United States District Court, D. Utah, Northern Division
Nuffer District Judge.
REPORT AND RECOMMENDATION
M. WARNER Chief United States Magistrate Judge.
Judge David Nuffer referred this case to Chief Magistrate
Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). 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
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.
complaint in this action was filed on February 18,
Talmages were named as defendants in the
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
b. The United States determined that that the Talmages lived
at a property in Liberty, Utah (the “Liberty
c. Brunson attempted to serve the Talmages at the Liberty
Property ten separate dates between February 29 and April 14,
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.
e. Brunson also attempted to serve the Talmages at their
local church on three separate Sundays between March 13 and
Unable to locate or serve the Talmages personally, the United
States filed a motion for leave to serve the Talmages by
alternative means. On May, 19, 2016, the court granted the
United States leave to serve the Talmages by
Service of process upon the Talmages was completed on June
Default Judgment was entered against the Talmages on August
February 27, 2018, the United States personally served the
Talmages with deposition subpoenas at an RV park in Dripping
Springs, Texas (the “RV Park”).
a. The process server approached a travel trailer and saw a
man and a woman through the window. 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].” 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.
b. The process server reported that he said “Hi, Mrs.
Talmage” to which the woman inside replied
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.
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
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.
Depositions were set for August 1, 2018 and August 2, 2018 in
Austin, Texas, near Dripping Springs, Texas.
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.
August 1 and 2, 2018, counsel for the United States appeared
in Austin, Texas for the depositions, but ...