identity of each witness has been disclosed to opposing counsel.

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3. Each exhibit listed herein (a) is in existence; (b) is numbered; and (c) has been

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disclosed and shown to opposing counsel.

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4. The parties have complied in all respects with the mandates of the Court's Rule

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16 Order and Order Setting Final Pretrial Conference.

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5. [Unless otherwise previously ordered to the contrary], the parties have made

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all of the disclosures required by the Federal Rules of Civil Procedure.

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APPROVED AS TO FORM AND CONTENT:

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__________________________________ _________________________________

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Attorney for Plaintiff

Attorney for Defendant

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Based on the foregoing,

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IT IS ORDERED that this Proposed Pretrial Order jointly submitted by the parties

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is hereby APPROVED and is thereby ADOPTED as the official Pretrial Order of this Court.

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DATED this ______ day of ______________________, _________.

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_________________________

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Stephen M. McNamee
Senior United States District Judge

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