U.S. v. Talmage, 1:16-cv-00019-DN-PMW. (2018)
Court: District Court, D. Utah
Number: infdco20181119743
Visitors: 2
Filed: Nov. 07, 2018
Latest Update: Nov. 07, 2018
Summary: REPORT AND RECOMMENDATION PAUL M. WARNER , Chief Magistrate Judge . District Judge David Nuffer referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. 636(b)(1)(A). 1 On November 6, 2018, this court held a hearing on an order to show cause related to defendants Ronald B. Talmage and Annette C. Talmage's (the "Talmages") failure to appear at noticed depositions. Pursuant to 28 U.S.C. 636(e)(6)(B)(iii), this court hereby certifies the following facts to the dis
Summary: REPORT AND RECOMMENDATION PAUL M. WARNER , Chief Magistrate Judge . District Judge David Nuffer referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. 636(b)(1)(A). 1 On November 6, 2018, this court held a hearing on an order to show cause related to defendants Ronald B. Talmage and Annette C. Talmage's (the "Talmages") failure to appear at noticed depositions. Pursuant to 28 U.S.C. 636(e)(6)(B)(iii), this court hereby certifies the following facts to the dist..
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REPORT AND RECOMMENDATION
PAUL M. WARNER, Chief Magistrate Judge.
District Judge David Nuffer referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).1 On November 6, 2018, this court held a hearing on an order to show cause related to defendants Ronald B. Talmage and Annette C. Talmage's (the "Talmages") failure to appear at noticed depositions. Pursuant to 28 U.S.C. § 636(e)(6)(B)(iii), this court hereby certifies the following facts to the district court for contempt proceedings. This certification is also provided pursuant to 18 U.S.C. § 401, which provides:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . . [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.
CERTIFIED FACTS
1. The complaint in this action was filed on February 18, 2016.2
2. The Talmages were named as defendants in the complaint.3
3. In attempting to serve the Talmages with the complaint, the United States took the following actions:
a. Private investigator and process server Robert W. Brunson ("Brunson") and Eric Mahoney ("Mahoney"), a paralegal for the U.S. Department of Justice, Tax Division, Civil Trial Section, Western Region, did extensive research to determine their residence.4
b. The United States determined that that the Talmages lived at a property in Liberty, Utah (the "Liberty Property").5
c. Brunson attempted to serve the Talmages at the Liberty Property ten separate dates between February 29 and April 14, 2016.6
d. While attempting to serve the Talmages at the Liberty Property, Brunson observed that the Liberty Property was mislabeled with a house number that does not match U.S. Post Office or Weber County Records.7
e. Brunson also attempted to serve the Talmages at their local church on three separate Sundays between March 13 and 27, 2016.8
4. Unable to locate or serve the Talmages personally, the United States filed a motion for leave to serve the Talmages by alternative means.9 On May, 19, 2016, the court granted the United States leave to serve the Talmages by publication.10
5. Service of process upon the Talmages was completed on June 23, 2016.11
6. Default Judgment was entered against the Talmages on August 26, 2016.12
7. On February 27, 2018, the United States personally served the Talmages with deposition subpoenas at an RV park in Dripping Springs, Texas (the "RV Park").13
a. The process server approached a travel trailer and saw a man and a woman through the window.14 The process server reported that he could see their faces in the window, noting that his "face was about 3 inches from her's [sic]."15 The process server reported that he could see both people and they matched the driver's license and passport pictures of the Talmages with which he had been provided.16
b. The process server reported that he said "Hi, Mrs. Talmage" to which the woman inside replied "Hi."17
c. The process server identified himself, notified the man and woman they had been served with court papers, and slid the notices between the window and the screen.18
d. The man and woman denied they were the Talmages, but the process server also confirmed the Talmages' identities by checking with the RV Park managers who recognized their photographs.19
e. The process server also obtained an email address for the Talmages from the RV Park managers, which they used to correspond with the Talmages.20
8. Depositions were set for August 1, 2018 and August 2, 2018 in Austin, Texas, near Dripping Springs, Texas.21
9. The United States provided Sioux Falls, South Dakota on August 29 and 30, 2018 as an alternative time and location because the Talmages had an active mailing address there.22
10. On August 1 and 2, 2018, counsel for the United States appeared in Austin, Texas for the depositions, but the Talmages failed to appear.23
11. The United States emailed and called the Talmages at what were believed to be current email addresses and a current phone number, but the Talmages did not respond.24
12. On August 29 and 30, 2018, counsel for the United States appeared in Sioux Falls, South Dakota for the depositions, but the Talmages again failed to appear.25
13. The United States again tried to contact the Talmages, but the Talmages again did not respond.26
14. On September 17, 2018, the United States filed a motion for an order to show cause ordering the Talmages to show cause why they did not appear at their depositions.27
15. On September 25, 2018, this court issued an order to show cause28 ordering that:
a. The Talmages should appear at a hearing on 11/6/2018 at 11:00 a.m.29
b. If the Talmages had any defense to present or opposition to the United States' motion to file it at least fourteen (14) days prior to the hearing.30
c. Any uncontested allegation in the United States's motion would be considered admitted.31
d. Failure to respond could result in sanctions, including finding the Talmages in contempt and issuing bench warrants for their arrest.32
16. On October 5, 2018, the United States filed a certificate of service33 for the order to show cause certifying that:
a. The United States had sent a copy of the order to show cause to the Talmages last known address in South Dakota pursuant to Fed. R. Civ. P. 5(b)(2)(C).34 The United States later learned that it could not be delivered because the mailbox was no longer active.35
b. The United States also emailed the Talmages at the email address which the Talmages had used to register at the RV Park where the United States served them their deposition subpoenas.36 The United States represented to this court that it has not received a bounce-back message indicating that this email address is no longer active.37
17. A hearing on the order to show cause was held before Chief Magistrate Judge Paul M. Warner on November 6, 2018 at 11:00 a.m.38
a. Counsel for the United States appeared telephonically pursuant to the court's order.39
b. The Talmages did not appear.40
18. This court issued bench warrants for Ronald B. Talmage and Annette C. Talmage.41
CERTIFICATION
This court certifies the foregoing facts to the district judge under 28 U.S.C. § 636(e)(6)(B)(iii) as constituting civil contempt. The record shows that the Talmages have demonstrated a pattern of avoiding service and ignoring the orders of the court. Accordingly, IT IS HEREBY RECOMMENDED that, when the bench warrants for Ronald B. Talmage and Annette C. Talmage are executed, the district judge establish a day certain to show cause why the Talmages should not be adjudged in contempt and suffer the imposition of sanctions.
FootNotes
1. See docket no. 57.
2. See docket no. 2.
3. See id.
4. See docket no. 61-1 (Brunson Decl.) at ¶¶ 4-6, 9-30; docket no. 16-2 (Mahoney Decl.) at ¶¶ 2-6.
5. See Brunson Decl. at ¶¶ 10, 32.
6. See id. at ¶¶ 4, 7, 11.
7. See id. at ¶¶ 4, 34.
8. See id. at ¶¶ 19-23.
9. See docket no. 16.
10. See docket no. 18.
11. See docket nos. 19, 20, 21, 22.
12. See docket no. 38.
13. See docket no. 175-2.
14. See id. at 24.
15. See id.
16. See id.
17. See id.
18. See id.
19. See id.
20. See id.
21. See id. at 3.
22. See id.
23. See docket no. 175-3.
24. See docket nos. 175-3, 175-4.
25. See docket no. 175-5.
26. See docket nos. 175-5, 175-6.
27. See docket no. 175.
28. See docket no. 178.
29. See id.
30. See id.
31. See id.
32. See id.
33. See docket no. 183.
34. See docket no. 183-1.
35. See docket no. 183 at 2 n.2; docket no. 183-1.
36. See docket no. 183-2.
37. See docket no. 183 at 2.
38. See docket no. 189.
39. See docket no. 188.
40. See docket no. 189.
41. See id.
Source: Leagle
