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 is Plaintiff United States' Motion for Summary
Judgment (ECF No. 72) with Brief (ECF No. 73) and Appendix
(ECF Nos. 74-76) in support, filed August 14, 2017;
Defendant's Response to Plaintiff's Motion for
Summary Judgment (ECF No. 188), filed November 22, 2017; and
Plaintiff's Reply to Defendant's Response (ECF No.
193), filed December 6, 2017. On January 4, 2018, Defendant
filed “Defendant Larry Cabelka's Motion to File a
Surreply to Reply Filed by Plaintiff” (ECF No. 208) and
Plaintiff filed a Response in opposition to Defendant's
“Motion to File a Surreply” (ECF No. 213) on
January 9, 2018. In reviewing the evidence for this Findings,
Conclusions, and Recommendation, the undersigned considered
the supplemental pleadings and evidence offered by the
Defendant in opposition to the Plaintiff's Motion for
Summary Judgment. ECF No. 215.
States District Judge Reed O'Connor referred this case to
the undersigned for pretrial management by Order entered on
February 2, 2017. ECF No. 32. After considering the pleadings
of the parties, the summary judgment evidence, and applicable
law, the undersigned RECOMMENDS that Judge
O'Connor GRANT Plaintiff United
States' Motion for Summary Judgment (ECF No. 72).
United States of America brought this action against
Defendant Larry Cecil Cabelka (“Defendant”) 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, Defendant filed his Original Answer and
Crossclaim (ECF No. 7), alleging that Rebecca Thorp, Jared
Cabelka, Bonnie Cabelka, Amanda Slate, Price Farms, LLC, Kent
P. Price, Logsdon Farms, Inc., Chad Logsdon, and Billy
Logsdon should be parties to the action. Logsdon Farms, Inc.,
Chad Logsdon, and Billy Logsdon (ECF No. 11), Amanda Slate
(ECF No. 24), and Rebecca Thorp (ECF No. 29) all filed
motions to dismiss. Each of the movants sought dismissal of
Defendant's “crossclaims” under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). On February 24,
2017, the undersigned entered Findings, Conclusions, and
Recommendation to dismiss Logsdon Farms, Inc., Chad Logsdon,
Billy Logsdon, and Amanda Slate. ECF No. 33. Judge
O'Connor accepted in full the FCR and dismissed
Defendant's claims against the aforementioned parties.
ECF No. 34.
United States filed the instant Motion for Summary Judgment
on August 14, 2017. ECF No. 72. By Court order, Defendant
received an extension of time to file his response, and he
filed his response on October 31, 2017. ECF No. 155.
Defendant subsequently requested and was granted the
opportunity to supplement his response, and filed
supplemental documents on November 14, 2017 (ECF No. 173) and
on November 22, 2017 (ECF Nos. 188-189). The United States
then filed its reply to Defendant's pleadings on December
6, 2017. ECF No. 193.
November 16, 2017, Price Farms, LLC and Kent P. Price filed a
motion to dismiss under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). ECF No. 179. The undersigned entered a
Findings, Conclusions, and Recommendation to dismiss on
December 13, 2017 (ECF No. 202), and Judge O'Connor
accepted in full the FCR and dismissed Defendant's claims
against Price Farms, LLC and Kent P. Price. ECF No. 206. On
November 20, 2017, Jared and Bonnie Cabelka filed a motion to
dismiss under Federal Rules of Civil Procedure 12(b)(2),
12(b)(4), 12(b)(5), and 12(b)(6). ECF No. 182. The
undersigned entered the Findings, Conclusions, and
Recommendation to dismiss both Jared and Bonnie Cabelka on
December 21, 2017 (ECF No. 204), and Judge O'Connor
accepted in full the FCR and dismissed Defendant's claims
against both Jared Cabelka and Bonnie Cabelka. ECF No. 211.
Rebecca Thorp filed a motion to dismiss under Federal Rules
of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7) (ECF No.
190), which the undersigned construed as a motion for summary
judgment. The undersigned recommended that Judge O'Connor
grant summary judgment to Rebecca Thorp in a Findings,
Conclusions, and Recommendation dated January 8, 2018. ECF
Summary Judgment Standard
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).
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,
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, 325 (1986).
response, the nonmovant “may not rest upon mere
allegations contained in the pleadings, but must set forth
and support by summary judgment evidence specific facts
showing the existence of a genuine issue for trial.”
Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir. 1998) (citing Anderson, 477 U.S. at
255-57). Once the moving party makes a properly supported
motion for summary judgment, the nonmoving party must look
beyond the pleadings and designate specific facts in the
record to show that there is a genuine issue for trial.
Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir.
party opposing summary judgment is required to identify
specific evidence in the record and to articulate the precise
manner in which that evidence supports his claim.
Ragas, 136 F.3d at 458. The citations to evidence
must be specific, and “a party must support each
assertion by citing each relevant page of its own or the
opposing party's appendix.” Local Civil Rules of
the Northern District of Texas 56.5(c). Rule 56 does
not impose a duty on the court to “sift through the
record in search of evidence” to support the
non-movant's opposition to the motion for summary
judgment. See Skotak v. Tenneco Resins, Inc., 953
F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248.
Disputed fact issues that are “irrelevant and
unnecessary” will not be considered by a court in
ruling on a summary judgment motion. Id. If the
nonmoving party fails to make a showing sufficient to
establish the existence of an element essential to its case
and on which it will bear the burden of proof at trial,
summary judgment must be granted. Celotex, 477 U.S. at
Pro Se Standard
se plaintiffs are held to a less stringent pleading
standard than documents drafted by attorneys and are entitled
to a liberal construction, allowing all reasonable inferences
that can be drawn from their pleadings.” Morgan v.
Fed. Exp. Corp., 114 F.Supp.3d 434, 436 (S.D. Tex. 2015)
(citing Haines v. Kerner, 404 U.S. 519, 521 (1972)).
Nevertheless, pro se plaintiffs must “still
comply with the rules of civil procedure and make arguments
capable of withstanding summary judgment.”
Ogbodiegwu v. Wackenhut Corr. Corp., 202 F.3d 265
(5th Cir. 1999) (citing Grant v. Cellular, 59 F.3d
523, 524 (5th Cir. 1995)). And “while courts liberally
construe the pleadings of pro se litigants, courts
are not obligated under Federal Rule of Civil Procedure
56 [ ] to search the record to find evidence supporting
a party's opposition to a summary judgment motion.”
Murray v. Int'l Bus. Machines Corp., No.
3:14-CV-1809-M BF, 2015 WL 4635776, at *1 (N.D. Tex. Aug. 4,
2015) (citations omitted).
Issues Raised in Defendant's Response to Plaintiff's
Motion for Summary Judgment.
an undisputed fact that Defendant has failed to file any
federal income tax returns with the Internal Revenue Service
(“IRS') since the tax year 1990. The United States
alleges that Defendant is indebted to the United States in
the amount of $26, 400, 532.02 as of June 30, 2017, for the
tax years 1997-2003 and 2005 -2009. ECF No. 72. Plaintiff
argues that proper notices of the tax assessments and demands
for payment were sent to Defendant, and that the Defendant
“failed, neglected, or refused to voluntarily pay his
income tax liabilities.” Id. at 3. In his
response, Defendant alleges that the statute of limitations
ran on the tax assessments against him, that he never
received proper notice of the tax assessments, and that the
IRS Forms 4340 were improperly completed. ECF No. 155 at 1-2.
response to the procedural issues raised in Defendant's
response, Plaintiff argues that it properly sent Defendant a
notice of deficiency as required under Section 6212(a),
(b)(1) of the Internal Revenue Code (“IRC”). ECF
No. 193 at 12. To evidence proper notice, Plaintiff provided
a Declaration of IRS Revenue Office David Dodgen
(“Dodgen”) indicating that the statutory notice
of deficiency or letter noticing Defendant of an examination
audit deficiency were sent to Defendant to his last known
address. ECF No. 74-4. The United States provides the
following evidence to demonstrate proper notice was given to
the Defendant regarding the tax assessments at issue in this
case: (1) the deposition of Susan Yates
(“Yates”), a former IRS agent who worked on
Defendant's case, who testified the agency sent the
notice of deficiency to three separate addresses (ECF No.
193-2 at 9); (2) a copy of the notice of deficiency dated
June 22, 2005, sent to “Larry C. Cabelka, Post Office
Box 295, Megargel, Texas 76370” (ECF No. 76-9); (3) a
copy of the notice of deficiency dated June 22, 2005 sent to
“Larry C. Cabelka, 232 Northeast 46th, Lawton, Oklahoma
73501” (ECF No. 76-1); and (4) a copy of the notice of
deficiency dated June 22, 2005 sent to “Larry C.
Cabelka, Post Office Box 10120, Lawton, OK 73507” (ECF
response, Defendant argues that he has “never signed
for any of the audit notices or notices for assessment”
and that the Plaintiff fails to provide evidence of proof of
service. ECF No. 155 at 12. Defendant also challenges the
deposition testimony of Yates, arguing that the testimony she
made about contacting the Defendant at a number some time in
2005 was not registered to him until 2007. ECF No. 155 at 12.
However, this conflicting statement does not establish that
Defendant did not receive notice of the tax assessments
against him. “Section 6212 does not require the IRS to
prove that [the Defendant] received the notice, only that it
was mailed to [his] last known addresses.” McCarty
v. United States, 929 F.2d 1085, 1088 (5th Cir. 1991)
(internal quotations and citations omitted). The government
has submitted sufficient evidence to establish that it sent
the Defendant the required notices under the IRC.
regard to the Defendant's statute of limitations defense,
the Court finds that the Plaintiff's lawsuit was timely
filed pursuant to Section 6502(a)(1) of the IRC. See
United States v. Fernon, 640 F.2d 609, 611-12, n.7 (5th
Cir. 1981) (holding that the United States is subject to the
ten-year statute of limitations found in § 6502(a)(1) of
the IRC). The United States provides that the instant lawsuit
was filed less than ten years after the oldest assessments
were made in 2006. ECF No. 74-1. Further, Defendant does not
identify specific ...