Free Motion for Order - District Court of Colorado - Colorado

Case 1:03-cv-01041-PSF-BNB

Document 116

Filed 09/16/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COURT OF COLORADO ) ) ) Plaintiff, ) ) v. ) DAVID B. ST. GERMAIN and ) RANDY OVERLEY, ) ) Defendants. ) ____________________________________) UNITED STATES OF AMERICA,

Civil Action No. 03-cv-1041-PSF

UNITED STATES' MOTION FOR ORDER REQUIRING LARRY OVERLEY TO APPEAR AT TRIAL OR, IN THE ALTERNATIVE, DEEM POSTING THE SUBPOENA AS SUFFICIENT SERVICE The United States respectfully requests the Court issue an order requiring Larry Overley ("Overley") to appear for trial scheduled for September 19, 2005 or, in the alternative, deem posting the subpoena as sufficient service. In support, the United States states the following: 1) While Overley has notice that the Court scheduled the above captioned civil action for trial on September 19, 2005 and has notice that a process server has sought to serve a subpoena on him to appear as a witness at trial, he has decided to evade personal service of that subpoena. Therefore, the United States respectfully requests the Court to issue an order requiring Larry Overley ("Overley") to appear for trial scheduled for September 19, 2005 or, in the alternative, deem posting the subpoena as sufficient service. See Western resourses, Inc. v. Union Pacific Railroad Co. 2002 WL 1822432 (D. Kan.) ("The Federal Rules of Civil Procedure should not be construed as a shield for a witness who is purposefully attempting to evade service.") 2) Overley complied with the United States' subpoena to appear for deposition on June 6, 2005 and gave testimony in anticipation of the Court's then scheduled trial of September 12,

Case 1:03-cv-01041-PSF-BNB

Document 116

Filed 09/16/2005

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2005. Overley's brother, Randy Overley, is a named defendant. Moreover, Overley's mother, Nadine Overley, and sister, Kim Brack, as well as Randy Overley, also gave deposition testimony on or about June 6, 2005. Moreover, Overley's mother, Nadine Overley, and sister, Kim Brack, have been personally served subpoena to appear as witnessed trial. 3) Derek Minto ("Minto"), a Colorado process server, sought to personally serve a subpoena on Larry Overley requiring him to appear as a witness at the Court's scheduled September 19, 2005 trial date. Minto has made the following five attempts to serve the Court's subpoena on Overley: a. On August 31, 2005 Minto attempted to serve Overley at the excavation company he owns and operates. A person at that company told Minto Overley was out to lunch. This information was confirmed by a bulletin board that hangs in Overley's excavation company's business office. That board discloses whether an employ was in or out of the office. The person stated they did not know when Overley would return from lunch. b. On September 1, 2005, Minto attempted again to serve the Court's subpoena on Overley at his excavation company. A person at the company told Minto Overley would be out

until the next day. Significantly, Minto noted that Overley's name was removed from his excavation company's bulletin board detailing the whereabouts of employees. c. On September 6, 2005, Minto for the third time attempted to serve Overley at his excavation company. A person at the company told Minto Overley will be back on September 7, 2005. d. On September 7, 2005, Minto attempted a fourth time to serve the Court's subpoena upon Overley at his excavation company. Minto was told that Overley went on vacation until the end of the following week. At the time, the Court scheduled the trial for September 12

Case 1:03-cv-01041-PSF-BNB

Document 116

Filed 09/16/2005

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through September 15, 2005. e. On September 9, 2005, Minto attempted to serve a last time at Overley's residence. The blinds were pulled down and no one answered the door at Overley's residence. 4. Overley played a central role in the construction of the Franktown house that the United States seeks to impose a constructive trust upon for the benefit of St. Germain's crime victim. St. Germain retained Overley for the excavation of the Franktown property, which involved extensive excavation for the foundation and 300 foot roadway. His testimony will provide the Court important evidence to resolved this case favorable to St. Germain's crime victim. WHEREFORE, the United States respectfully request the Court to issue an Order requiring Larry Overley to appear to give testimony on September 20, 2005 or, in the alternative, deem posting the subpoena as sufficient service. Respectfully submitted, UNITED STATES OF AMERICA, WILLIAM J. LEONE United States Attorney

By: s/ Christopher Alberto CHRISTOPHER ALBERTO Special Assistant United States Attorneys United States Attorney*s Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3311 Dated: _September 16, 2005

Case 1:03-cv-01041-PSF-BNB

Document 116

Filed 09/16/2005

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Certificate of Service I hereby certify that a true copy of the above document was served upon David St. Germain, 4607 Timberglen, Apt. 2528, Dallas, TX 75287 by regular mail and Ty Gee by email at [email protected] September 16, 2005. S/ Christopher Alberto Christopher Alberto .