UNITED STATES v. GALLAGHER et al
Filing
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OPINION filed. Signed by Judge Mary L. Cooper on 5/6/2013. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES,
Plaintiff,
v.
WILLIAM B. GALLAGHER, JR.,
et al.,
Defendants.
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CIVIL ACTION NO. 11-4988 (MLC)
O P I N I O N
THE UNITED STATES (“Government”) brings this action to
foreclose upon federal tax liens.
Compl.)
(See dkt. entry no. 25, 2d Am.
The only defendants remaining in this action are William
B. Gallagher, Jr., and Barbara A. Gallagher (collectively,
“Gallagher Defendants”).
IT APPEARS that the Government now files a motion seeking
summary judgment in its favor and against the Gallagher
Defendants (“Motion”).
8.)
(See dkt. entry no. 44, Gov’t Br. at 1-
Three weeks have elapsed since the return date for the
Motion — April 15, 2013 — but the Gallagher Defendants have not
responded.
(See unnumbered entry following dkt. entry no. 44.)
The Motion is thus unopposed.
THE COURT now resolves the Motion without oral argument.
See L.Civ.R. 78.1(b); see also Anchorage Assocs. v. V.I. Bd. of
Tax Review, 922 F.2d 168, 174-76 (3d Cir. 1990) (stating court
may resolve unopposed summary judgment motion “on the basis of
what [movant] put[s] before the court”).
BUT THE COURT directs the Government’s attention to the
Opinion dated November 26, 2012 (“November 2012 Opinion”),
wherein the Court rejected the Government’s previous attempt to
obtain such relief in this action:
THE COURT will deny the Motion without prejudice,
insofar as the Government seeks summary judgment in its
favor and against the [Gallagher] Defendants, because
the Government has not demonstrated that it is entitled
to such relief. The Government has informed the Court
of facts purportedly bearing on the Motion. . . . But
the Government has failed to demonstrate that it is
entitled to judgment as a matter of law, either by
reference to [Federal] Rule [of Civil Procedure] 56, or
to applicable statutes and case law.
(Dkt. entry no. 31, 11-26-12 Op. at 2; see also dkt. entry no.
32, 11-26-12 Order.)
THE PAPERS filed in support of the Motion are, once again,
bereft of any discussion of a movant’s burden under Federal Rule
of Civil Procedure (“Rule”) 56 and its interplay with the
relevant federal tax statutes here.
The Government should be
well-aware that a summary judgment movant cannot be excused from
providing this kind of analysis for the Court’s assessment.
See,
e.g., United States v. Barczyk, 697 F.Supp.2d 789, 791-92 (E.D.
Mich. 2010) (discussing — in response to Government’s summary
judgment motion — interplay of Rule 56 with 26 U.S.C. §§ 6321 and
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7403), aff’d, 434 Fed.Appx. 488, 489-91 (6th Cir. 2011) (same);
United States v. Tanchak, No. 07–1475, 2009 WL 348270, at *2-7
(D.N.J. Feb. 5, 2009) (discussing — in response to Government’s
summary judgment cross motion — interplay of Rule 56 with 26
U.S.C. §§ 6303, 6321, 6322, and 7403), aff’d, 351 Fed.Appx. 729
(3d Cir. 2009); see also United States v. Bishop, No. 12–209,
2013 WL 1755232, at *1-3 (E.D. Pa. Apr. 23, 2013) (discussing —
in response to Government’s summary judgment motion — interplay
of Rule 56 with 26 U.S.C. §§ 6303, 6321, 6322, and 7403); United
States v. Wolfers, No. 11–859, 2012 WL 5363488, at *1-3 (M.D.
Fla. Oct. 30, 2012) (discussing — in response to Government’s
summary judgment motion — interplay of Rule 56 with 26 U.S.C. §§
6321, 6322, and 7403).
THE COURT notes that the Government addressed Rule 56 and
the relevant statutes in the briefs in each of the afore-cited
district court cases.
See Gov’t Br. in Support of Mot. for Summ.
J. at 3-6, United States v. Barczyk, No. 09-10881 (E.D. Mich.
Dec. 18, 2009), ECF No. 28; Gov’t Br. in Support of Cross Mot.
for Summ. J. at 3-6, United States v. Tanchak, No. 07-1475
(D.N.J. July 1, 2008), ECF No. 24; see also Gov’t Mem. in Support
of Mot. for Summ. J. at 2-6, United States v. Bishop, No. 12–209
(E.D. Pa. Mar. 15, 2013), ECF No. 21; Gov’t Mem. of Law in
Support at 5-10, United States v. Wolfers, No. 11–859 (M.D. Fla.
Aug. 23, 2012), ECF No. 35.
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GRANTING the Motion as it has been presented here would be
tantamount to inviting reversal by the Court of Appeals.
Therefore, the Court will deny the Motion without prejudice to
the Government to move, once again, for the relief sought in the
manner directed in the November 2012 Opinion and in this Opinion.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: May 6, 2013
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