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United States v. Talmage

United States District Court, D. Utah, Central Division

March 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RONALD B. TALMAGE and ANNETTE C. TALMAGE, Defendants; and WESTERN LAND & LIVESTOCK, LLC, and WESTERN RESERVE MORTGAGE, LLC, Defendants and Counterclaim Plaintiffs,
v.
UNITED STATES OF AMERICA Counterclaim Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING [88] 56(D) MOTION

          David Nuffer, District Judge

         District Judge David Nuffer The United States moves under Federal Rule of Civil Procedure 56(d) to defer decision on the motion for summary judgment.[1] Defendants Western Land & Livestock, LLC and Western Reserve Mortgage, LLC (Western defendants) responded in opposition.[2] The government replied in support of its motion.[3]

         BACKGROUND

         The United States seeks to reduce federal tax assessments to judgment and foreclose federal tax liens on certain real property.[4] Before much or any discovery had been done, the Western defendants brought a Motion for Summary Judgment.[5] The thrust of that motion is that the Western defendants are the rightful owners of the real property, that the Western defendants are not subject to the tax assessments, and that accordingly the United States “cannot extinguish the Western [defendants'] interest in the [real property] via the tax judgment.”[6] The United States attempts to respond to the substance of the Western defendants arguments. And in the alternative, “if the Court is not inclined to deny the motion on its merits, ” filed this 56(d) Motion asking that the “United States have until thirty (30) days after the close of discovery to supplement the response.”[7]

         DISCUSSION

         Federal Rule of Civil Procedure 56(d) states that

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.

         “Unless dilatory or lacking in merit, [a Rule 56(d)] motion should be liberally treated.”[8]“The general principle of Rule [56(d)] is that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.”[9] Also, “[t]he movant's exclusive control of such information is a factor weighing heavily in favor of relief under Rule [56(d)].”[10]

         “A prerequisite to granting relief pursuant to Rule [56(d)] is an affidavit furnished by the nonmovant.”[11] Though the affidavit need not

contain evidentiary facts, it must explain why facts precluding summary judgment cannot be presented. This includes identifying the probable facts [for which proof is] not available and what steps have been taken to obtain these facts. In this circuit, the nonmovant also must explain how additional time will enable him to rebut movant's allegations of no genuine issue of fact.[12]

         The United States attached a declaration to its motion.[13] In that declaration, the attorney declares under penalty of perjury the following (divided into required averments):[14]

         1. “probable facts not available”:[15]

o That Ronald Talmage, not John Wadsworth and/or the Western Entities, actually owns the Liberty Property;
o That Ronald Talmage owns Asia Pacific Partners, LLC, and therefore controls at least one of the Western Entities directly;
o That Ronald Talmage, via Heng Cheong Pacific Limited (“HCPL”), actually paid for the Liberty Property;
o That “Mrs. Chen” and HCPL are fronts for Ronald Talmage;
o That the alleged “lease” with “Mrs. Chen” is fictitious, and merely served as a way for Ronald Talmage to purchase and live in the Liberty Property while hiding it from his creditors;
o That the alleged “loans” by HCPL to Fortus Property Group, LLC to pay for the Liberty Property are ...

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