United States District Court, N.D. Texas, Wichita Falls Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE.
Ray, Jr. UNITED STATES MAGISTRATE JUDGE.
the Court are Third-Party Defendant Rebecca Thorp's
“Amended Motion to Dismiss Under Federal Rules of Civil
Procedure 12(b)(1), 12(b)(6), 12(b)(7), and Argument in
Support Thereof” filed November 28, 2017 (ECF No. 190),
and Defendant Larry Cabelka's “Request to Deny
Rebecca Thorp Motion for Summary Judgment and Brief in
Support of” filed January 2, 2018. ECF No. 207. On
December 12, 2017, the Court entered an order construing
Thorp's Motion to Dismiss as a Motion for Summary
Judgment pursuant to Federal Rules of Civil Procedure 12(d)
and 56 in order to consider the supplemental evidence
submitted by Thorp. ECF No. 200. Based upon a full review of
the relevant pleadings on file and applicable legal
authorities, the undersigned RECOMMENDS that
United States District Judge Reed O'Connor
GRANT Thorp's Motion for Summary
Judgment (ECF No. 190).
United States of America (“United States”)
brought this action against Defendant Larry Cecil Cabelka
(“Cabelka”) on October 19, 2016 to reduce to
judgment over $25.6 million in federal income tax
liabilities. ECF No. 1 at 1, 3. On November 23, 2016, Cabelka
filed his Original Answer and Crossclaim (ECF No. 7),
alleging that various individuals and one company should be
parties to the action.
Defendant's Original Answer and Crossclaim, he alleges
that he was married to Rebecca Thorp during the applicable
tax years, that she “was responsible for turning in the
taxes . . . since she was spouse at the time she is
responsible for half of the taxes if proved owed, ” and
that Thorp “forged signature of Jared Cabelka and used
money out of Jareds [sic] account.” ECF No. 7. Thorp
filed an Answer in response to Cabelka's crossclaims and
denied all allegations. ECF No. 27. She filed her first
Motion to Dismiss on January 23, 2017 (ECF No. 29). The Court
denied Thorp's Motion due to Thorp's potential
liability in the United States' lawsuit against Cabelka.
ECF Nos. 33 and 34.
instant Motion, Thorp seeks dismissal under Federal Rules of
Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7). ECF No.
190. But the Motion does not explain why a Rule 12(b)(7)
dismissal is appropriate in this case. Nevertheless, because
this Court construes the instant Motion as a Motion for
Summary Judgment, the Court need not consider Thorp's
request for dismissal under Rule 12(b) as explained below.
Attached to the Motion were the following: (1) excerpts from
Thorp's deposition (ECF No. 190-“Exhibits 1-2 and
5-12”); (2) a copy of the divorce decree for Defendant
and Thorp dated October 31, 2001 (Id. at Exhibit 3);
(3) a copy of the Judicial Order for Proper Conduct of
Separated or Divorced Parents issued by the District Court of
Kiowa County, Oklahoma (ECF No. Id. at Exhibit 3);
(4) a copy of the Child Support and Child Care Computation
entered by the District Court of Kiowa County, Oklahoma
(Id. at Exhibit 3); and (5) excerpts from IRS
Officer Fredrick Rice's Declaration that was submitted by
the United States in support of its motion for summary
judgment (Id. at Exhibit 4).
the supplemental evidence offered and relied upon by Thorp,
the Court construed her Motion as a Motion for Summary
Judgment pursuant to Federal Rules of Civil Procedure 12(d)
and 56. The Court advised Cabelka of its intention to treat
the motion to dismiss as one for summary judgment and granted
him twenty-one days to present competent summary judgment
evidence to respond to the motion. ECF No. 200. Cabelka filed
a response to the Motion and supporting evidence, including
(1) his own declaration; (2) a court order appointing Thorp
as trustee of the Jared T Cabelka and Jordan L. Cabelka
Trust; (3) a petition filed by “Rebecca Cabelka, as
Trustee of the Jared T. Cabelka and Jordan L. Cableka Trust,
and Jared T. Cabelka” in the District Court of Comanche
County, Oklahoma; (4) the same divorce, custody, and child
support documents filed by Thorp with her Motion; (5)
excerpts of Susan Yates' deposition; and (6) excerpts of
Thorp's depositions. ECF No. 207.
Rule 12(d) Standard
12(d) provides with respect to a motion to dismiss that
if “matters outside the pleadings are presented to and
not excluded by the court, the motion must be treated as one
for summary judgment[.]” Fed.R.Civ.P. 12(d). Under the
12(b)(6) standard, a court cannot look beyond the pleadings.
Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.
1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). Pleadings must show specific, well-pleaded facts, not
mere conclusory allegations to avoid dismissal. Guidry v.
Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The
court must accept those well-pleaded facts as true and view
them in the light most favorable to the plaintiff. Baker,
75 F.3d at 196. “Pleadings” for purposes of
a Rule 12(b)(6) motion include attachments to the complaint.
In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007); Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000). Documents
“attache[d] to a motion to dismiss are [also]
considered part of the pleadings, if they are referred to in
the plaintiff's complaint and are central to her
claim[s].” Collins, 224 F.3d at 499
(quotations omitted); accord Benchmark Elecs., Inc. v.
J.M. Huber Corp., 343 F.3d 719, 725 (5th Cir. 2003).
Lastly, “it is clearly proper in deciding a 12(b)(6)
motion to take judicial notice of matters of public
record.” Norris v. Hearst Trust, 500 F.3d 454,
461 n. 9 (5th Cir. 2007); Cinel v. Connick, 15 F.3d
1338, 1343 n. 6 (5th Cir. 1994).
party presents “matters outside the pleadings”
with a Rule 12(b)(6) motion to dismiss, the Court has
“complete discretion” to either accept or exclude
the evidence for purposes of determining the motion.
Isquith ex rel. Isquith v. Middle S. Utils., Inc.,
847 F.2d 186, 196 n. 3 (5th Cir.1988); accord Gen. Retail
Servs., Inc. v. Wireless Toyz Franchise, LLC,
255 F. App'x 775, 783 (5th Cir. Oct. 5, 2007). “If
. . . matters outside the pleading[s] are presented to and
not excluded by the court, ” however, “the motion
must be treated as one for summary judgment under Rule 56,
” and “[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to
the motion.” Fed.R.Civ.P. 12(d). Rule 12(d) requires
only that the non-movant be given notice that “the
district court could treat the motion as one for summary
judgment, not [whether] the court would in fact do so.”
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284
(5th Cir. 1990) (citing Isquith, 847 F.2d at 193).
“A non-moving party receives adequate notice when it is
aware that the movant has placed matters outside the
pleadings before the district court for its review.”
Guiles v. Tarrant Cnty. Bail Bond Bd., 456 Fed.Appx.
485, 487 (5th Cir. Jan. 5, 2012).
in support of its Rule 12(b)(6) motion, Thorp
submitted documents that are neither attached nor referred to
in Cabelka's answer and crossclaim. Thorp has placed
matters outside of the pleadings before the Court for its
review. Cabelka had an opportunity to respond to Thorp's
Motion and present his own evidence, and is therefore not
prejudiced by conversion of the Motion into one for summary
judgment. See Williams v. Potter, 3:07-CV-1255-L,
2008 WL 1848458, at *5 n. 1 (N.D. Tex. Apr. 23, 2008)
(finding no prejudice where the non-movant had an opportunity
to respond and also filed documents with her response to the
motion to dismiss). Accordingly, the Court considers
Thorp's Motion to be a motion for summary judgment under
Summary Judgment Rule 56
judgment is appropriate when, viewing the evidence and all
justifiable inferences in the light most favorable to the
non-moving party, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(c); Hunt v. Cromartie, 526 U.S.
541, 549 (1999). The appropriate inquiry for the Court to
make 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). The party moving for summary
judgment has the initial burden to prove there is no genuine
issue of material fact for trial. Provident Life &
Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir.
2001). To meet this burden, the movant must identify those
portions of the pleadings, ...