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United States v. Cabelka

United States District Court, N.D. Texas, Wichita Falls Division

January 8, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
LARRY CECIL CABELKA, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE.

          Hal R. Ray, Jr. UNITED STATES MAGISTRATE JUDGE.

         Before 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).

         I. BACKGROUND

         Plaintiff 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.

         In 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.

         In the 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).

         Due to 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.

         II. LEGAL STANDARD

         A. Rule 12(d) Standard

         Rule 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).

         When a 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).

         Here, 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 Rule 56.

         B. Summary Judgment Rule 56

         Summary 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, ...


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