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United States v. Talmage

United States District Court, D. Utah, Northern Division

November 7, 2018

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

          David Nuffer District Judge.

          REPORT AND RECOMMENDATION

          PAUL M. WARNER Chief United States 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 ...


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