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GABEL v. COMMISSIONER OF THE IRS

December 23, 1994

RICHARD L. GABEL, Plaintiff,
v.
COMMISSIONER OF THE INTERNAL REVENUE SERVICE, Defendant.



The opinion of the court was delivered by: D. LOWELL JENSEN

 On October 12, 1994, the Court heard arguments on cross-motions for summary judgment. Mr. Gabel represented himself, and Assistant United States Attorney Jay R. Weill represented the IRS. Having considered the arguments of the parties and the papers submitted, the Court hereby GRANTS the IRS's motion for summary judgment and DENIES Gabel's summary judgment motion. Gabel's motion for a Vaughn index and motion to strike are also denied.

 I. BACKGROUND

 A. Factual Background and Procedural History

 Gabel submitted four FOIA requests to the IRS. He asked for various assessment documents containing information relevant to him. He received some documents, but was not satisfied with the overall response. He consequently filed suit against the IRS, seeking an order compelling the IRS to produce additional documents. The IRS asserts that it withheld in whole or in part only eight pages of documents that are responsive to Gabel's request, and cites specific exemptions that prevent it from allowing Gabel to see them. Both sides moved for summary judgment, and Gabel moved for an order requiring the IRS to produce a Vaughn index describing all withheld documents.

 On October 12, 1994, the day of the hearing on the summary judgment motions, Gabel filed an additional document entitled "Affidavit in support of Plaintiff Cross Motion for Summary Judgment and Motion for Vaughn Index." Because the IRS had not had an opportunity to review that document, the Court deferred ruling on the motions, and gave the IRS the opportunity to file a response, which it did on October 26. Gabel filed a motion to strike that document on November 10, and the IRS filed a response to that motion on November 26, 1994.

 B. Legal Standard

 The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(e).

 On cross motions for summary judgment, the burdens faced by the opposing parties vary with the burden of proof they will face at trial. When the moving party will have the burden of proof at trial, "his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." William W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-488 (1984).

 In contrast, a moving party who will not have the burden of proof at trial need only point to the insufficiency of the other side's evidence, thereby shifting to the nonmoving party the burden of raising genuine issues of fact by substantial evidence. T.W. Electric, 809 F.2d at 630 citing Celotex, 477 U.S. at 323; Kaiser Cement, 793 F.2d at 1103-04.

 In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in a light most favorable to the nonmoving party. T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).

 In meeting their burdens, each party must come forward with admissible evidence. Fed. R. Civ. P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2nd Cir. 1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See. e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980). The party who ...


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