United States District Court, W.D. Missouri, Central Division
November 24, 2014
UNITED STATES OF AMERICA, Petitioner,
DELL VANDERPOOL, Respondent
For United States of America, Plaintiff: Lauren Kummerer, United States Attorney's Office-JCMO, Jefferson City, MO.
Dell Vanderpool, Respondent, Pro se, Centralia, MO.
REPORT AND RECOMMENDATION FOR ORDER OF CIVIL CONTEMPT
MATT J. WHITWORTH, United States Magistrate Judge.
On February 12, 2013, the United States filed a petition to enforce an administrative summons issued to Dell Vanderpool in December 2012, by the Internal Revenue Service (" IRS"), pursuant to 26 U.S.C. § 7602. (D.E. 1.) The petition was personally served on Vanderpool on June 17, 2013. (D.E. 6.) No answer was filed by Vanderpool.
On August 13, 2013, the United States moved for an order to show cause why Vanderpool should not be compelled to obey the Summons, and mailed a copy of that motion by certified mail to the Respondent. (D.E. 7.) On September 6, 2013, that certified mail, 7002 2030 0005 4700 2293, was returned to the Court, marked " Return to Sender Unclaimed Unable to Forward." (D.E. 10.) On August 14, 2013, the Court ordered Vanderpool to show cause why he should not be compelled to obey the Summons, and ordered that a copy of its order be personally served on Vanderpool. (D.E. 8.) The United States Marshals made three attempts to serve Vanderpool at his residence but were unsuccessful. (D.E. 11.)
Vanderpool failed to attend the show cause hearing which was subsequently held on October 1, 2013, and the undersigned issued a Report and Recommendation finding that Vanderpool had not responded in any way to show cause why the Summons at issue should not be enforced, and recommending that the Court order Vanderpool to comply. (D.E. 12, 13.) On October 1, 2013, the Report and Recommendation was mailed to Vanderpool at his residential address of 9051 North Reams Road, Centralia, Missouri 65240-4244. (D.E. 13.)
On December 23, 2013, this Court issued an Order adopting the Report and Recommendation of the undersigned, directing Vanderpool to comply with the Internal Revenue Service Summons that is the subject of this enforcement action. (D.E. 14.) The Court also ordered the Clerk of the Court to serve Vanderpool with a copy of its Order by regular and certified mail. (D.E. 14.) On January 27, 2014, certified mail 7001 0360 0003 3497 7877 was returned to the Court, marked " Return to Sender Undeliverable as Addressed Unable to Forward." (D.E. 15.) The copy of the Order sent to Vanderpool by regular mail was never returned, however, indicating that he continues to reside at 9051 North Reams Road, Centralia, Missouri 65240-4244. The Court's Order required Vanderpool to comply with the Summons on or before January 27, 2014, by meeting with Revenue Officer Adams and providing him with the documents, testimony and information listed in the Summons.
When Vanderpool again did not comply, and upon motion by the Government, the Court issued an April 3, 2014, Order that Vanderpool show cause why he should not be held in civil contempt. (D.E. 17.) That Order directed Vanderpool, on or before April 22, 2014, to " come into compliance with the Court's Orders or show cause why he should not be held in civil contempt for failure to comply with the orders of this Court." (D.E. 17:2.) A copy of the order was mailed, by first class mail, to the same address where Vanderpool was served with the original Petition to Enforce IRS Summons on June 17, 2013. (D.E. 6, 17.)
On July 10, 2014, the Court set a hearing in this case for September 10, 2014, at 11:15 a.m., in order for Vanderpool to show cause why he failed to comply with the IRS Summons or respond to the order to show cause. The Court directed the Clerk's Office to send Vanderpool a copy of the order to show cause by regular and certified mail, and ordered the United States Marshal Service to personally serve Vanderpool with a copy of the order. (D.E. 20.) After the certified mail was returned to the Clerk's Office and the United States Marshal's Service was unable to serve the order on Vanderpool, the Order was reissued on September 4, 2014, and a new hearing set for November 24, 2014, at 11:00 a.m. (D.E. 26.) On November 11, 2014, the Order was successfully served on the Respondent by leaving the Order to Show Cause with his wife at their home on November 11, 2014. (D.E. 29.) On November 24, 2014, Vanderpool failed to attend the show cause hearing scheduled before the undersigned, or respond in any way to show cause why he failed to comply with the IRS Summons and why he should not be held in civil contempt for failure to comply with the orders of this Court.
In light of Vanderpool's continuing refusal to attend hearings and to comply with the Court's prior orders and to comply with the IRS administrative summons, and upon the motion of the United States for an order finding Vanderpool in civil contempt and for the issuance of a writ of body attachment, and having considered the arguments presented, the Court hereby finds:
1. The United States, by reference to the pleadings in this case and the arguments presented to the Court, has established by clear and convincing evidence the existence of valid, clear and unambiguous court orders directed to Vanderpool and received by Vanderpool.
2. The United States, by reference to the pleadings in this case and the arguments presented to the Court, has established by clear and convincing evidence that Vanderpool has failed to comply with valid, clear and unambiguous court orders.
3. Vanderpool has failed to show that he has any present inability to comply with Court's orders to produce testimony, documents and records described in the IRS summons.
4. Vanderpool has failed to show why he should not be held in civil contempt for violating valid, clear and unambiguous court orders.
5. Throughout the course this litigation, Vanderpool repeatedly has demonstrated an utter contempt for the orders and authority of this Court.
6. Vanderpool's contempt has tended to defeat and impair the rights and interests of the United States, and to obstruct justice and bring the administration of justice into contempt.
In light of the foregoing findings, and for good cause adequately shown
IT IS HEREBY RECOMMENDED that the Court find Dell Vanderpool in civil contempt of this Court.
IT IS FURTHER RECOMMENDED that the Court issue a writ of body attachment out of and under the seal of this Court, directed to the United States Marshal for the Western District of Missouri, commanding the marshal to take the body of Dell Vanderpool, if he be found in this judicial district, and bring Dell Vanderpool before this Court to answer for his contempt.
IT IS FURTHER RECOMMENDED that the Court order Dell Vanderpool stand committed in the custody of the United States Marshal for the Western District of Missouri until such time as he purges the contempt by complying with the subject administrative summons, or until he shall be discharged sooner by order of this Court.
IT IS FURTHER RECOMMENDED that all costs arising out of the prosecution of this civil contempt order be assessed to and paid by Dell Vanderpool.
IT IS FURTHER RECOMMENDED that the Court reserve jurisdiction to take such other and further action and grant such other and further relief as may be determined to be just, reasonable and necessary to assure compliance with the Court's judgments and this contempt adjudication.