Estate of Mickey v. United States

71 Fed. Cl. 729, 98 A.F.T.R.2d (RIA) 8160, 2006 U.S. Claims LEXIS 233, 2006 WL 1983293
CourtUnited States Court of Federal Claims
DecidedMay 30, 2006
DocketNo. 535-76T
StatusPublished

This text of 71 Fed. Cl. 729 (Estate of Mickey v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Mickey v. United States, 71 Fed. Cl. 729, 98 A.F.T.R.2d (RIA) 8160, 2006 U.S. Claims LEXIS 233, 2006 WL 1983293 (uscfc 2006).

Opinion

ORDER

MARIAN BLANK HORN, Judge.

The court is in receipt of an April 17, 2006 request by the defendant to file a motion to consolidate and to schedule a status conference in the 31 long since, closed cases listed in Appendix A to this order.1 Plaintiffs’ counsel submitted his opposition to the defendant’s motion on May 18, 2006. The clerk’s office did not file the untimely opposition. Although untimely, in order to provide a complete review of the matters raised, the clerk’s office shall FILE plaintiffs’ opposition, by leave of the court.

This order addresses the defendant’s motion with respect to all 31 cases listed by the defendant, albeit focusing as the defendant did on the proposed lead “sanctions” case, Estate of Larry Mickey, Lynda Mickey Haines, Executrix v. United States, No. 535-76T, as exemplary. The attached 31 cases are part of a larger group of 231 related tax refund cases filed in this court by plaintiffs’ attorney Charles L. Abrahams on behalf of professional Canadian hockey players, beginning in 1976.2 While the cases were active on the court’s docket, defendant sought sanctions against Mr. Abrahams, including in the 31 cases, and Mr. Abrahams did likewise against the defendant in many of the 231 related hockey player, tax refund cases. The court notes that once again Mr. Abrahams also raises the issue of sanctions against the United States in his response to defendant’s current motion.

Defendant’s proposed lead “sanctions” case of Estate of Larry Mickey, Lynda Mickey Haines, Executrix v. United States, No. 535-76T, provides a typical chronology of these cases in which many unexplained delays, motions, including sanctions motions, and false starts occurred. The docket in Mickey reflects that the complaint was filed in 1976. The other cases trickled in thereafter over a period of many years. All the existing, related hockey player, tax refund cases were reassigned to the undersigned judge in 1986, and additional related cases trickled in thereafter, all filed by Mr. Abrahams on behalf of the individual plaintiffs. In Mickey, as in a number of other cases, the plaintiff filed a motion to dismiss, a sanctions motion was filed by the defendant shortly thereafter, and [730]*730judgment subsequently was entered dismissing the case.

For example, plaintiff Lynda Mickey Haines, Executrix, sought tax refunds in the amount of $1,095.06 for 1968, $541.00 for 1970, and $2,201.00 for 1971, for a total of $3,837.06. Due to the taxpayer-specific nature of the complaints and the nature of the claims, trials were planned in Mickey and for many of the cases once it became clear that a negotiated damages result was not appropriate in any of the eases. In Mickey, witness lists were due on September 22, 1993 and exhibit lists were due on October 20, 1993. When plaintiff failed to file either, defendant filed a motion for summary judgment on October 22, 1993, arguing that plaintiff cannot prove the case at trial. At a pretrial conference on October 25, 1993, the court ordered plaintiff to file a response to the defendant’s motion for summary judgment by November 3, 1993, in order to determine whether to proceed with the trial scheduled to commence on November 8,1993. As indicated above, on November 1, 1993, plaintiff instead filed a motion to dismiss the case. On November 19, 1993, defendant filed a motion for sanctions, costs and attorney fees. Therefore, plaintiff sought to withdraw prior to the date the government’s sanctions motion was filed. On December 1, 1995, the court dismissed the Mickey case, with prejudice, for failure to prosecute and also granted the defendant’s motion for summary judgment. Judgment issued on December 12, 1995, dismissing the Mickey complaint, with prejudice.

Defendant complains in its sanctions motion that Mr. Abrahams was required to file pretrial submissions in the Mickey case by October 20, 1993, and did not do so. Defendant’s sanctions motion also notes, however, that on October 22, 1993, Mr. Abrahams provided defendant’s counsel, by facsimile copy, a letter indicating that Mr. Abrahams was going to seek a dismissal of the case. The defendant’s sanctions motion then notes that Mr. Abrahams reiterated his intention to seek a dismissal of the case at the pretrial hearing with the court and with defendant’s counsel on October 25, 1993. Mr. Abrahams alleges in his response to the sanctions motion that he had discovered a few days prior to the October 25, 1993 hearing that the Department of Justice was going to request sanctions against him in the amount of $350,000.00 in a number of cases. On October 31, 1993, Mr. Abrahams, therefore, signed a motion to dismiss the ease, which was filed by the clerk’s office on November 1, 1993. Defendant argues that Mr. Abrahams should have notified the government and the court sooner of his intentions to seek a dismissal of the case. Defendant seeks costs and attorney fees.3

Although Mr. Abrahams initially apologized for the delay in filing the motion to dismiss, he argued that he believed in the merits of the hockey cases. Mr. Abrahams also made reference to his then pending bankruptcy, and stated that he could not afford the “prohibitive costs of litigation.” In his more recent opposition to defendant’s motion, this time, without apologizing, Mr. Abrahams once again offers arguments on the merits and procedural history of the related hockey player, tax refund cases, arguments which were specifically rejected by this court numerous times in its written opinions.

It is noteworthy that both Rule 11 of the Federal Rules of Civil Procedure (Fed.R.Civ. P.) and Rule 11 of the Rules of the United States Court of Federal Claims (RCFC) state that the court, on its own initiative, may give notice and an opportunity to respond to a party for whom sanctions may be in order, however, “[mjonetary sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.” Fed.R.Civ.P. 11(c)(2)(B); RCFC 11(c)(2)(B). The Advisory Committee Notes to the 1993 amendments issued with this rules change state that monetary sanctions shall be imposed “only if the show cause order is issued [731]*731before any voluntary dismissal.... Parties settling a ease should not be subsequently faced with an unexpected order from the court leading to monetary sanctions that might have affected their willingness to ... voluntarily dismiss a case.” Defendant’s formal notice of intent to seek sanctions was served on plaintiffs counsel and filed with the court after plaintiff and plaintiffs counsel had requested to withdraw. The court, however, did not issue a show cause notice in the 31 eases at any time and judgment on the cases has been entered.

In its present motion, defendant cites the opinion issued by the Court of Appeals for the Federal Circuit in Chemical Engineering for the proposition that sanctions may be decided by a trial court after judgment has been entered. Chemical Eng’g Corp. v. Essef Indus., Inc.,

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Bluebook (online)
71 Fed. Cl. 729, 98 A.F.T.R.2d (RIA) 8160, 2006 U.S. Claims LEXIS 233, 2006 WL 1983293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-mickey-v-united-states-uscfc-2006.