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United States of America v. Daniel E. Thomas

January 3, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DANIEL E. THOMAS, DEFENDANT.



ORDER AND FINDINGS AND RECOMMENDATIONS

This case is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Presently pending for decision is plaintiff's motion for summary judgment, which is noticed for hearing on January 5, 2011. The court has determined that oral argument will not materially assist in resolving the motion and, accordingly, the January 5 hearing on the motion is vacated pursuant to Local Rule 230(g). The court has carefully reviewed the pleadings and evidence on file and finds that for the reasons stated below plaintiff's motion for summary judgment must be granted.

I. BACKGROUND

Defendant Thomas filed a Uniform Commercial Code ("UCC") financial statement against a federal employee. Plaintiff, the United States, "brings this action to obtain a judicial declaration that a document filed by defendant Daniel E. Thomas with the Secretary of State for the State of California against an employee of the United States is null, void, and without legal effect; and to enjoin the defendant from all future filings of similar documents." Dckt. No. 4 at 1 (Amended Complaint filed on March 31, 2010).

On September 29, 2010, plaintiff filed a motion for summary judgment and noticed the motion for hearing before the undersigned on December 1, 2010. Dckt. No. 23. Defendant failed to file an opposition or a statement of non-opposition to plaintiff's motion for summary judgment, in violation of Local Rules 230(c) and 260(b).*fn1 Accordingly, on November 23, 2010, the court issued an order explaining the requirements set forth in Local Rules 230(c) and 260(b); continuing the hearing on plaintiff's motion for summary judgment to January 5, 2011; ordering defendant to show cause why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motion; and directing defendant to file an opposition to the motion, or a statement of non-opposition thereto, and a response to plaintiff's statement of undisputed facts, no later than December 22, 2010. Dckt. No. 26. The order further provided that "[a] failure to comply with this order may result in a recommendation that plaintiff's motion for summary judgment be granted." Id.

On November 24, 2010, defendant filed a "Notice of Change of Filing," indicating that he had "changed [his] UCC filing to include the remedy for Ms. Green in the collateral description," and an attached UCC filing which stated that the lien "will be released upon proof of discharge by the Debtor in the form of a RELEASE OF FEDERAL TAX LIENS and/or Paid in Full Receipt." Dckt. No. 27. Also on November 24, 2010, defendant filed a letter with the court, stating that "If bonds or other instruments have already been issued for this case number, upon presentment of a signed invoice from the real party in interest or your court finance department, I will assist them to balance their books." Dckt. No. 28. Then, on December 9, 2010, defendant filed a "Notice of Conditional Acceptance" of the November 23 order to show cause, in which he stated that he is "willing to work in good faith and release the lien against Ms. Green" and that "[a]ll that is necessary to ensure the release would be a return of [defendant's] original signature instruments." Dckt. No. 29. Defendant also states that if the instruments are no longer physically available, he "will accept evidence of a credit to [his] account." Id. However, defendant still has not filed an opposition or a statement of non-opposition to the pending motion, a response to plaintiff's statement of undisputed facts, or a response to the November 23 order to show cause.

II. MOTION FOR SUMMARY JUDGMENT

Plaintiff moves for summary judgment against defendant "declaring that the UCC Financing Statement filed by defendant Daniel Thomas against a federal government employee is null, void, and of no legal effect, and enjoining Thomas from filing similar sham UCC Financing Statements in the future." Dckt. No. 23 at 1. Plaintiff requests the entry of a permanent injunction pursuant to 26 U.S.C. § 7402(a). Id.

A. Summary Judgment Standard

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)).

Summary judgment avoids unnecessary trials in cases with no genuinely disputed material facts. See N.W. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). At issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, Rule 56 serves to screen the latter cases from those which actually require resolution of genuine disputes over material facts; e.g., issues that can only be determined through presentation of testimony at trial such as the credibility of conflicting testimony over facts that make a difference in the outcome. Celotex, 477 U.S. at 323.

If the moving party meets its initial responsibility, the opposing party must establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To overcome summary judgment, the opposing party must demonstrate a factual dispute that is both material, i.e. it affects the outcome of the claim under the governing law, see Anderson, 477 U.S. at 248; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). In attempting to establish the existence of a factual dispute that is genuine, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11.

In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to ...


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