United States v. Fred A. Arnold, Inc.

The United States brought this action under § 3505(a) of the Internal Revenue Code, seeking to collect from Fred A. Arnold, Inc., a general contractor, the withholding and F.I.C.A. taxes which its subcontractor, Pannell Brothers Construction Co., failed to pay on behalf of its employees. Arnold appeals from the district court’s grant of the government’s motion for summary judgment. 400 F.Supp. 1118 . This court has jurisdiction under 28 U.S.C. § 1291 .

The defendant demanded a trial by jury, to which it was entitled in this kind of action. United States v. J. B. Williams Co., 498 F.2d 414 (2d Cir. 1974); Damsky v. Zavatt, 289 F.2d 46 (2d Cir. 1961). After substantial discovery, the United States filed a motion for summary judgment on the day the trial was to begin. The court heard oral argument that afternoon, and gave appellant twenty-four hours to file a response. Appellant responded and filed a cross-motion for summary judgment. The district court aborted the jury trial when it granted the government’s motion.

We question whether this case was an appropriate one for summary judgment. It is well-settled in this circuit and others that the filing of cross-motions for summary…