No. 01-1048United States District Court, W.D. Tennessee, Eastern Division
June 5, 2002
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
JAMES D. TODD, United States District Judge
Plaintiff has filed this action against the United States of America disputing the determination by the Internal Revenue Service that Plaintiff is liable for a trust fund recovery penalty assessed upon Frankie’s Piccooo Cuclna, Inc. Defendant filed an answer and counter-claim seeking to reduce to judgment the penalty assessed against Plaintiff. On October 3, 2001, Olie H. Phillips Jr. moved to withdraw as counsel for Plaintiff due to health complications. The court granted said motion on October 10, 2001, and required Plaintiff to inform the court of Plaintiff’s new counsel within thirty (30) days. On October 30, 2001, this court entered an order giving Plaintiff fifteen (15) days to show cause why his action should not be dismissed for failure to advise the court of Plaintiff s current address. Plaintiff did not respond to either of the court’s October orders and the court dismissed Plaintiff’s cause of action for failure to advise the court of Plaintiff’s current address, failure to comply with the court’s order to show cause, and failure to comply with the court’s order to inform the court of Plaintiff’s new counsel.
On April 19, 2002, Defendant moved for summary judgment on its counter-claim against Plaintiff. Plaintiff has not responded to this motion. For the following reasons, Defendant’s motion for summary judgment is GRANTED.
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. To prevail on a motion for summary judgment, the moving party has the burden of showing the “absence of a genuine issue of material fact as to an essential element of the nonmovant’s case.” Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The moving party may support the motion with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v.Catrett, 477 U.S. 317, 324 (1986). The opposing party may not rest upon the pleadings but, “by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e).
“If the defendant . . . moves for summary judgment . . . based on the lack of proof of a material fact, . . . [t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The court’s function is not to weigh the evidence, judge credibility, or in any way determine the truth of the matter. Anderson,477 U.S. at 249. Rather, “[t]he inquiry on a summary judgment motion . . . is . . . `whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a mailer of law.'” Street,886 F.2d at 1479 (quoting Anderson, 477 U.S. at 251-52). Doubts as to the existence of a genuine issue for trial are resolved against the moving party.Adickes v. S. H. Kress Co., 398 U.S. 144, 158-59 (1970).
If a party does not respond to a motion for summary judgment, the Federal Rules of Civil Procedure provide that “summary judgment, if appropriate, shall be entered against him.” Fed.R.Civ.P. 56(e). The fact that Plaintiff did not respond does not require granting Defendant’s motion. However, if the allegations of the counter-claim are proven by Defendant’s affidavits and Defendant is entitled to judgment as a mailer of law on those facts, then summary judgment is appropriate.
In support of its motion for summary judgment, Defendant presented evidence that the Internal Revenue Service found Plaintiff liable pursuant to 26 U.S.C. § 6672 in the amount of $75,484.07 for withholding employment taxes. See Defendant’s Motion for SummaryJudgment, at Exhibit 1. As of February 4, 2002, the total penalty against Plaintiff including interest until that date, was $108,452.89. See id. Even though Plaintiff’s claim has been dismissed, Plaintiff was entitled to present evidence demonstrating why this penalty was inappropriate or why the penalty should not be reduced to judgment. Plaintiff failed to do so; thus, summary judgment is appropriate.
Defendant has presented the court with a factual basis for summary judgment to which Plaintiff has not responded. Accordingly, Defendant’s motion for summary judgment is GRANTED.
The Clerk is directed to enter judgment for the Defendant in the amount of $108,452.89, plus statutory interest accruing from February 4, 2002 until paid.