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Chase v. Merson

United States District Court, D. Maine

June 1, 2018

JOHN F. CHASE, Plaintiff
v.
ARTHUR MERSON, et al., Defendants

          AMENDED MEMORANDUM DECISION ON MOTION FOR EX PARTE ATTACHMENT [1]

          JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE.

         The plaintiff seeks an ex parte attachment against the property of each of the defendants in the amount of $500, 000, the sum that he alleges he lost as the result of a fraudulent investment scheme. See Plaintiff's Ex Parte Motion for Attachment on Trustee Process (“Motion”) (ECF No. 3) at 1-2. For the reasons that follow, the Motion is denied without prejudice on the showing made.

         I. Applicable Legal Standard

         This court applies Maine law pertaining to the seizure of “a person or property to secure satisfaction of the potential judgment.” Fed.R.Civ.P. 64(a).[2] The plaintiff states that he seeks ex parte attachment on trustee process, see Motion at 1, which is governed by Maine Rule of Civil Procedure 4B, but cites Maine Rule of Civil Procedure 4A, see id. at 2-3, 11, which pertains to attachment of “real estate, goods and chattels and other property[, ]” Me. R. Civ. P. 4A(a). For purposes of disposition of the instant motion, there is no substantive difference: with immaterial wording differences, the showing required for the grant of an ex parte attachment pursuant to Rule 4A and Rule 4B is identical. Compare Me. R. Civ. P 4A(g) with Me. R. Civ. P. 4B(i). Therefore, I set forth only the pertinent text of Rule 4A.

         Rule 4A provides that, to grant a motion for attachment on an ex parte basis, the court must find that:

it is more likely than not that the plaintiff will recover judgment in an amount equal to or greater than the aggregate sum of the attachment and any insurance, bond, or other security, and any property or credits attached by other writ of attachment or by trustee process known or reasonably believed to be available to satisfy the judgment, and that either (i) there is a clear danger that the defendant if notified in advance of attachment of the property will remove it from the state or will conceal it or will otherwise make it unavailable to satisfy a judgment, or (ii) there is immediate danger that the defendant will damage or destroy the property to be attached.

         Me. R. Civ. P. 4A(g). Rule 4A further provides:

The motion for such ex parte order shall be accompanied by a certificate by the plaintiff's attorney of the amount of any insurance, bond, or other security, and any other attachment or trustee process which the attorney knows or has reason to believe will be available to satisfy any judgment against the defendant in the action. The motion, in the filing of which the plaintiff's attorney shall be subject to the obligations of Rule 11, shall be supported by affidavit or affidavits meeting the requirements set forth in subdivision (i) of this rule.

Id. Pursuant to subdivision (i), affidavits must “set forth specific facts sufficient to warrant the required findings and . . . be upon the affiant's own knowledge, information or belief; and, so far as upon information and belief, shall state that the affiant believes this information to be true.” Me. R. Civ. P. 4A(i).

         The plaintiff supplies both a certificate of his attorney, see Motion at 11, and an affidavit, see Affidavit of John F. Chase (“Chase Aff.”) (ECF No. 10).

         II. Discussion

         A. Factual Background

         The plaintiff alleges that:

1. The defendants “fraudulently induced [him] to participate in an investment opportunity which [they] falsely represented would yield substantial returns with little-to-no-risk[, ]” specifically, that “for every $250, 000 [the plaintiff] invested in certain standby letters of credit, he would receive $10, 000, 000 within ...

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