WIGGIN v. ENSWORTH

Filing 13

MEMORANDUM OF DECISION granting 4 Motion for Attachment & Trustee Process. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
EMILIE I. WIGGIN,
Plaintiff
v.
GARY L. ENSWORTH,
Defendants

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) 1:11-cv-00236-DBH
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MEMORANDUM OF DECISION ON MOTION
FOR ATTACHMENT AND TRUSTEE PROCESS
For the reasons that follow, the motion for attachment and trustee process is granted in
the amount of $ 300,000.00.
Applicable Legal Standards
In accordance with Federal Rule of Civil Procedure 64 and Local Rule 64, this court
looks to Maine law and procedure in adjudicating a motion for attachment or trustee process.
The plaintiff must show that it is more likely than not that he will recover judgment, including
interest and costs, in an amount equal to or greater than the aggregate sum of the attachment or
trustee process plus any 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. Me. R. Civ. P. 4A(c),(g), 4B(c),(i). A motion for attachment or 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.” Me. R. Civ. P. 4A(i), 4B(c).

Furthermore, pursuant to both Rule 4A(h) and 4B(j) a defendant may request upon
motion and notice to modify an attachment previously entered, whether entered ex parte or after
hearing, if specific property or sufficient cash or bond is available to satisfy the potential
judgment.
Discussion
This motion for attachment arises in the context of a complaint about breach of contract
in a dispute involving the construction of plaintiff’s home in Blue Hill, Maine. Defendant was
retained in a dual capacity, as a subcontractor and project manager to oversee construction of the
home and disburse plaintiff’s funds to various other subcontractors. Among his duties, the
defendant collected bills from various subcontractors and submitted them to plaintiff or her
agents for payment. Four subcontractors aver by way of affidavits (Doc. Nos. 4-2, 4-3, 4-4, and
4-6) that they billed a total of $377,090.80 for work they performed during construction.
However, defendant furnished invoices to plaintiff showing falsified and inaccurate amounts
owing to the four subcontractors that totaled $654,925.07. Plaintiff paid defendant in reliance on
his invoices, resulting in an overpayment of $277,834.27. For a summary, see paragraph 4 of
Exhibit A, the Affidavit of Theodore K. Wiggin. (Doc. No. 4-1). Additionally, as partial
compensation for his services, defendant was paid five percent of the amount charged by and
paid to subcontractors, which therefore included at least another $13,891.71 in overpayment to
defendant, resulting in a total claim of $291,725.98. (Compl. ¶ 9).
Given the content of the various affidavits, it appears that it is more likely than not that
plaintiff will receive a judgment in an amount at least as great as $300,000.00, considering there
is a claim for costs and punitive damages as well as the principal amount claimed due and owing.
Defendant’s response to the various affidavits relies entirely upon his general denial by way of

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answer and the brief memorandum submitted in opposition which merely states that his version
of the oral contract between himself and the plaintiff will ultimately be found more persuasive.
The defendant does not explain what his version of the oral contract looks like or why the
various subcontractors would submit affidavits claiming that documents submitted by the
defendant to plaintiff were fraudulent. This case, on the present record, is more than a he
said/she said swearing dispute because four apparently neutral subcontractors have submitted
affidavits stating they never prepared or submitted the invoices submitted by defendant and paid
by plaintiff. I am satisfied that plaintiff has met her burden of persuasion and that an attachment
and trustee process should issue for the amount indicated.
Defendant’s other argument in opposition to the motion is that the attachment/trustee
process would create a hardship for him, his business, and his family. However, defendant does
not offer any real estate, insurance or other property that could be used as security in lieu of a
general attachment and trustee process. While I am not unsympathetic to those concerns,
plaintiff has made the necessary showing to be entitled to the writ.
Conclusion
Based upon the foregoing, the motion for attachment and trustee process is granted. A
separate writ of attachment and trustee process will issue forthwith,

CERTIFICATE
Any objections to this Order shall be filed in accordance with Fed.R.Civ. P. 72.
So Ordered.
August 30, 2011
/s/ Margaret J. Kravchuk
U.S. Magistrate Judge

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