Eilertson v. United States

211 B.R. 526, 79 A.F.T.R.2d (RIA) 2225, 1997 U.S. Dist. LEXIS 5238, 1997 WL 382119
CourtDistrict Court, D. South Carolina
DecidedMarch 31, 1997
DocketNo. 3:96-600-17BC
StatusPublished
Cited by4 cases

This text of 211 B.R. 526 (Eilertson v. United States) is published on Counsel Stack Legal Research, covering District Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eilertson v. United States, 211 B.R. 526, 79 A.F.T.R.2d (RIA) 2225, 1997 U.S. Dist. LEXIS 5238, 1997 WL 382119 (D.S.C. 1997).

Opinion

ORDER

JOSEPH F. ANDERSON, Jr., District Judge.

This matter is before the court for review of the Magistrate Judge’s Report and Rec[527]*527ommendation made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 19.02.

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).

This is an appeal from the United States Bankruptcy Court which granted the motion of the United States for dismissal of the appellants’ bankruptcy case and adversary proceeding. After the appeal was noted, this ease was automatically referred to a United States Magistrate Judge because the plaintiffs are both proceeding pro se. After a thorough and careful review of the record, the Magistrate Judge has filed a Report and Recommendation suggesting that the appeal be dismissed and that various procedural motions by the appellants be denied. Plaintiffs were advised of their right to file objections to the Report and Recommendation of the Magistrate Judge. On December 11, 1996, they filed a thirty-six page objection memorandum with the clerk.

While the Report and Recommendation and appellants’ objections were pending before the court, the clerk reassigned the case from the Honorable Patrick Michael Duffy to the undersigned as part of the clerk’s annual reassignment program designed to equalize the number of cases given to each United States District Judge. Thus the matter now appeal’s ripe for review by this court.

As the Magistrate Judge’s Réport and Recommendation indicates, the appellant’s filed a petition for bankruptcy under Chapter 11 and also filed an adversary proceeding against the United States and hundreds of other defendants, collectively referred to as “the enterprise.” In the adversary proceeding, the appellants assert numerous claims, including a conspiracy against them arising out of the Third Amendment to the United States Constitution (prohibiting the quartering of soldiers during peace time). The United States moved before the bankruptcy court to dismiss the bankruptcy action based on the debtors’ lack of good faith, because they, by their own admission, have not filed income tax returns for the years 1987-1994. The United States also filed a motion to dismiss the adversary proceeding for lack of proper service, failure to state a claim, lack of subject matter jurisdiction, and mootness (if the bankruptcy case were to be dismissed). After a hearing on these motions, the bankruptcy judge dismissed the bankruptcy case and the adversary proceeding. The bankruptcy case was dismissed for the lack of good faith arising out of the failure to file tax returns, and the adversary proceeding was dismissed due to the dismissal of the bankruptcy case and the failure to effect proper service.

As noted previously, plaintiffs took a timely appeal to this court. They also filed the following motions:

(1) “Emergency motion for injunction and relief from orders and demand for the waiver of sovereign immunity filed on 11-11-88”;
(2) “Motion to Expedite Consideration of Petition for Extraordinary Writ”;
(3) Motion for Denial of Appointment of Kenneth Starr in the Whitewater investigation; and
(4) Motion for appointment of counsel.

In a comprehensive Report and Recommendation, the Magistrate Judge suggests that the Bankruptcy Court’s decisions should be affirmed and that all of the motions filed in this court should be denied. The Magistrate Judge had no difficulty in concluding that the bankruptcy judge correctly dismissed the proceeding for lack of good faith, noting that the plaintiffs candidly admit that they have not filed tax returns. As the Magistrate Judge observes, several bankruptcy courts have dismissed the cases holding that the debtors refusal to file income tax returns constitutes bad faith. With regard to the adversary proceeding, the Magistrate Judge has carefully combed the record and finds no evidence of proper service on the [528]*528defendant. Moreover, because the bankruptcy proceeding must be dismissed, the adversary proceeding must be dismissed as well. As to the related motions, the Magistrate Judge denied appellant’s motion for appointment of counsel and recommended that the remaining procedural motion be denied as well.

In their lengthy objection memorandum, appellants take issue with virtually every phrase of the Magistrate Judge’s Report and Recommendation, referring by page and line to various statements to the Magistrate Judge and then purporting to object to these statements. Unfortunately, however, the objection memorandum- — though lengthy — is of little aid to the court in reviewing the legal principles upon which the Magistrate Judge relied. Despite its length, the objection memorandum does not adequately explain why the appellants’ failure to file tax returns should be excused, nor does the objection memorandum point to documents in the record demonstrating that service has been properly accomplished. Additionally, the objection memorandum offers no support for the proposition that the Magistrate Judge’s recommendations and order on the procedural motions should be overturned.

After carefully reviewing the record, the Report and Recommendation of the Magistrate Judge, and the appellant’s objections thereto, the court is of the opinion that the Magistrate Judge’s recommended disposition is correct. The appeal of the dismissal of the bankruptcy case and the adversary proceeding is hereby dismissed. The Magistrate Judge’s denial of the motion to appoint counsel is affirmed. All remaining motions are denied and this action is hereby dismissed.

IT IS SO ORDERED.

MAGISTRATE JUDGE’S ORDER AND RECOMMENDATION

McCROREY, United States Magistrate Judge.

This is an appeal pursuant to 28 U.S.C. § 158(a) from orders of the Honorable J. Bratton Davis, Chief Judge of the United States Bankruptcy Court for the District of South Carolina, granting the motions of the United States for the dismissal of the appellants’ bankruptcy case and adversary proceeding. Appellants Richard Arthur Eilertson and Mildred Carlson Eilertson appeared pro se in their bankruptcy proceeding and also represent themselves in this appeal. The case was automatically referred to the undersigned pursuant to Local Rule 19.02(B)(2)(e). The appellants filed their brief on March 20, 1996. The brief of the United States was filed on April 4, 1996. The appellants filed a response to the brief of the United States on May 8, 1996. The record of the Bankruptcy Court, including a transcript of the bankruptcy hearing, has been submitted to this court.

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Cite This Page — Counsel Stack

Bluebook (online)
211 B.R. 526, 79 A.F.T.R.2d (RIA) 2225, 1997 U.S. Dist. LEXIS 5238, 1997 WL 382119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eilertson-v-united-states-scd-1997.