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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

CAL FRUIT INTERNATIONAL, INC.,

NO. CIV. 04-2494 FCD/KJM

Plaintiff,

MEMORANDUM AND ORDER

JEANNE SPAICH; INTERNAL

REVENUE SERVICE;

Defendants.

----oo0oo----

On December 14, 2005 interpleader defendant Internal Revenue

Service (the “IRS”) filed a motion to strike interpleader

defendant Jeanne Spaich’s (“Spaich”) claim to the interplead

funds pursuant to Federal Rule of Civil Procedure 37(d), and to

disburse the funds at issue to the United States. In so moving,

the IRS asked the court to impose the ultimate sanction of

dismissal of Spaich’s claim to the funds because she twice failed

to attend her properly noticed and scheduled deposition. 

In its order of February 16, 2006, the court denied the IRS’

motion to strike Spaich’s claim to the funds, finding sanctions

Case 2:04-cv-02494-FCD-KJM Document 46 Filed 06/14/06 Page 1 of 3
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1 Because oral argument will not be of material

assistance, the court orders the matter submitted on the briefs. 

E.D. Cal. L.R. 78-230(h).

under Rule 37(d) unwarranted. The court also deferred ruling on

the IRS’ motion to “disburse [the subject] funds to the United

States” until Spaich’s deposition was completed. (Mem. & Order,

filed Feb. 16, 2006, at 6.) The court allowed the parties to

file supplemental briefing, following the deposition, as to the

IRS’ motion for disbursement of the funds. Said briefing has now

been submitted.1 (Docket #s 39, 41 and 44.)

 Having considered the briefing, the court issues the

following order DENYING the IRS’ motion for disbursement of the

interplead funds as procedurally defective. The court noted in

its February 16, 2006 order, that the IRS’ motion, although not

noticed as such, was a motion for summary judgment since it

sought final resolution of the issue presented by plaintiff’s

complaint, namely, entitlement to the funds. (Mem. & Order at 1

n. 2.) However, as Spaich argues in her supplemental brief,

neither the IRS’ original motion papers or its supplemental

briefing comports with Federal Rule of Civil Procedure 56 or the

court’s local rules for motions for summary judgment. See e.g.,

E.D. Cal. L.R. 56-260 (requiring a “‘Statement of Undisputed

Facts’ which shall enumerate discretely each of the specific

material facts relied upon in support of the motion and cite the

particular portions of any pleading, affidavit, deposition,

interrogatory answer, admission or other document relied upon to

establish that fact.”)

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2 While Spaich argues, in her supplemental brief, that

any motion for summary judgment of the IRS should be denied

because triable issues remain regarding the IRS’ entitlement to

the funds, the court will not rule on the issues until a properly

noticed and briefed motion is before it. (Spaich’s Supp. Brief,

filed May 3, 2006, at 4.) Spaich may reassert her arguments in

opposition to the IRS’ renewed motion.

Accordingly, the court directs the IRS to re-file its motion

for disbursement of funds in compliance with the rules governing

motions for summary judgment.2 Briefing on said motion shall

comply with E.D. Cal. L.R. 78-230. The IRS shall file and serve

its motion within 30 days of the date of this order. 

In light of the instant order, the court vacates the dates

for the final pretrial conference and trial of this matter. 

(Minute Order, filed February 22, 2006, setting FPTC for Aug. 4,

2006 and Trial for Oct. 17, 2006.) The final pretrial conference

shall be held on November 3, 2006 at 2:30 p.m. The Joint Final

Pretrial Statement shall be filed on or before October 27, 2006. 

Trial shall commence on March 20, 2007 at 9:00 a.m. 

IT IS SO ORDERED.

DATED: June 14, 2006

/s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL, Jr.

UNITED STATES DISTRICT JUDGE

Case 2:04-cv-02494-FCD-KJM Document 46 Filed 06/14/06 Page 3 of 3