BUSBIN v. EXCAVATOR'S TRANSPORT, LLC et al
ORDER ON MOTION FOR HEARING - Plaintiff's motion for hearing 17 is denied, as are the parties' respective requests for an award of attorney's fees. SEE ORDER. Signed by Magistrate Judge Tim A. Baker on 11/13/2023. (JRB)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EXCAVATOR'S TRANSPORT, LLC,
ORDER ON MOTION FOR HEARING
This cause is before the Court on Plaintiff James Busbin's motion seeking a hearing to set
a security bond and/or attach certain property of Defendants Excavator's Transport, LLC, and
Taylor Federici to secure judgment. [Filing No. 17.] This motion is somewhat unusual because,
by all indications, this is a relatively straightforward case involving claims under the Fair Labor
Standards Act and Indiana's wage payment statute. Yet for reasons that are not clear—and that
certainly are not explained in Plaintiff's two-page motion or reply brief—Plaintiff asks the Court
to order Defendant Federici to appear at a hearing and bring information regarding Excavator's
Transport's bank accounts, real and tangible property, and people or entities that owe Defendants
money. The only justification Plaintiff offers in support of his motion is that Indiana Trial Rule
64 (incorporated through Fed. R. Civ. P. 64) says he can.
Defendants' response asserts that Indiana Trial Rule 64(A)(1) provides that the relief
Plaintiff seeks is available "under the circumstances and in the manner provided by law and
existing at the time the remedy is sought." Defendants note that Indiana Trial Rule 64(B) sets
forth several instances in which attachment shall be allowed, but they argue that none of those
circumstances exist here. [Filing No. 18, at ECF p. 2.] Defendants further note that Indiana
Code § 34-25-2-4 requires that a plaintiff seeking remedies such as those sought by Plaintiff
make an affidavit showing: (1) the nature of the claim; (2) that the claim is just; (3) the amount
to be recovered; and (4) that one of the grounds for an attachment enumerated in Indiana Code §
34-25-2-1 is present. Plaintiff has provided no affidavit or other showing. In reply, Plaintiff
counters that he has chosen to rely exclusively on Trial Rule 64, and that Defendants' response is
"meaningless." [Filing No. 20, at ECF p. 1.] The Court disagrees.
In Vukadinovich v. Posner, No. 2:22-cv-118-TLS-JPK, 2023 WL 4348059, at *3, n.7
(N.D. Ind. July 3, 2023), the court stated in a footnote, "From a cursory review of Indiana Trial
Rule 64, it does not appear that provision contains any circumstances for attachment potentially
relevant here that are not also found in Ind. Code § 34-25-2-1. Therefore, it is unlikely that
consideration of that rule would change the analysis." And in Wayne Manufacturing LLC v.
Cold Headed Fasteners and Assemblies Inc., No. 1:21-cv-290-HAB-SLC, 2022 WL 2704478, at
*2 (N.D. Ind. July 12, 2022), the court stated, "Thus, as Wayne Manufacturing asserts, Federal
Rule of Civil Procedure 64(a) directs the Court to look at Indiana law on prejudgment
attachment. Indiana law includes two authorizations for prejudgment attachment: Indiana Code
Section 34-25-2-1 and Indiana Rule of Trial Procedure 64(b)." (Internal citation omitted).
The foregoing authorities—in addition to common sense—support the conclusion that
Plaintiff cannot simply file a motion, cite to Indiana Trial Rule 64, and insist that Defendants be
ordered into court with bank and other records, secure a bond, and/or have property attached
based solely upon the fact that Plaintiff has filed suit against Defendants. Plaintiff needs to make
a more significant showing to justify the relief sought, and Plaintiff has fallen far short of doing
so. Accordingly, Plaintiff's motion for hearing [Filing No. 17] is denied, as are the parties'
respective requests for an award of attorney's fees.
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
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