United States District Court, D. Maine
ORDER ON MOTION FOR ATTACHMENT AND ATTACHMENT ON
C. Nivison U.S. Magistrate Judge
diversity action, Plaintiffs Deron Barton, Edmond Gosselin
and Erin McNally seek to recover unpaid wages from their
former employer, Defendant Village Mortgage Company.
Plaintiffs assert claims pursuant to a Maine statute, 26
M.R.S. § 626.
matter is before the Court on Plaintiffs' Motion for
Approval of Attachment and Attachment on Trustee Process (ECF
No. 18), through which motion Plaintiffs seek an attachment
in the amount of $262, 827.09. For the reasons set forth
below, following a review of the record and after
consideration of the parties' arguments, the Court grants
in part Plaintiffs' motion.
Village Mortgage Company (Village) is a Connecticut business
corporation that provides residential mortgage brokerage
services in several states, including Maine. (Affidavit of
Laurel Caliendo, ECF No. 23-1, ¶¶ 5-6.) Village
maintained a Portland, Maine, branch location from January
2018 until April 2019. (Id. ¶ 23.)
McNally was Branch Operations Manager at Village's
Portland office from January 3, 2018 to April 15, 2019.
(Affidavit of Erin McNally, ECF No. 18-2, ¶ 1.)
Plaintiff Gosselin was employed by Village as a Loan
Originator from November 5, 2018 until his resignation on
April 15, 2019. (Affidavit of Edmond Gosselin, ECF No. 18-4,
¶ 1.) Plaintiff Barton was Branch Manager and Senior
Loan Originator at the Portland location from January 3, 2018
until his resignation on April 15, 2019. (Affidavit of Deron
Barton, ECF No. 18-7, ¶ 1.) Plaintiffs allege that they
are owed commissions and/or bonuses according to the terms of
their respective employment agreements with Village.
Standard of Proof
to Federal Rule of Civil Procedure 64 and District of Maine
Local Rule 64, the Court applies Maine law when presented
with a motion for attachment and attachment on trustee
process. To obtain an attachment or an attachment on trustee
process, a plaintiff must demonstrate “that it is more
likely than not that the plaintiff will recover judgment,
including interest and costs, in an amount equal to or
greater than the aggregate sum of the attachment and any
liability insurance, bond, or other security, and any
property or credits attached by other writ of attachment or
by trustee process shown by the defendant to be available to
satisfy the judgment.” M.R. Civ. P. 4A(c), 4B(c). A
motion for an attachment or an attachment on trustee process
must be accompanied by an affidavit or affidavits setting
forth “specific facts sufficient to warrant the
required findings and shall 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.” M. R. Civ. P. 4A(i),
26 M.R.S. § 626
purpose of 26 M.R.S. § 626, which addresses compensation
upon the end of employment, is to “provide a broad
guarantee of prompt payment of wages to all employees on
termination.” Burke v. Port Resort Realty
Corp., 1999 ME 138, ¶ 9, 737 A.2d 1055, 1059.
Section 626 provides in pertinent part:
An employee leaving employment must be paid in full no later
than the employee's next established payday. Any
overcompensation may be withheld if authorized under section
An employer found in violation of this section is liable for
the amount of unpaid wages and, in addition, the judgment
rendered in favor of the employee or employees must include a
reasonable rate of interest, an additional amount equal to
twice the amount of those wages as liquidated damages and
costs of suit, including a reasonable attorney's fee.
Maine Law Court has determined that section 626 is
unambiguous. Bisbing v. Maine Med. Ctr., 2003 ME 49,
¶ 5, 820 A.2d 582, 584. “Section 626 requires an
employer to pay at least the undisputed wages owed regardless
of whether the parties dispute the exact amount of wages
owed.” Burke, 1999 ME 138 at ¶ 16, 737
A.2d at 1060. Unlike similar statutes in other jurisdictions,
“section 626 does not have a ‘bona fide
dispute' exception.” Id. Moreover, there
is “no hint in the statute that treble damages and
attorney fees can be awarded only on a showing that the
employer has acted in bad faith.” Bisbing,
2003 ME 49 at ¶ 5, 820 A.2d at 584.
determine the amount, if any, that an employer owes, the Law
[a]lthough section 626 creates a statutory right for former
employees to seek payment, entitlement to payment is governed
solely by the terms of the employment agreement. Rowell
v. Jones & Vining, Inc., 524 A.2d 1208, 1210-11 (Me.
1987). Therefore, pursuant to section 626, a former employee
may only claim what is owed according to the terms of the
employment agreement; section 626 does not modify or
supercede its terms.
Richardson v. Winthrop School Dept., 2009 ME 109,
¶ 7, 983 A.2d 400, 402. “The employment agreement,
not section 626, governs how wages are earned and, if
specified, when wages are to be paid.” Burke v.
Port Resort Realty Corp., 1998 ME ...