United States of America v. Silberstein et al

Filing 91

OPINION AND ORDER granting 40 Motion for Summary Judgment; denying 57 and 58 Cross Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(rvazquez)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA,

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§
Plaintiff,
§
§
VS.
§
§
MICHAEL R. SILBERSTEIN and JULIA§
D. SILBERSTEIN FRANKENFIELD,
§
§
Defendants.
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CIVIL ACTION H-12-2220

OPINION AND ORDER
Pending before the Court in the above referenced cause,
seeking to reduce to judgments Defendant Michael Silberstein and
his ex-wife Julia D. Silberstein Frankenfield’s federal income
(1040) tax liabilities1 and obtain a judicial foreclosure and sale
of their real properties in this district to pay those taxes, are
the United States’ motion for summary judgment against Defendants
(instrument #40) and

Defendant Michael R. Silberstein’s cross-

motion for summary judgment (#57 and 58).

Defendant Julia D.

Silberstein Frankenfield has not responded to the government’s
motion, nor filed a cross-motion for summary judgment.
After careful review of the extensive briefing, the evidence
submitted, and the applicable law, the Court concludes that the
United States’ motion for summary judgment should be granted and

1

The government claims that Michael Silberstein is liable for
taxes assessed against him for the tax years 1992, 1993, 1997, and
1998 in the amount of $152,033.39 and that Julia Silberstein
Frankenfield is jointly liable with him for federal income tax
assessed against her for 1992 and 1993 in the sum of $45,643.97.

Michael Silberstein’s cross-motion should be denied.
Standard of Review
Summary judgment under Federal Rule of Civil Procedure 56(c)
is appropriate when, viewing the evidence in the light most
favorable

to

the

nonmovant,

the

court

determines

that

“the

pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, 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.”

A dispute of material

fact is “genuine” if the evidence would allow a reasonable jury to
find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Initially the movant bears the burden of identifying those
portions of the pleadings and discovery in the record that it finds
demonstrate the absence of a genuine issue of material fact on
which the nonmovant bears the burden of proof at trial; a “complete
failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v.
National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v.
Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).
If the movant meets its burden and points out an absence of
evidence to prove an essential element of the nonmovant’s case on
which the nonmovant bears the burden of proof at trial, the
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nonmovant must then present competent summary judgment evidence to
support the essential elements of its claim and to demonstrate that
there is a genuine issue of material fact for trial.

National

Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40 F.3d 698, 712
(5th Cir. 1994).

“[A] complete failure of proof concerning an

essential element of the nonmoving party’s case renders all other
facts immaterial.”
not

rely

merely

Celotex, 477 U.S. at 323.
on

allegations,

denials

The nonmovant may
in

a

pleading

or

unsubstantiated assertions that a fact issue exists, but must set
forth specific facts showing the existence of a genuine issue of
material fact concerning every element of its cause(s) of action.
Morris v. Covan World Wide Moving, Inc,, 144 F.3d 377, 380 (5th Cir.
1998).
Conclusory

allegations

preclude summary judgment.

unsupported

by

evidence

will

not

National Ass’n of Gov’t Employees v.

City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996).

“‘[T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment . . . .’”

State

Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990),
quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48
(1986).

“Nor is the ‘mere scintilla of evidence’ sufficient;

‘there must be evidence on which the jury could reasonably find for
the plaintiff.’”

Id., quoting Liberty Lobby, 477 U.S. at 252. The
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Fifth

Circuit

requires

probative evidence.’”

the

nonmovant

to

submit

“‘significant

Id., quoting In re Municipal Bond Reporting

Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing
Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d
194, 197 (5th Cir. 1986).

“If the evidence is merely colorable,

or

probative,

is

not

significantly

summary

judgment

may

be

Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th

granted.”

Cir. 1999), citing Celotex, 477 U.S.

at 322, and Liberty Lobby,

477 U.S. at 249-50.
Allegations in a plaintiff’s complaint are not evidence.
Wallace

v.

Texas

Tech

Univ.,

80

F.3d

1042,

1047

(5th

Cir.

1996)(“[P]leadings are not summary judgment evidence.”); Johnston
v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for the
party opposing the motion for summary judgment, “only evidence-–not
argument, not facts in the complaint--will satisfy’ the burden.”),
citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5th
Cir. 1991).

The nonmovant must “go beyond the pleadings and by

[his] own affidavits, or by depositions, answers to interrogatories
and admissions on file, designate specific facts showing that there
is a genuine issue of material fact for trial.”

Giles v. General

Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001), citing Celotex, 477
U.S. at 324.
The court must consider all evidence and draw all inferences
from

the

factual

record

in

the
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light

most

favorable

to

the

nonmovant.

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.

574, 587 (1986); National Ass’n of Gov’t Employees v. City Pub.
Serv. Board, 40 F.3d at 712-13.
It is well established in the Fifth Circuit that “[a] federal
court may not grant a ‘default’ summary judgment where no response
has been filed.”

Bradley v. Chevron U.S.A., Inc., No. Civ. A.

204CV092J, 2004 WL 2847463, *1 (N.D. Tex. Dec. 10, 2004), citing
Eversley v. MBank of Dallas, 843 F.2d 172, 174 (5th Cir. 1988);
Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776
F.2d 1277, 1279 (5th Cir. 1985).

Nevertheless, if no response to

the motion for summary judgment has been filed, the court may find
as undisputed the statement of facts in the motion for summary
judgment.
Eason,

258

Id. at *1 and n. 2, citing id.; see also Thompson v.
F.

Supp.

2d

508,

515

(N.D.

Tex.

2003)(where

no

opposition is filed, the nonmovant’s unsworn pleadings are not
competent summary judgment evidence and movant’s evidence may be
accepted as undisputed).

See also Unum Life Ins. Co. of America v.

Long, 227 F. Supp. 2d 609 (N.D. Tex. 2002)(“Although the court may
not enter a ‘default’ summary judgment, it may accept evidence
submitted by [movant] as undisputed.”); Bookman v. Shubzda, 945 F.
Supp. 999, 1002 (N.D. Tex. 1996)(“A summary judgment nonmovant who
does not respond to the motion is relegated to [his] unsworn
pleadings, which do not constitute summary judgment evidence.”).

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Cross Motions For Summary Judgment
After a careful review of all the briefing, the evidence
submitted, and the applicable law, the Court concludes that the
government has proven that it is entitled to summary judgment
against Michael Silberstein and Julia Silberstein Frankenfield as
a matter of law.

Rather than reiterate the United States’ lengthy

arguments, evidence, and citations to case law, the Court hereby
incorporates instruments #68 (United States’ opposition to Michael
Silberstein’s

cross-motion

for

summary

judgment

and

reply

to

Silberstein’s response to the United States’ motion for summary
judgment), #80 (the United States’ surreply to the parties’ crossmotions for summary judgment), and #81 (Appendix in support of #80)
and adopts government’s conclusions and reasoning as its own.
Because Julia Silberstein Frankenfield has failed to respond to the
government’s motions, she has failed to meet her burden of proof to
raise a genuine issue of material fact for trial.

For the reasons

provided in these incorporated documents, the Court
ORDERS that the government’s motion for summary judgment (#40)
against Michael Silberstein and Julia Silberstein Frankenfield is
GRANTED and Michael Silberstein’s cross-motion (#57 and 58) is
DENIED.
The Court will issue a final judgment after Magistrate Judge
Stacy rules on the government’s cross-motion to compel Michael
Silberstein to give his deposition and to respond to the United

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States’ second set of interrogatories (#87).

Once this pending

matter has been resolved, the government shall submit within ten
days a proposed final judgment.
SIGNED at Houston, Texas, this 10th day of September , 2014.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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