USA v. Fraughton et al

Filing 45

MEMORANDUM DECISION and Orderfinding as moot 15 Mr. Fraughton's Motion to Compel and finding as moot 22 Motion to Strike ; granting 38 the United State's Motion to Compel. If the United States has not already responde d to Mr. Fraughtons requests for admissions, it must do so on or before February 27, 2015. Mr. Fraughton must respond to the outstanding discovery on or before February 27, 2015, and cooperate in scheduling his deposition. Signed by Magistrate Judge Paul M. Warner on 2/6/2015. (jds)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

UNITED STATES OF AMERICA,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
VERNON D. FRAUGHTON, an
individual; and OFFICE OF FIRST
PRESIDING OVERSEER FOR THE
POPULAR ASSEMBLY OF SHARED
ENLIGHTENMENT MINISTRY,
VERNON D. FRAUGHTON, FIRST
PRESIDING OVERSEER;
Defendants.

Case No. 2:14cv213

District Judge Dale A. Kimball
Magistrate Judge Paul M. Warner

District Judge Dale A. Kimball referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(B).1 Before the court are the following motions: (1) Vernon
D. Fraughton’s (“Mr. Fraughton”) motion for an order to compel responses to his requests for
admission;2 (2) Mr. Fraughton’s motion to strike the United States of America’s (“United States”)
response to his motion to compel;3 and (3) the United States’s motion to compel discovery.4 The
court has carefully reviewed the written memoranda submitted by the parties. Pursuant to civil

1

See docket no. 9.

2

See docket no. 15.

3

See docket no. 22.

4

See docket no. 38.

rule 7-1(f) of the Rules of Practice for the United States District Court for the District of Utah,
the court has concluded that oral argument is not necessary and will determine the motions on
the basis of the written memoranda. See DUCivR 7-1(f).
As an initial matter, the court notes that Mr. Fraughton is appearing pro se. As such, the
court will “construe his pleadings liberally and hold the pleadings to a less stringent standard
than formal pleadings drafted by lawyers.” Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.
1996). That said, “pro se status does not relieve [a party] of the obligation to comply with
procedural rules.” Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002).
RELEVANT BACKGROUND
The United States brought this action to reduce to judgment the outstanding federal tax
liabilities assessed against Mr. Fraughton and to foreclose federal tax liens against a parcel of
real property located in American Fork, Utah (“Property”). Between June 6, 1967, and March 5,
1993, several warranty deeds and/or quit claim deeds were recorded with the Utah County
Recorder transferring the Property among Mr. Fraughton, Carol F. Fraughton, and trustees of the
Fraughton Family Trust.
On or about April 16, 1999, a Declaration of Land Patent was recorded with the Utah
County Recorder representing that Mr. Fraughton patents the Property. On or about June 15,
2006, an Assignment of Land Patent was recorded with the Utah County Recorder purporting to
transfer the land patent pertaining to the Property to the Office of First Presiding Overseer for the
Popular Assembly of Shared Enlightenment Ministry, Vernon D. Fraughton, First Presiding
Overseer (“Office of Overseer”). On or about June 22, 2007, a quit claim deed and a warranty
deed were recorded with the Utah County Recorder purporting to transfer the Property from Mr.

2

Fraughton to the Office of Overseer. On February 12, 2010, in a telephone interview with an
employee of the IRS, Mr. Fraughton admitted that, notwithstanding the purported transfers
detailed above, he was the owner of the Property.
DISCUSSION
A. Mr. Fraughton’s Motion to Compel and Motion to Strike
Mr. Fraughton served requests for admission on the United States prior to the parties’
scheduling conference under rule 16 of the Federal Rules of Civil Procedure and DUCivR 16-1.
As is evidenced through the briefing of Mr. Fraughton’s motion to compel and motion to strike,
the parties dispute whether Mr. Fraughton’s requests for admission served prior to the scheduling
conference were proper under the various procedural rules. See Fed. R. Civ. P. 16 & 26(f);
DUCivR 16-1(a)(1)(A)(ii). However, since the filing and briefing of Mr. Fraughton’s motions,
the parties have participated in an Initial Pretrial Conference with Magistrate Judge Evelyn J.
Furse,5 and a scheduling order has been issued.6 Thus, the parties’ respective arguments about
whether or not the United States is required to respond to Mr. Fraughton’s requests for admission
before the scheduling conference have been rendered MOOT. That said, if the United States has
not yet responded to Mr. Fraughton’s requests, it must do so on or before February 27, 2015.
B. The United States’s Motion to Compel
On October 23, 2014, the United States filed its motion to compel Mr. Fraughton to
attend his deposition and to respond to the United States’s discovery requests. Mr. Fraughton has
failed to file a responsive memorandum, and the time for doing so has passed. See DUCivR 75

See docket no. 30.

6

See docket no. 41.
3

1(b)(4)(B) (“A memorandum opposing any motion that is not a motion filed pursuant to Fed. R.
Civ. P. 12(b), 12(c), and 56 must be filed within fourteen (14) days after service of the motion.”).
Thus, the court could grant the United States’s motion on this basis alone. See DUCivR 7-1(d)
(“[F]ailure to respond timely to a motion may result in the court’s granting the motion without
further notice.”).
On September 16, 2014, the United States served Mr. Fraughton with its first set of
discovery requests, consisting of requests for production of documents and interrogatories. The
United States noted in its discovery requests that under the relevant rules, responses were due
within thirty (30) days. See Fed. R. Civ. P. 33 & 34. Mr. Fraughton failed to respond to the
discovery requests. On October 21, 2014, counsel for the United States contacted Mr. Fraughton
by telephone and asked if had responded or intended to respond to the requests for production
and/or the interrogatories. Mr. Fraughton stated that he would not respond to any of these
discovery requests.
On September 18, 2014, the United States noticed Mr. Fraughton’s deposition for
October 1, 2014, at 11:00 a.m. at its offices. On September 29, 2014, Mr. Fraughton called
counsel for the United States and indicated that he would not attend the scheduled deposition
because the court lacked jurisdiction over this case. Counsel for the United States informed Mr.
Fraughton that the deposition would proceed at the date and time scheduled, and further
informed him that if he did not attend the deposition, the United States would file a motion to
compel his attendance at a deposition and for sanctions. On September 30, 2014, Mr. Fraughton
hand-delivered a document to counsel for the United States indicating that he would not be
attending his deposition. Indeed, Mr. Fraughton failed to appear at his scheduled deposition.

4

Under rule 37(a)(3)(B) and (d)(1)(A), when a party fails to produce documents, serve
answers to discovery requests, or appear for a properly noticed deposition, the court may issue an
order compelling production, responses, and appearance at a deposition. Because Mr. Fraughton
has failed to participate in discovery or respond to the instant motion, the United States’s motion
to compel is GRANTED. Mr. Fraughton is ORDERED to appear at his deposition and to fully
comply with the United States’s discovery requests. The parties should attempt to find a
mutually convienent time for the deposition. If Mr. Fraughton refuses to cooperate in that
process, the United States may unilaterally schedule and notice Mr. Fraughton’s deposition. Mr.
Fraughton must also provide responses to the requested discovery on or before February 27,
2015.
As noted by the United States, the court may also impose any of the sanctions listed in
rule 37(b)(2)(A)(i)-(vi), as well as require Mr. Fraughton “to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). Because Mr.
Fraughton has not responded to the instant motion, he has not demonstrated to the court that his
failure was substantially justified, nor has he presented other circumstances that would make an
award of expenses unjust. Accordingly, this court awards sanctions against Mr. Fraughton. The
United States must file a cost memorandum detailing the reasonable expenses, including attorney
fees, caused by Mr. Fraughton’s failure to participate in discovery.
In summary, IT IS HEREBY ORDERED that Mr. Fraughton’s motion to compel and
motion to strike has been rendered MOOT. If the United States has not already responded to
Mr. Fraughton’s requests for admissions, it must do so on or before February 27, 2015. The

5

United States’s motion to compel is GRANTED. Mr. Fraughton must respond to the
outstanding discovery on or before February 27, 2015, and cooperate in scheduling his
deposition. Should Mr. Fraughton fail to honor his discovery obligations as described above, this
court will order further sanctions, which may include a recommendation to Judge Kimball to
enter judgment against him.
IT IS SO ORDERED.
DATED this 6th day of February, 2015.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

6