Opinion
CIVIL ACTION NO. 01-256-WOB
July 22, 2002
MEMORANDUM ORDER
On April 15, 2002, the court filed a scheduling order instructing the parties to conclude any discovery on or before June 3, 2002, with status reports to be filed the same date. On June 12, 2002, both parties to this action filed their separate reports, advising the court that each party anticipated filing dispositive motions.
This action was initiated by plaintiffs with the filing of a petition seeking to quash one or more summonses issued by the IRS to one or more third-parties, pursuant to 26 U.S.C. § 7609(h). The United States filed an answer to the petition seeking denial of the petition and enforcement of the summonses. The United States has not filed a separate petition to enforce summons pursuant to 27 U.S.C. § 7602, nor has the government filed any dispositive motion to date.
The court's April order instructed the parties to file any such motions on or before July 5, 2002. The United States indicated in its status report that it intended to file a motion for summary denial of the petition to quash and for summary enforcement of the summons on or before June 28, 2002, but no such motion has been filed of record.
On July 3, 2002, the United States filed a motion for a protective order concerning plaintiffs' request for admissions, to which the plaintiffs have filed a response. In addition, on July 5, 2002, plaintiff-petitioners filed a request for an order quashing the third party summons and granting any other appropriate relief, based upon the failure of the United States to timely respond to her request for admissions.
In order to obtain an order permitting even limited discovery in a summons enforcement proceeding, a taxpayer must make a substantial preliminary showing of necessity. See, e.g., United States v. Morgan Guaranty Trust Co., 572 F.2d 36, 42-43 n. 9 (2d Cir.), cert. denied, 739 U.S. 822 (1978). In this case, the plaintiffs' requests for admissions seek information concerning the legal interpretation of various provisions of the Internal Revenue Code, among other topics. The plaintiffs have not made any showing of abuse of process which would entitle them to the requested discovery. Because plaintiffs have no right to discovery in this proceeding, the motion of the United States will be granted. See United States v. Will, 671 F.2d 963, 968 (6th Cir. 1982).
In response to the motion of the United States, the plaintiffs argue that the motion should be denied based upon the failure of the United States to certify that it has in good faith conferred or attempted to confer with plaintiff in an effort to resolve the dispute without court intervention. The plaintiffs are generally correct in their interpretation of the rules governing discovery, see Rule 37, Fed.R.Civ.P.; LR 37.1. However, this court will excuse the lack of a formal certification in this instance because it is clear from the motions filed by both sides that the parties would not be able to resolve this dispute extra-judicially, and because the dispute is not over the scope of discovery but instead concerns the availability of any discovery in this action.
The request of the plaintiffs for an order granting all relief "as may be deemed just and proper" including but not limited to the relief sought in the complaint (quashing the third party summonses) also will be denied. The sole basis relied upon for the relief sought is defendant's failure to answer the outstanding requests for admissions. The plaintiffs cite no authority for their request, but the court construes it as a motion to compel or for sanctions under Rule 37, Fed.R.Civ.P. Because discovery is not warranted in this case, no sanctions are warranted for defendant's failure to respond.
Technically, plaintiffs' motion is also deficient under LR 37.1 and Rule 37 because it fails to include the requisite certification.
Accordingly, IT IS ORDERED HEREIN:
1. Defendant's motion for a protective order [DE #11] is granted;
2. Plaintiffs' construed motion to compel or for sanctions including default judgment [DE #10] under Rule 37 is denied;
3. Either party may file a dispositive motion on or before August 15, 2002. Barring the filing of any dispositive motions, this matter will be set for a hearing before the presiding district judge;
4. The Clerk of Court shall forward to each party with this order a copy of the form used to consent to trial before a magistrate judge. 28 U.S.C. § 636(c). If the parties so consent, they shall execute and file said forms on or before August 15, 2002. Consent to trial before a magistrate judge has no effect on a party's right to a jury trial, but may result in earlier final pretrial and trial dates than otherwise would occur before the district judge.