Lead Opinion
John H. Carney appeals from an adverse summary judgment in his challenge to the validity of tax deficiency claims made against him by the Internal Revenue Service (IRS). The deficiencies stem from the IRS’s determination that certain partnership investments by Carney lacked economic substance, and hence could not support tax credits and depreciation deductions that Carney claimed. We AFFIRM the grant of summary judgment based on Carney’s Rule 36(a) deemed admission that the proof of claim filed by the IRS in his bankruptcy proceeding accurately described his tax obligations.
Factual AND PeoCedural Baokground
Carney, an attorney licensed to practice in Texas, participated as a limited partner in the Cinema ’84 and Cinema ’85 limited partnerships (the Cinema Partnerships) from 1984 through 1989. On his tax returns for these periods, Carney claimed deductions, depreciation, and tax credits with respect to his investments in the Cinema Partnerships. In 1991, the IRS determined that the Cinema Partnerships were tax shelter investments lacking economic substance. Consequently, credits and deductions claimed by individual Cinema partners, such as Carney, were no longer viable. In 1992, the Cinema Partnerships’ tax matters partner petitioned the Tax Court for judicial review of the IRS’s determination.
In January 1995, Carney filed a petition for relief under Chapter 11 of the Bankruptcy Code.
The IRS assessed the 1986, 1987 and 1989 deficiencies and penalties on July 16, 1997, and the 1984 and 1985 deficiencies and penalties on August 11, 1997. When the IRS attempted to collect the assessments in 1998, Carney commenced the present action in the bankruptcy court seeking a determination that his obligations had been discharged. Carney later amended his complaint to challenge the validity of the claimed deficiencies. After a period of discovery and negotiation, the IRS moved for summary judgment in September 1999. In addition to responding to the IRS’s motion for summary judgment, Carney filed a motion to compel responses to certain interrogatories and requests for production previously served on the IRS, as well as a request for a scheduling order setting a future date to hear summary judgment arguments.
The bankruptcy court granted the IRS’s motion for summary judgment. As to the validity of the deficiency claims, the court stated that Carney failed to produce sufficient evidence creating a material fact question with respect to his claim for the deductions and tax credits. Alternatively, the court held that Carney’s failure to respond to the IRS’s requests for admission created a deemed admission conclusively establishing the validity of the IRS’s claims. With respect to the dischargeability of the tax claims, the court relied on Bankruptcy Code sections 528(a)(1)(A) and 507(a)(8)(A)(iii) to hold that the taxes owed were non-dischargeable because they were assessable, but not assessed at the time that Carney filed his bankruptcy petition. See 11 U.S.C. §§ 523(a)(1)(A); 507(a)(l)(A)(iii). The court denied Carney’s discovery requests, concluding that Carney “could have and should have been diligent in filing his Motion to Compel Discovery Responses, but he was not.” The court suggested that Carney made his motion to compel discovery “as some sort of defensive measure in order to distract the Court’s attention from the Summary Judgment Motion.” Carney appealed these rulings to the district court, which affirmed summarily. This appeal followed.
DISCUSSION
Pursuant to section 158(d) of Title 28, this Court exercises jurisdiction over the bankruptcy court’s final orders fixing the amount of Carney’s tax debt and holding that debt to be non-dischargeable. 28 U.S.C. § 158(d). Carney has waived the dischargeability issue on appeal by failing to offer a legal or factual explanation of how the bankruptcy court erred when it held his tax obligations non-dischargeable. See American States Ins. Co. v. Bailey,
Carney essentially argues that the bankruptcy court granted summary judgment in this case prematurely, before the IRS had responded to his discovery requests. His appellate brief and oral argument have both focused on the bankruptcy court’s consideration of allegedly improper evidence introduced by the IRS to challenge Carney’s credibility with respect to his motion to compel discovery. If the bankruptcy court considered improper evidence when denying his motion to compel, Carney reasons that the grant of summary judgment should be overturned. In the alternative, Carney maintains that his affidavit testimony creates a genuine issue of material fact as to his entitlement to claimed credits and deductions.
Carney’s arguments neglect his own failures to comply with the Federal Rules of Civil Procedure governing discovery. As explained below, Carney’s failure to respond to the IRS’s Federal Rule of Civil Procedure 36 request that he admit the accuracy of the IRS’s proof of claim conclusively established the validity of that claim.
We review orders granting summary judgment de novo, guided by the same standard as the bankruptcy and district courts: Federal Rule of Civil Procedure 56. Stults v. Conoco, Inc.,
Federal Rule of Civil Procedure 36(a)states in pertinent part:
A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.
The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may*419 agree to in writing, subject to Rule 29, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter....
Fed. R. Civ. Peoo. 36(a)(West 2001). Rule 36 allows litigants to request admissions as to a broad range of matters, including ultimate facts, as well as applications of law to fact. See, e.g., Stubbs v. Comm’r Internal Rev.,
This Circuit has stressed that a deemed admission can only be withdrawn or amended by motion in accordance with Rule 36(b). American Auto.,
Carney does not dispute that he failed to respond to the IRS’s requests for admission. Instead, he first argues that he and the IRS entered into informal stipulations pursuant to Rule 29 according to which he had 10 days to respond to the requests for admission from the date that the IRS complied with its discovery obligations to him. This argument is without merit because Carney fails to support his Rule 29 argument by identifying a written stipulation agreement altering the 30-day time limit for replying to the IRS’s discovery requests. Fed.R.Civ.P. 29(a) (requiring “written stipulation” for extension of response periods provided for in the rules of procedure).
Alternatively, Carney argues that the bankruptcy court should have allowed him to file responses to the IRS’s requests for admission out of time. This argument fails because Carney never filed a Rule 36(b)
Federal Rule of Civil Procedure 56(c) specifies that “admissions on file” can be an appropriate basis for granting summary judgment. Fed. R. Civ. Peoc. 56(e). Since Rule 36 admissions, whether express or by default, are conclusive as to the matters admitted, they cannot be overcome at the summary judgement stage by contradictory affidavit testimony or other evidence in the summary judgment record. Dukes v. South Carolina Ins. Co.,
Carney did not avail himself of the procedural mechanism for attempting to avoid the effect of his default. Consequently, application of this Court’s precedent applying the plain language of Rule 36 compels us to conclude, on the record before us, that the validity of the tax deficiencies stated in the IRS’s proof of claim has been conclusively established. We note that
We recognize the potential harshness of this result. The failure to respond to admissions can effectively deprive a party of the opportunity to contest the merits of a case. This result, however, is necessary to insure the orderly disposition of cases; parties to a lawsuit must comply with the rules of procedure. In addition, the harshness is tempered by the availability of the motion to withdraw admissions, a procedure which [Carney] did not employ.
Kasuboski,
Because of Carney’s default admissions, we need not explore in detail the bankruptcy court’s alternative holding that summary judgement was appropriate based on the absence of genuine material fact.
Conolusion
For our litigation system to work effectively, litigants must comply with the Federal Rules of Civil Procedure. Carney’s plight in this case exemplifies how repeated failures to do so ultimately preclude a party from presenting the merits of his case. Carney complains that the bankruptcy court should not have rendered summary judgment based on a default admission, but he never moved the court to withdraw the admission. Similarly, Carney argues that the court should have deferred granting summary judgment to allow for more discovery, but he filed only a motion to compel discovery at the same time as his reply to the IRS’s motion for summary judgment, not a Rule 56(f) motion as required in this Circuit. Carney’s pattern of non-responsiveness to the mandates of our rules of procedure require affirmance of the summary judgment against him.
Notes
. On September 1, 2000, the Tax Court dismissed the Cinema Partnerships proceedings for failure to prosecute.
. As a partner, Carney was originally a party to Cinema Partnerships' Tax Court proceeding. Carney's bankruptcy petition severed him from that case, however. See 26 U.S.C. §§ 6226(d)(1)(A), 6231(c)(2); Treas. Reg.
. Even if Carney had not waived error, his failure to present any evidence to rebut the IRS’s explanation that his tax obligations fall within the exception to discharge described in
. Bankruptcy rule 7036 provides that Federal Rule of Civil Procedure 36 operates in bankruptcy proceedings. Bankr R. 7036.
. In Dukes, we affirmed a district court's decision to strike out of time responses to a Rule 36 request for admissions based on the court's findings that the plaintiffs had been "evasive and dilatory throughout the litigation.” Dukes,
. Various federal courts from around the country have relied on default admissions to support a grant of summary judgment. See, e.g., United States v. 2204 Barbara Lane,
. See Stubbs,
. The bankruptcy court rejected Carney’s affidavit testimony as conclusory, and thus determined that Carney had presented “no competent summary judgment evidence” supporting his claims to the deductions and credits. Because Carney’s affidavit contains specific factual allegations supporting its conclusions, we would have had reservations dismissing it simply as conclusory. See Rushing v. Kansas City Southern Ry. Co.,
.We note, however, that Carney again failed to properly raise this issue before the bankruptcy court by filing a Rule 56(f) motion and explaining specifically how additional discovery would aid his attempt to respond to the IRS’s motion for summary judgment. See Robbins v. Amoco Prod. Co.,
. Carney argues that entry of testimony regarding the facts surrounding a state court contempt order was error, since the order was vacated on appeal to the Texas Supreme Court. See Ex parte Carney,
Dissenting Opinion
Dissenting:
I respectfully dissent. The majority opinion affirms the summary judgment entered against plaintiff on the sole basis that plaintiff did not timely file a denial of the following request for admission: “You owe the taxes reflected on the Proof of Claim attached hereto as Government Exhibit 1.”
Rule 36(a) of the Federal Rules of Civil Procedure permits the service by one party upon the other of a “written request for the admission ... of the truth of any matters within the scope of Rule 26(b)(1)
Clearly, Rule 36 can be used to request admissions of fact which effectively dispose of all of the issues in a case, with the result that the propounding party would be entitled to summary judgment in the absence of a denial. But the request at issue was not that plaintiff admit any facts, but that he admit that he owed the taxes which in his complaint he denied owing.
Clearly, Carney displayed a complete lack of diligence in failing to respond to the request that he admit that he owed the taxes at issue and in failing to move to withdraw the admission pursuant to Rule 36(b). Such conduct on the part of an attorney is not to be condoned. However, Carney made it clear to ‘the trial court
Plaintiff’s various other written submissions pending at the time summary judgment was entered should have been construed as a request to withdraw the deemed admission that his claim lacked merit. His affidavit evidence submitted in response to the motion for summary judgment created genuine issues of material fact sufficient to defeat that motion. I would reverse the summary judgment and remand.
. Rule 26(b)(1) permits discovery regarding any matter relevant to the claim or defense of any party.