4/24/09 – Plaintiffs ask to seek fugitive by publication
Texarkana Gazette
April 24, 2009
By: Lynn LaRowe
Plaintiffs ask to seek fugitive by publication
Two former followers of Tony Alamo Christian Ministries filed a motion Thursday asking the federal court permission to serve a fugitive defendant in the newspaper.
“We had hoped Mr. Kolbek would be in custody by now,” said Texarkana attorney David Carter of John Kolbek. “Since he hasn’t been captured, and because we need to move forward with the case, we are asking the court to allow us to serve him by publication.”
Carter filed the suit on behalf of two 18-year-old men on Nov. 25, 2008.
Spencer Ondrisek and Seth Calagna both claim to have been beaten by Kolbek with a 6-foot wooden paddle until bruised, bleeding and permanently scarred at Alamo’s direction while living with their parents on church property. The two men also claim to have been starved and forced to work unpaid.
They seek damages for battery, false imprisonment, outrage and conspiracy.
Alamo, who is being held in a downtown Texarkana jail pending his May sexual abuse trial, was served in December. He has an attorney actively defending him against Ondrisek’s and Calagna’s allegations.
But Carter hasn’t been able to serve Kolbek with the suit.
“Defendant Kolbek has been in hiding since the issuance of an arrest warrant arising out of the beating of plaintiff Seth Calagna in 2007,” said the motion. “Despite diligent inquiry on the part of plaintiffs and their attorneys, and the efforts of multiple federal, state and local law enforcement authorities, the whereabouts of defendant Kolbek remain unknown.”
Kolbek is not only wanted on second-degree battery charges in connection with Calagna’s alleged beating in Fort Smith, Ark., but by federal officials for unlawful flight from prosecution.
Federal law gives plaintiffs 120 days to serve defendants with a civil lawsuit.
U.S. District Judge Harry Barnes, Western District of Arkansas, Texarkana Division, gave Carter an extra 90 days to serve Kolbek in an order he signed March 18 that extended the deadline for service to June 25.
“The plaintiffs respectfully request the court grant them leave to serve defendant Kolbek by a Warning Order to be published weekly for two consecutive weeks in a newspaper having general circulation in Miller County, Ark …”
If Barnes grants the motion, Kolbek will have 30 days from the date of the first publication of the warning to file a written answer.
If Kolbek chooses to stay silent, Carter will then have the option of pursuing a default judgment against him on behalf of Calagna and Ondrisek.